The next frontier of judicial activism?

A court in Canada has struck down that country’s laws against prostitution, saying they are unconstitutional.  See this.

About Gene Veith

Professor of Literature at Patrick Henry College, the Director of the Cranach Institute at Concordia Theological Seminary, a columnist for World Magazine and TableTalk, and the author of 18 books on different facets of Christianity & Culture.

  • http://www.bikebubba.blogspot.com Bike Bubba

    Notice the logic; it’s a recent addition to their constitution, interpreted rather broadly, and without a serious look into the fact that….sad to say, prostitutes don’t fare much better where it’s legal than where it is not.

  • http://www.bikebubba.blogspot.com Bike Bubba

    Notice the logic; it’s a recent addition to their constitution, interpreted rather broadly, and without a serious look into the fact that….sad to say, prostitutes don’t fare much better where it’s legal than where it is not.

  • Leslie4

    This is not a decision that is for all of Canada – yet. So far this was done by a court in Ontario – the federal court is talking about appealing this decision.

    I heard an interview with a chief of police who said that this will not protect prostitutes. This assumes that women are choosing this lifestyle, and simply want to conduct business in a more professional way. He said that does not represent most of the women involved; they are exploited, they do this because of their drug addiction, they don’t want this ‘occupation’. They are not about to hire accountants and security guards.

  • Leslie4

    This is not a decision that is for all of Canada – yet. So far this was done by a court in Ontario – the federal court is talking about appealing this decision.

    I heard an interview with a chief of police who said that this will not protect prostitutes. This assumes that women are choosing this lifestyle, and simply want to conduct business in a more professional way. He said that does not represent most of the women involved; they are exploited, they do this because of their drug addiction, they don’t want this ‘occupation’. They are not about to hire accountants and security guards.

  • WebMonk

    Bike, the statement that prostitutes don’t fair much better when prostitution is legal than when it is illegal is blatantly false. There are several countries (European) which have completely legalized prostitution and brothels, turning them into regular sorts of businesses. (well, sort of regular)

    There have been a LOT of studies looking at those situations. I suspect researches enjoy researching brothels and prostitutes – “I had to test the services to make sure they were of high enough quality!” :-D

    The prostitutes (or whatever term is used) in those countries are MUCH better off than prostitutes in countries where it is illegal.

    Don’t get me wrong – I’m not saying that it is sufficient reason to legalize prostitution – but saying that legalizing prostitution doesn’t lead toward better conditions for the prostitutes is not accurate.

    In this case, Canada did a half-ways legalization. Prostitution itself was legalized, but a host of things associated with prostitution were left illegal which effectively kept prostitution illegal.

  • WebMonk

    Bike, the statement that prostitutes don’t fair much better when prostitution is legal than when it is illegal is blatantly false. There are several countries (European) which have completely legalized prostitution and brothels, turning them into regular sorts of businesses. (well, sort of regular)

    There have been a LOT of studies looking at those situations. I suspect researches enjoy researching brothels and prostitutes – “I had to test the services to make sure they were of high enough quality!” :-D

    The prostitutes (or whatever term is used) in those countries are MUCH better off than prostitutes in countries where it is illegal.

    Don’t get me wrong – I’m not saying that it is sufficient reason to legalize prostitution – but saying that legalizing prostitution doesn’t lead toward better conditions for the prostitutes is not accurate.

    In this case, Canada did a half-ways legalization. Prostitution itself was legalized, but a host of things associated with prostitution were left illegal which effectively kept prostitution illegal.

  • http://www.utah-lutheran.blogspot.com Bror Erickson

    I find it hard to argue against prostitution from a legal or constitutional basis. And yes Prostitutes in legal brothels of Europe do seem to fair a bit better.
    But Leslie4 is right. Most women in this profession are not their by choice. This is the exploitation of women. A woman who decides for whatever reason that she would do this for a profession is one thing. But in the grand majority of the cases throughout the world, here in the United States and Canada, the women are victims of what can only be called slavery.
    My biggest problem with the current prostitution laws is they do very little to nothing to protect the women or help the women who are being exploited by this. In Nevada pimping is illegal whereas prostitution is not. (I’m not sure how that works out in reality) In Sweden prostitution is legal but Johning is not.
    But rather than busting up the illegal brothels, and helping the women, we threaten them with Jail if they get caught. How does that address the problem of human trafficking, and exploitation? It doesn’t it just makes the victims of the crime just as much afraid of the law as they are of their pimps.

  • http://www.utah-lutheran.blogspot.com Bror Erickson

    I find it hard to argue against prostitution from a legal or constitutional basis. And yes Prostitutes in legal brothels of Europe do seem to fair a bit better.
    But Leslie4 is right. Most women in this profession are not their by choice. This is the exploitation of women. A woman who decides for whatever reason that she would do this for a profession is one thing. But in the grand majority of the cases throughout the world, here in the United States and Canada, the women are victims of what can only be called slavery.
    My biggest problem with the current prostitution laws is they do very little to nothing to protect the women or help the women who are being exploited by this. In Nevada pimping is illegal whereas prostitution is not. (I’m not sure how that works out in reality) In Sweden prostitution is legal but Johning is not.
    But rather than busting up the illegal brothels, and helping the women, we threaten them with Jail if they get caught. How does that address the problem of human trafficking, and exploitation? It doesn’t it just makes the victims of the crime just as much afraid of the law as they are of their pimps.

  • DonS

    The issue appears to be, as Webmonk said, that prostitution itself had been legalized, but there were still criminal laws on the books prohibiting other aspects of the “trade”, such as pimping and streetwalking. So the argument was that this created undue danger to women practicing the “trade”, which violated some nebulous new provision of Canada’s constitution according to this particular judge.

    The lesson here probably is threefold. First, don’t legalize prostitution unless you enjoy all of the other seedy aspects of it. Second, don’t clutter up your constitution with vague feel-good PC provisions that can be interpreted any way that a judge feels like interpreting them (hint — 131 page trial court opinions are usually garbage — if you have a good basis for your decision you can say it succinctly). Third, this case was pursued using “legal aid” funding. That means either some donors who thought they were helping poor people secure shelter or child support got shafted or the taxpayers got shafted. Lesson — don’t donate to legal aid organizations unless you know what they will and won’t do with that money.

  • DonS

    The issue appears to be, as Webmonk said, that prostitution itself had been legalized, but there were still criminal laws on the books prohibiting other aspects of the “trade”, such as pimping and streetwalking. So the argument was that this created undue danger to women practicing the “trade”, which violated some nebulous new provision of Canada’s constitution according to this particular judge.

    The lesson here probably is threefold. First, don’t legalize prostitution unless you enjoy all of the other seedy aspects of it. Second, don’t clutter up your constitution with vague feel-good PC provisions that can be interpreted any way that a judge feels like interpreting them (hint — 131 page trial court opinions are usually garbage — if you have a good basis for your decision you can say it succinctly). Third, this case was pursued using “legal aid” funding. That means either some donors who thought they were helping poor people secure shelter or child support got shafted or the taxpayers got shafted. Lesson — don’t donate to legal aid organizations unless you know what they will and won’t do with that money.

  • http://www.toddstadler.com/ tODD

    The article doesn’t address the question I have, which is: how did prostitution itself come to be legal in Canada in the first place? Was that a change? When did it occur, and why? What arguments were made, and by whom? I’m asking because I’m hoping there’s someone here with more knowledge of Canadian law than I could find by mere Googling.

    In light of the fact that prostitution was, technically, legal in Canada, I really don’t get the reaction of the federal government here.

  • http://www.toddstadler.com/ tODD

    The article doesn’t address the question I have, which is: how did prostitution itself come to be legal in Canada in the first place? Was that a change? When did it occur, and why? What arguments were made, and by whom? I’m asking because I’m hoping there’s someone here with more knowledge of Canadian law than I could find by mere Googling.

    In light of the fact that prostitution was, technically, legal in Canada, I really don’t get the reaction of the federal government here.

  • http://www.toddstadler.com/ tODD

    Ah, well, I routinely get mocked for going to Wikipedia, but this article does seem helpful in answering my questions, particularly this line: “the act of exchanging sex for money has never been illegal in Canada.” Suddenly, this new Canadian development doesn’t seem to apply to the US quite as easily.

  • http://www.toddstadler.com/ tODD

    Ah, well, I routinely get mocked for going to Wikipedia, but this article does seem helpful in answering my questions, particularly this line: “the act of exchanging sex for money has never been illegal in Canada.” Suddenly, this new Canadian development doesn’t seem to apply to the US quite as easily.

  • WebMonk

    That certainly gives more light to the situation, thanks tODD.

    I would tend to agree with the challengers that if something (A) is legal, it is nonsense to make other perfectly legal acts (B) suddenly illegal when done in conjunction with A if it doesn’t endanger someone. If prostitution is legal, making being an accountant for a prostitute illegal is nonsense.

    Common sense has a sketchy relationship with legalities though, so I don’t know how the legal reasoning may have gone.

  • WebMonk

    That certainly gives more light to the situation, thanks tODD.

    I would tend to agree with the challengers that if something (A) is legal, it is nonsense to make other perfectly legal acts (B) suddenly illegal when done in conjunction with A if it doesn’t endanger someone. If prostitution is legal, making being an accountant for a prostitute illegal is nonsense.

    Common sense has a sketchy relationship with legalities though, so I don’t know how the legal reasoning may have gone.

  • http://www.thirduse.com fws

    webmonk @3

    “The prostitutes (or whatever term is used) in those countries are MUCH better off than prostitutes in countries where it is illegal.

    Don’t get me wrong – I’m not saying that it is sufficient reason to legalize prostitution –”

    Why not? Sounds good to me.

  • http://www.thirduse.com fws

    webmonk @3

    “The prostitutes (or whatever term is used) in those countries are MUCH better off than prostitutes in countries where it is illegal.

    Don’t get me wrong – I’m not saying that it is sufficient reason to legalize prostitution –”

    Why not? Sounds good to me.

  • WebMonk

    Because there are other factors which may need to be taken into account – VD spread, crime statistics, economic impacts, societal impacts, unintended consequences, moral stances of the state, etc.

    My point was that the well-being of the sex trade workers isn’t the only factor. If legalizing prostitution suddenly caused a 2000% increase in divorce in a society (it doesn’t), that would be a very good reason to consider keeping prostitution illegal.

    Frankly, legalizing brothels and prostitution would probably have a positive impact on quite a number of things, but basing the entire change solely on the effects on the prostitutes is a bad idea.

  • WebMonk

    Because there are other factors which may need to be taken into account – VD spread, crime statistics, economic impacts, societal impacts, unintended consequences, moral stances of the state, etc.

    My point was that the well-being of the sex trade workers isn’t the only factor. If legalizing prostitution suddenly caused a 2000% increase in divorce in a society (it doesn’t), that would be a very good reason to consider keeping prostitution illegal.

    Frankly, legalizing brothels and prostitution would probably have a positive impact on quite a number of things, but basing the entire change solely on the effects on the prostitutes is a bad idea.

  • Heidi

    I am stuck by two parallels with abortion:
    1. A favorite argument for legalizing abortion was that it would save the lives of women, saving them from the dangers of “back alley abortions.” Here we want to protect prostitutes by legalizing their activity.
    2. Bror Erikson pointed out that laws don’t do much to help prostitutes, and we (Christians, I’m guessing?) should focus more on helping them escape prostitution. Likewise, if you want to prevent abortion, the most effective way in our current political climate (and probably any time) is to help unwed mothers. It’s also more compassionate, and more personal. And the personal approach (to both abortion and prostitution) is more useful for spreading the gospel, which is ultimately what prostitutes and unwed mothers and the rest of us need anyway, right?

  • Heidi

    I am stuck by two parallels with abortion:
    1. A favorite argument for legalizing abortion was that it would save the lives of women, saving them from the dangers of “back alley abortions.” Here we want to protect prostitutes by legalizing their activity.
    2. Bror Erikson pointed out that laws don’t do much to help prostitutes, and we (Christians, I’m guessing?) should focus more on helping them escape prostitution. Likewise, if you want to prevent abortion, the most effective way in our current political climate (and probably any time) is to help unwed mothers. It’s also more compassionate, and more personal. And the personal approach (to both abortion and prostitution) is more useful for spreading the gospel, which is ultimately what prostitutes and unwed mothers and the rest of us need anyway, right?


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