Sunday, January 21, 2007


Re-Print from Globe and Mail


Legalize prostitution, for all our sakes
How do we stop the disappearance and killing of sex-trade workers? asks law professor ALAN YOUNG

From Friday's Globe and Mail

The Robert Pickton trial, which finally starts on Monday, will receive a great deal of attention in light of the fact that, if all the allegations against him are proved beyond a reasonable doubt, he would become the most notorious and prolific serial killer in Canadian history. Ultimately, this long trial will only answer one question: Is Robert Pickton responsible for the deaths of six prostitutes allegedly buried on his pig farm?

Criminal trials are only designed to impute responsibility and punish those who inflict harm, so this trial will not in any way address the larger political issue of how to prevent the continuing disappearances and killings of sex-trade workers.

The first modern serial killer, Jack the Ripper, preyed London prostitutes in the late 19th century and, as last year drew to a close, we were inundated with stories of serial killings of prostitutes in Ipswich, England, to sadly remind us that Jack the Ripper was not a freak aberration but a trendsetter.

While the jury in the Pickton case will be hearing evidence about the disappearance and death of sex-trade workers in British Columbia, it must be remembered that Project Kare in Edmonton is still trying to determine the whereabouts of more than 80 women in "high risk" professions who have disappeared in recent years. Research indicates that female sex-trade workers are exposed to a homicide rate that is about 100-per-cent higher than the homicide rate for women in Canada and that the clearance rate (the rate of solving crime) for homicide is a dismal 34 per cent when the victim is a prostitute compared with 77 per cent for the rest of us. Every government report written in the past 20 years has acknowledged that street prostitution is a dangerous business; but, even as the body count continues to rise, nothing is done.

Nothing will change until it is recognized that the criminal law itself bears some responsibility for giving predators such as Gary Ridgway the opportunity to act on their malicious fantasies. We will continue to dig up dead bodies of prostitutes in secluded urban alleys if we maintain imbecilic criminal prohibitions on commercial sex.

Prostitution per se is not illegal, but a series of criminal prohibitions makes it virtually impossible to conduct this legal business in a safe environment. Pushing sex for hire into a black market opens a Pandora's box of horror. Hookers cannot rely on state officials to protect them from evil johns. Some are compelled to work with pimps in order to secure protection and territorial exclusivity. The sex-trade worker cannot recruit the services of a bona fide bodyguard, manager, driver or any other type of security personnel because these employees could be charged with living on the avails of prostitution. The sex-trade worker cannot extricate herself from the chaotic violence of the streets by moving indoors because moving into this more secure setting could lead to more serious bawdy house charges. Left to work on dark, isolated streets, the sex-trade worker is prohibited from having a meaningful conversation to screen drive-by johns because "communicating for the purpose of prostitution" is a crime.

As more and more prostitutes disappear, we must start to question the value of a law that allows one to work as a prostitute but denies the worker all the various protections relating to occupational health and safety. Surely we are not protecting women with the criminal law when these very laws expose women to daily violence? I can understand the concerns of property owners and members of the community who do not want their street corners turned into drive-through sex shops, but this is a matter of proper municipal regulation.

You do not have to read Freud to know that our species is always on the lookout for sexual outlets. And when the pleasure does not present itself, some will go to the marketplace to buy a fleeting moment of pleasure. There is nothing the state can do about this. Every time a prostitute is arrested, there are two to take her place. This is a bottomless market. I'm sure that some police officers, lawyers, judges and political leaders have entered this market on occasion, but they can never admit this because it would undercut their authority to arrest, prosecute and punish.

We call prostitution the world's oldest profession for good reason. Prostitution flourished in biblical times. When Jesus reprimanded the priestly caste for wanting to stone a prostitute, it should have signalled the end of the punitive approach to this social dilemma. Jesus said only those without sin should cast the first stone; somehow, over the ages, this has been transformed into a licence for a multitude of petty sinners to cast many stones in the direction of hookers. Last I looked, we have been casting 6,000 to 10,000 criminal charges a year, but the business continues to thrive.

It remains unclear what it is we hope to accomplish with prohibitions on commercial sex. For many people, the issue is not a matter of rational discourse but a visceral reaction to the commodification of sex. Many people consider sex to be sacred. It is all about making love, and the commercialization of sexuality is seen as morally repugnant and degrading. This Hallmark card approach to sex is fine, but, in a pluralistic, secular society, the sanitized and sanctified vision of sexuality is just one of many competing moral perspectives.

Sex-trade workers have had an enormous fall from grace in the past millennium, going from being sacred temple harlots to marginalized outcasts exposed to all manner of violence, abuse and ridicule. Even if you believe that all sex work is degrading or immoral, I cannot see how this can morally justify doing nothing about abduction and murder. With a shift in legal perspective and the removal of legal obstacles standing in the way of safe sex work, we may be able to save lives. In any moral school of thought, the sanctity of life trumps sexual morality.

Alan Young is an associate professor of law at York University's Osgoode Hall Law School.