Prostitution in Canada:
The Invisible Menace or the Menace of Invisibility?

Directed research by:
Sylvia Davis
with professor:
Martha Shaffer
(c) 1994

http://www.walnet.org/

Introduction

Throughout time prostitution has aroused a wide range of emotions from the communities in which it exists. Some are morally outraged by its presence, others merely curious. Some view it as a threat, others as a necessary evil. However, at least in recorded history, no society has completely accepted it as a valid and integral part of the community. Prostitution is something to be abhorred or tolerated but never condoned. It is a "nuisance," a "problem," but above all it is an embarrassment. For the religiously inclined it reminds us that we are far from the moral standards set for us by most scriptures. For government officials it is considered a sign of their mismanagement since prostitution is taken to symbolize a society in decline. For police officials it is a blotch on their record, an indication of incompetency, because it is something they are unable to control much less eradicate. For many feminists it signals the continued entrenchment of the patriarchy, the ultimate exploitation of women, a significant indication of how far we are from achieving full gender equality. Prostitution is the poor relative of whom we are slightly ashamed, the black sheep of the family who is a reproach to our cultural image of ourselves. And so like most families in this situation we would keep prostitution out of sight, if not out of mind, as much as possible.

As a result, while societies have varied in their approaches on how best to handle the "problem" of prostitution -- should it be criminalized, decriminalized, regulated, de-regulated or a combination of the above -- the main concern has been to keep it invisible. We wish it invisible whether for the short term, as we work to eradicate it, or in the long term, if we have decided to tolerate it. We wish prostitutes to be invisible whether we condemn them for their acts or seek to "reform" them.

It is the contention of this paper that regardless of ones views on prostitution, its appropriateness or lack there of, in modern society, the insistence on invisibility as the overriding factor in any policy decision dooms that policy to failure, regardless of the time and money spent on its creation or administration. Whether we seek to eliminate prostitution or improve its working conditions we must first come to terms with the fact that neither can be accomplished unless we allow the prostitute to become a visible and integrated part of the community.

It is invisibility which has exacerbated the negative aspects of prostitution both for the community and the prostitutes themselves. Invisibility means we don't need to look closely at prostitution or our response to it because we have the illusion that it is only a marginal part of our society. Invisibility means that this is unlikely to change since the individuals who are in the best position to explain why things aren't working or what in fact the problem really is -- e.g. the prostitutes themselves -- have no way of being heard, since being invisible also means being inaudible.

As a result, policies which are ineffective and inappropriate are applied and reapplied to little or no positive gain. On the contrary such mismanagement can actually be costing us far more than we realize. The cost is financial in that tax dollars are wasted, but it goes beyond dollars and cents. Invisibility has allowed us to create a standard of rights and freedoms for prostitutes which are separate but not equal to those guaranteed to the rest of the population. While this results in poor if not dangerous working conditions for prostitutes, it also has severe repercussions for the qualitative standards of the community as a whole. Rights lose their meaning and effectiveness when they lose their objectivity. A society which protects only a select portion of its people is soon unable to protect anyone.

There are currently three recognized legal regimes regarding prostitution: Criminalization, Regulation and Abolition. [1] While all three regimes differ in the extent to which the criminal law is considered appropriate vis a vis prostitution, they all share two main policy considerations:

1. the protection of prostitutes from exploitation by third
   parties, and
2. the protection of the public from adverse effects of/exposure to prostitution. [2]

This paper will examine each of these regimes in turn and will show how each fails to achieve the protection of either public or prostitutes because of the perceived need to segregate prostitutes from the rest of the community (in other words the perceived need to make prostitution invisible). Specifically, the focus of this paper will be on Canada, how its approach to prostitution is defective, what alternative reforms are available, which of these would be most effective and how they might best be implemented. [3]

I. Canada and Criminalization

Under Criminalization all forms of prostitution are criminalized. This approach is motivated by the twin beliefs that prostitution has no intrinsic social value and can be completely eradicated through vigorous and uncompromising enforcement of the criminal law. [4] Canada practises a hybrid form of criminalization in that although prostitution itself is theoretically legal in Canada, practising it is not. The Criminal Code prohibits all forms of public communication for the purpose of prostitution (s. 213 [5] ), and most forms of indoor prostitution as well: owning, running, transporting or occupying bawdy house (ss. 210 [6] and 211 [7] ), procuring or living on the avails of prostitution (s. 212 [8] ).

While the trend in other western countries has been to move away from criminal sanctions for prostitution, Canada has done the reverse, legislating a tougher anti-communication law (s. 213) in 1986. More recently, various government committees and task forces have called for even tougher laws as well as more vigorous enforcement of the current legislation. In 1990 the Standing Committee on Justice recommended yet more strengthening of the laws including fingerprinting and photographing prostitutes [9] and the removal of drivers licenses for those charged with communication for the purpose of prostitution. [10]

The most recent exploration of prostitution by the government was the Working Group of Attorneys General Officials on Gender Equality in the Canadian Justice System, chaired by Bertha Wilson. [11] In general the background papers submitted avoided recommending either repealing or strengthening the laws, choosing instead to focus on enforcement. Equal application of the communication law (s. 213) was cited as a concern, because prostitutes had both a higher arrest and sentencing rates than their customers (s. 213 is meant to apply equally to both prostitutes and their clients). [12] As well, programs were recommended to educate police and court officials on the myths and stereotypes surrounding prostitution and the resulting barriers to access to the justice system. It was hoped this would both improve prostitutes' access to the justice system and help ameliorate the prevalence of violence against prostitutes perpetrated by police. [13]

Both the recommendations of the Standing Committee on Justice, and the Wilson Task Force, were accompanied by vague suggestions regarding job retraining and counselling programs for prostitutes [14] (in recognition of the fact that prostitution is often a choice made out of economic necessity). [15] Yet the common belief of both groups seems to be that prostitution must be "solved" through criminal sanctions rather than economic measures. However, a close look at criminalization shows it to be by its very nature self-defeating. Unfortunately the very elements which make it self-defeating also cause it to be self perpetuating, thereby precluding all chance of meaningful reform.

I: 1. The Failure of Criminalization

I: 1a. How Criminalization Fails to Protect Prostitutes from Harm

1. Section 213 (communicating for the purpose of prostitution) while meant to focus solely on "protecting" the public from the "negative" effects of prostitution has the unintended effect of endangering prostitutes, thereby defeating the goals of ss. 210-212.

John Lowman has divided prostitution laws into two segments: those which are meant to protect prostitutes from third parties (e.g. those laws dealing with procuring, living on the avails of prostitution (s. 212), running, owning or transporting someone to a bawdy house, ss. 210-212 of the Criminal Code) and those laws meant to protect the public from the "nuisance" effects of prostitution (e.g. the law against public solicitation, s. 213 of the Criminal Code). [16] Unfortunately, however neatly we might categorize the legislation, it does not change the fact that the criminal provisions do not act in isolation from each other. Section 213, while meant to focus solely on "protecting" the public has the unintended affect of endangering prostitutes, thereby defeating the goals of ss. 210-212.

In general, s. 213 has tended to increase the vulnerability of prostitutes. First of all, prostitutes' working conditions are worsened because fear of arrest places the emphasis on avoiding detection rather than on health and safety. This is particularly true regarding s. 213 which gives a very broad definition of both communicating [17] and public place [18]. This makes it extremely easy to be charged and convicted of communicating for the purpose of prostitution. The National Association of Women and the Law NAWL has reported that s. 213 victimizes women by increasing the health and safety risks associated with street prostitution because it forces prostitutes to work in dark areas where they are more vulnerable to attack. [19] As well, because of the need to avoid detection street prostitutes have little time to consider their options when dealing with a customer. They must act quickly and often this means accepting a date before they have had time to "feel him out," again increasing the risk of assault. [20] This also means prostitutes have less control over the date itself, often being put into the position of having sexual interaction without a condom. [21] The prostitute therefore is faced with the potential double whammy of a physical assault and/or a viral one.

The consequences of criminalizing prostitution are not limited to physical harm however. Because s. 213 is so easy to enforce it is almost impossible to practice street prostitution without getting a criminal record. [22] Since a criminal record makes it extremely difficult to obtain any form of legal employment, it ensures that a prostitute will have few economic options other than prostitution. Given these unassailable facts, it seems odd that the Standing Committee and the Wilson Task Force would even bother to recommend counselling and job training programs for prostitutes since any skills the prostitute might learn will be useless until they can clear their record. [23]

A criminal record has psychological consequences as well. Studies have shown that the entire arrest process is in itself humiliating and degrading. Prostitutes queried on the subject have said that being arrested and their subsequent treatment at the hands of the law did far more damage to their self esteem than did the actual act of prostitution. [24] The message given the prostitute by society and reenforced by criminalization is that they are utterly worthless. While studies in both Canada and the United States have found that (contrary to popular belief) the majority of prostitutes do not use drugs, [25] there is the concern that the economic and psychological impact of an arrest record could increase alcohol or drug dependency which already exists. [26] This in turn would further prohibit a prostitute from leaving the life since she/he will require greater sums of money to support their drug habit. [27]

Contrary to the beliefs of the Wilson Task Force, none of these problems would be addressed by a greater arrest and conviction rate for customers. [28] If anything, prostitutes would have a harder time since they would be driven further underground with their clientele. As s. 213 has shown, where a prostitute's chief concern must be to avoid arrest (and this includes arrests of either prostitutes or their clients) their control over their working conditions and as a result their own safety will be forfeit. Such formal equality will be cold comfort to the sex workers who have been fighting for the kind of societal acceptance their clients have enjoyed for years. As one activist put it equal applications of the laws has equalised women down by taking away some of the rights men had which women were fighting to get: instead of prostitute women not being arrested for soliciting men, men are being arrested for soliciting women. [29]

2. Sections 210-212, although intended to protect prostitutes from exploitation actually guarantee that exploitation will take place.

If s. 213 has been harmful, ss. 210 (running, owning or inhabiting a bawdy house), 211 (transporting a person to a bawdy house) & 212 (procuring for the purposes of prostitution and living on the avails of prostitution) have been no less so. This at first seems incomprehensible, since s. 212 in particular was created solely to protect prostitutes from harm. [30] However ss. 210-212 do not differentiate between exploitive and non exploitive situations for prostitutes. Essentially it is the involvement of the prostitute which activates the criminal sanction. For instance, as the laws are currently applied, prostitutes seeking to avoid the attentions of the police by moving indoors are subject to the bawdy house laws. [31] This includes women working by themselves out of their residences [32], or from rented hotel rooms. [33] In fact the majority of charges laid re s. 210 are against independent "cottage" industries. [34] As well, should an individual be convicted of using rented accommodations as a bawdy house s. 210(3) commands the court to send notice of this to their landlord. In the event that the individual is charged and convicted a second time of the same offence, under s. 210(4), the landlord can also be charged and convicted of owning a bawdy house. This guarantees that convicted prostitutes will be thrown out of their homes at first notice.

The prostitute is also effectively isolated from other prostitutes in that two prostitutes operating in tandem run the risk of being charged with the more serious felony crimes of operating a brothel or living on the avails. [35] The Criminal law system isolates prostitutes from their family, both by exacerbating the stigma of prostitution with a criminal record, and because contact with the prostitute can lead to Criminal Charges -- living with a prostitute can result in "living on the avails" charges [36], and a history of prostitution can result in the loss of child custody. [37]

Studies in the United States, where "pimps" are considered by officials and prostitutes alike to be a significant problem, show that the combination of criminal laws against both the prostitute and those who associate with her have increased, not decreased the likelihood that the only relationships she will be able to have are with those who see her as an easy source of money. [38] The legal and social stigma attached to any man in a relationship with a prostitute, police harassment and the potential fines and jail term, effectively precludes a relationship with anyone except the archetypal pimp. The law acts as a self-fulfilling prophecy. While the stereotypical pimp is a rarity in Canada [39], the government's insistence on following the U.S. model may help to change this fact.

I: 1b. How Criminalization Fails to Protect
the Public From the "Effects" of Prostitution

1. Section 213 cannot protect the public from the supposed negative side effects of prostitution (disease, crime and urban blight) because prostitution is not in fact the cause.

s. 213 goes beyond general nuisance laws in that it allows a prostitute to be charged whether or not they are creating a public disturbance. [40] The judicial interpretation of s. 213 has also made it very easy to enforce. An officer may make an arrest based solely on an exchange between the officer and the prostitute targeted. While most undercover police will try to get the prostitute to be the one to mention price and "menu" first, charges have been laid when the prostitute has merely nodded in answer to questions regarding services and price. The emphasis of the new law has moved from evidence of public annoyance to evidence of intent to communicate for the purposes of prostitution. [41] Presumably then, the idea is that the very existence of prostitution, regardless of its public manifestation, is a criminal offence.

Why is it so crucial to keep prostitutes away from the public, if they are not causing a noticeable disturbance? It is believed prostitutes, by their presence alone, bring crime, drugs and urban decay in their wake. This is why residents' groups with any clout insist on prostitutes being removed from their area. [42] However, recent studies have found no direct link between prostitution and any of these concerns. For instance a 1977 study by Barbara Millman showed that the connection between urban decay, crime and prostitution resulted because prostitution was only allowed to exist in areas the city had already written off. [43] By way of proof, Millman noted the effects of regulation in Boston, which quickly transformed an already borderline area into the "Combat Zone". Millman found that the "anything goes" attitude of the police allowed crime to get out of hand. [44] Another study of the "Combat Zone" compared Boston to Holland where by contrast, when small brothels are integrated into already healthy neighbourhoods, such a decline does not happen. [45]

A more recent concern is that prostitutes are prime carriers of AIDS. However again studies have shown that prostitutes are actually lower risk HIV carriers than their customers. [46] In general, studies tend to point to needle use, not prostitution as the main source of AIDS transmission. [47] This makes sense when one considers earlier studies on the general transmission of venereal disease have shown prostitutes to be very low risk [48], bearing out the claims of prostitutes' rights groups that sex workers (unlike their clients) are very conscientious regarding condom use and other safety precautions. [49] Given all this, s. 213 would seem to have little practical purpose other than to harass prostitutes.

2. The expense of enforcing prostitution laws drains resources for the prevention of other more serious crimes.

Not only is criminalization an ineffectual method of "protecting" the public from the dangers of prostitution, it also inhibits the ability of law enforcement officials generally to protect the public from other, arguably more serious forms of crime. For example, Metro Toronto taxpayers spend approximately 40 cents of every tax dollar on policing. Of the various units in the Metro Toronto Police force, the second most expensive is the Morality Squad, which deals with drug and prostitution offenses. There are 96 officers in the unit, and in 1993, its portion of the budget came to $7.9 million, with $1.8 million, or 23% of the total going to pay the salaries of those in the unit assigned to prostitution. [50] By comparison, the Metro sexual assault squad, which is made up of only 15 officers, receives only $1.4 million. This, in spite of the fact that one half of all Canadian women have experienced at least one incident of violence since the age of 16. [51] In 1992, There were 11,550 known incidents of sexual assault in Ontario, of these 5, 875 charges were laid [52], 2,285 of them in Toronto. [53]

There are as well court or incarceration costs. In 1993, 2,739 prostitution charges were laid in Toronto (from a total of 4013 in Ontario). [54] All of these would have required some court time. In the case of charges withdrawn, the time would be minimal. However even where there was an immediate guilty plea, there could be as many as three separate hearings. [55] The hourly cost of operating court sessions in the provincial division for the current fiscal year is $210.50. [56]

Should a conviction result in a jail sentence, there are potential incarceration costs. In 1993, 372 of those charged received jail sentences. [57] The average cost for keeping an adult inmate in a provincial detention centre is $116.03 per day. Individuals are kept in detention centres while awaiting a bail hearing, or if bail has been refused while awaiting trial. If convicted, individuals will also be put in detention centres if their sentence is for less than a month. Should the jail term be longer, they are placed in a correctional facility; average cost provincially: $134.90 per day. [58]

This does not include the costs of police officers testifying. Consider the following scenario:

In a Toronto Courtroom, one of 12 women busted in the raid last January had her trial remanded for a second time -- this time until June. Present were at least three plainclothes officers who took part in the arrest.

In all ten people, most of them officers, will eventually testify at the trial, which the Crown says will take at least a full day to complete. [59]

Officers required to testify when off duty get a minimum of three hours overtime (time and a half). If they are required to testify during their annual leave they are entitled to a minimum of 16 hours extra leave. Because of recent budget cuts, the official policy now is to schedule court appearances so that officers are on duty (and therefore paid at the regular rate). This however, has resulted in entire shifts being detailed for court, leaving no one for patrol duty. It has also cut back on the amount of available backups. [60] Again, this does not count the time needed by the officer to take the prostitute in, process him or her and fill out the necessary paperwork. This is time which will not be spent out on patrol. Every prostitute arrested and processed through the system means there will be one less police officer available for your protection should you need them.

It was not possible to come up with a concrete total for costs to the system due to enforcement of the prostitution laws. Neither police, courts nor detention centres separate totals regarding prostitution as opposed to other offenses. In particular, much of the police costs are hidden in general budget requirements for the major crimes units of the various divisions. One important step on the road to a more efficient use of tax dollars would be to insist separate calculations be made and tallied, so that the tax payer may decide if the cost is really worth it. In the United States, where such calculations have been made, the results have been startling. For instance a 1987 study of the municipal costs to 16 major American cities found that a total of $120 million dollars were spent in 1985 to combat prostitution. To put this in perspective: with the $2.3 million New York City alone spent in 1985 controlling prostitution, the city could have purchased the entire 1982 police departments of Toledo, Tampa, Rochester or St. Paul, or the fire departments of Atlanta, Honolulu, Indianapolis, Miami, or St. Louis. [61]

Lest this seem out of whack with Canadian reality, Professor John Lowman reported that the Vancouver police mounted a $1 million operation to close down a sex clubs in 1975. [62] This did not count court costs, which were high since the case eventually went to the Appeal Court (the defendants -- the former club owners -- won on appeal). [63] The court costs, plus the investigation of a 2nd club, which burned down before the police could act, brought the entire bill to $2 million. [64] What was the end result of the operation?

3. The prostitution laws are ultimately harmful to both prostitutes and public because they reinforce and encourage negative double standards regarding what is or is not acceptable female behaviour.

Acceptable female sexual behaviour is much more narrowly defined than male sexual behaviour. Although we pride ourselves on being more sexually enlightened than previous generations, our societal bias against sexually promiscuous women as opposed to our tolerance of sexually promiscuous men is still apparent in that criminal sanctions officially applying to both the male and female participants in prostitution, are in actual practice applied mainly against women. [65] This includes laws meant to protect prostitutes from exploitation as well as those directed against them. [66]

This gender bias does more than result in an inequality of criminal charges however. Prostitutes are punished for their deviant behaviour on an unofficial level as well, by a higher rate of violence directed towards them by both the general public and the police. "Violence," in this case includes "low level" violence such as the day-to-day verbal abuse street prostitutes receive, as well as the more serious violence of theft, assault [67] or murder. The mortality rate in Canada for girls and women in prostitution is 40 times the national average. [68] Similar statistics have been reported in the United States. [69]

This abuse is both covertly and overtly condoned by the police. "Maggie's, the Toronto Prostitutes' Community Service Project" has reported numerous incidents of police either physically abusing or condoning the abuse of prostitutes:

A street prostitute was beaten, choked with a rope and left unconscious in an alley. She had severe bruising on her neck and face the next day when she approached two female police officers to report the incident. They asked her what she expected in her line of work and refused to take a report.

A homeless street prostitute was beaten and raped so badly that she ended up in hospital for several days and several months later still required surgery. The hospital called the police. the officer who responded to the call had arrested the woman in the past and during the arrest had been violent toward her. He told her, in front of the hospital staff, that she had it coming and left.

A well known street prostitute was beaten and suffered a serious head injury. She had to walk to the hospital in the middle of the night with blood pouring from her wound. She tried to hail a passing police car but they would not stop for her.

A "straight" woman called the police to report an assault in progress. It took twenty minutes for an officer to arrive. When she asked why, she was told that had it been another neighbourhood the response would have been within five minutes but because of where she was calling from it was assumed the woman being assaulted was a prostitute. [70]

This attitude has two effects:

1. violence is allowed to continue until someone "valuable" is killed [71] and
2. women's safety depends not on their general rights under the law, but whether they are considered a good girl or not. [72]

Thus being considered a "good" girl is crucial in protecting women from attack and in ensuring action is taken if they are attacked. [73] Attention is therefore focused on defining whether a woman is worthy of protection rather than stopping the violence the minute it starts. With this attitude it is no wonder that violence against women continues to be a problem in society. It should also be noted that although the majority of prostitutes in Canada are women [74], male prostitutes also suffer from violence by customers, police and third parties and receive little protection either from the police or in the courts. [75] Thus violence against prostitutes endangers not just women, but society in general.

It could be argued that violence towards prostitutes is neither encouraged nor condoned by the Criminal Code, and that if such behaviour is allowed, it is the result of inappropriate enforcement of the legislation, not a result of the legislation itself. However, the Criminal Code, by its existence, sanctions the belief that prostitutes are outside the normal scope of society. The legal nicety that prostitution is legal, even if its practice is not, does not bear much weight with the public, or the police. The laws still cause prostitutes to be viewed as pariahs:

because there are special laws, this seems to result in prostitutes being categorized as different. ... less worthy of protection by the police and a general attitude that they are second-class citizens. The Police and the public act towards prostitutes in ways that they would not with other women or men. [76]

As one prostitute bluntly put it: "It is like we are strange nocturnal animals that crawl out of the sewers at nights." [77] Therefore, so long as there are any laws which single out prostitutes for special treatment, these laws will strengthen the general prejudice against prostitution. So long as prejudice against prostitutes exists, the laws will be misused to aid and abet that prejudice, to allow prostitutes to be abused, beaten and murdered. So long as this is allowed to continue, all of us are in jeopardy.

I: 2. Why Criminalization Remains Popular

If criminalization is so ineffective, not to say harmful, to both prostitutes and public, why is there a continuous clamour for ever tougher criminal sanctions? The answer is simple: by acting simultaneously with s. 213 [78], sections 210-212 [79] reduce the possibility of prostitution becoming socially "invisible," (e.g. prostitutes practising where they will not come into contact with the politically powerful) unless the law is enforced in a discretionary manner (e.g. allowing prostitutes to practice in one part of town so that they will not be seen in another). However, this leads to the erroneous belief tougher penalties are needed to enforce the law. As a result, the very conditions which ensure criminalization's ineffectiveness prolong its existence, by creating a continuous call for stiffer criminal sanctions.

While s. 213 is meant to deter street prostitution, its effectiveness is neutralized by the fact that prostitutes have nowhere else to go because of ss. 210, 211 and 212. As already mentioned, prostitutes as well as their landlords, customers and bosses may be charged under ss. 210-212. This means that indoor prostitution, even independent escort workers must carry on their business in a clandestine manner. [80] This invites both exploitation and violence.

While many indoor workers are able to earn a more substantial living than street prostitutes as well as avoiding much of the stigma (mainly because they are in a better position to hide their profession) they also end up paying much of their earnings to escort services, clubs, bars, hotel managers and owners. The "date" occurs on the clients turf (either home or hotel) in order to avoid charges under the bawdy house laws, forcing the prostitute to put themselves in a potentially dangerous situation. Because arrangements are made over the phone, the prostitute is walking into a blind situation, from which she may or may not return. Again, working independently is made difficult by the fact that they have no effective, legal recourse in the event of an assault or even breach of contract. Indeed, the laws meant to preclude exploitation by third parties actually increases its likelihood, since a prostitute cannot complain without risking a charge herself. [81] Even if a charge is not laid against the prostitute, he or she has now made herself known to the police, something he or she may have been able to avoid as an indoor worker. As a result, many prostitutes have chosen outdoor sex work (street solicitation) over indoor, because it is perceived as safer, even though arrests are more likely. [82]

In summary, the laws as they now stand make it difficult for prostitutes to leave the streets, much less prostitution. Therefore, the most the public can expect from criminalization is for it to operate as a control on where street prostitution is practised. However, in order to keep prostitution out of certain areas it must be allowed in others. This is born out by the fact that s. 213 was only successful in changing the location of street prostitution where it was used in a discretionary fashion. A study in 1989 of the effects of s. 213 in all major Canadian cities showed little or no change in the demographics of street prostitution. Where lower visibility was achieved it was through a calculated application of the law. Specifically, Calgary used the legislation to confine prostitution to publicly "acceptable" areas, by allowing prostitutes to work in certain parts of town while arresting them in others. [83]

This does not guarantee the public complete segregation from prostitution, however. First of all, the vast majority of prostitutes are "indoor workers" and most of the public comes in contact with them on a daily basis without knowing it, by either living or working near clandestine indoor prostitution of some form or other. [84] Secondly, even in the case of street prostitution, which attracts public attention, criminalization does not guarantee segregation for the simple reason police containment of prostitution is defined by public demand. Police will allow prostitution to exist in one area to keep it out of another. Police find unofficial regulation very useful as it allows them to contain prostitution in publicly acceptable areas (e.g. neighbourhoods too poor to command any political clout). [85] It also enables them to use the criminal law as a bargaining chip with prostitutes, withholding arrests in exchange for information. [86]

However the acceptability of an area will gradually change over time, in particular when business or up scale residents become interested in it. When this happens prostitutes who were "invisible" become unacceptably "visible" and enforcement once again becomes a "problem". [87] Police will then respond to public demands (if they are sufficiently vocal) and attempt to move prostitution somewhere else, however the "damage" will have already been done, in that the public has been contaminated by exposure to prostitution. It may also take quite some time for new boundaries to be created which are satisfactory to both prostitutes and residents.

As well, movement of this sort can create more problems than it solves. Heightened press coverage raised enough public clamour to cause the closure of two notorious sex clubs in Vancouver in the 1970s, after they had been operating, more or less openly, for years. [88] As a result, the prostitutes formerly working the clubs were displaced onto the streets. The areas where prostitution was unofficially tolerated were not able to accommodate the new influx of sex workers (there were estimated to be 100 prostitutes working the two clubs) so the new street prostitutes spilled into more upscale residential areas. The residents and local businesses of the new prostitution tracks were of course unhappy at this development and lobbied police for action. [89] To the residents, the sudden appearance of prostitutes in their area was perceived as evidence that the laws are not "tough" enough or broad enough to enable the police to do their jobs, not realizing that it was tougher enforcement which had upset the status quo and caused the redistribution of prostitution into their area.

Police and municipal authorities, reacting to pressure from citizen groups then pressure higher levels of government to enact laws giving police wider latitude in enforcement. [90] The government reacting to both public pressure and the advice of those it views as an extension of itself (police and local politicians) moves to enact the laws which will guarantee a quick fix to the problem. Thus the main aim is removal, so that respectable citizens are not offended by the sight of prostitution and so that police and public officials may appear to have moved quickly to satisfy their constituency. The new laws (or new effort to enforce old laws) are enforced (or manipulated) with a calculated vengeance by police until voter and press interest wanes or until budget and man power constraints cause the police to shift their focus elsewhere.

[P]ublic clamour for the alteration of prostitution laws or the demand for their better enforcement would come, if it comes at all, when prostitution becomes such a phenomenon that it begins to affect the lives of the ordinary citizens. As long as prostitution remains a private business between the prostitute and her client, out of sight of those who are not her clients, it does not appear likely to rouse much public enthusiasm. The police in many countries appear to be aware of this and to fashioning their activity using the criterion of public tolerance as a measure of control. [91]

A perfect example of this phenomenon is the Parkdale community, an older neighbourhood in Toronto, long considered the dumping ground for the city's untouchables, including a substantial number of street prostitutes. However a Yuppie invasion of Parkdale in the 80s brought forth the startling fact that Toronto had a "problem" enforcing its prostitution laws (ignoring the fact that police had tacitly allowed street prostitution in Parkdale for years). Since then there has been an ongoing war between the new middle class homeowners and cops on the one hand, and the neighbourhood's indigenous population on the other. [92] It is residents' groups such as Parkdale's RASP (Residents Against Street Prostitution) which have lobbied for tougher sanctions like those recommended by the Standing Committee and the Wilson Task Force. [93]

All that the current system can guarantee is that this vicious cycle will continue if nothing is changed. With no clear place where they can practice which is both safe and accessible to clients, prostitutes will continue to push the envelope of societal tolerance as they try to survive. Prostitutes (like the rest of us) will not willingly seek the most unsavoury and dangerous areas in which to work. Instead, they will try to find places that are safe and habitable. In the case of street prostitution this means finding a neighbourhood that is well lit and not too run down. However because of the permanent legal twilight in which they exist, prostitutes have no way of knowing when and if they have crossed the line from "invisible" to visible until after public furore has begun. Because of its clandestine nature unofficial regulation is very uncertain, since it is almost totally at the whim of the enforcer. Prostitutes who are allowed to operate relatively unmolested one minute can become subject to arrest the next because of a change in public opinion or a need for a higher arrest quota. Again, because of the hidden nature of the unofficial policy, it makes law reform difficult, since the real reasons for the enforcement of the law (or lack of enforcement) are kept secret.

I: 3. Conclusions Regarding Criminalization

In Conclusion, it is clear criminalization doesn't work. It entrenches rather than reduces prostitution, and is detrimental to the control of violence in society in that it takes money and officers away from controlling serious crime and actually encourages the belief that violence is acceptable in certain circumstances. Furthermore rather than controlling prostitution's whereabouts, criminalization creates a situation where perennial confrontation between the politically influential and prostitutes is inevitable. The resulting calls for tougher laws and stricter enforcement, create a vicious merry-go-round of self-fulfilling inefficiency and harm.

All of this can be traced to the overriding emphasis on invisibility. The public places a high premium on prostitutes remaining invisible to the point that all forms of prostitution are forced underground. In this invisible world, violence and exploitation continue at outrageous levels, which again remain invisible to the public. The police practice an invisible policy of enforcement, manipulating the law to meet the perceived needs of the public. The public, unaware of the invisible factors motivating enforcement, calls for reforms to the laws which exacerbate rather than solve the problem. Furthermore, costs of enforcement remain invisible, hidden within the overall budgets of police, courts and correction facilities. This would seem to indicate that some form of "visible" or officially condoned prostitution is necessary to bring some efficiency, not to say honesty back to the system. Yet most people balk at the idea of wholesale removal of prostitution from the Criminal Code. What then is the alternative? There are currently two regimes practised in the world which allow for a partial decriminalization of prostitution: regulation and abolitionism. However it is the contention of this paper that even these systems fail because of the overriding importance placed on prostitution invisibility.

II. Regulation (Victoria, Australia)

II: 1. Regulation and the Fraser Report

Regulation (sometimes known as legalization) permits prostitution in certain forms, usually through zoning (confinement to certain areas) or licensing (licensing a limited number of prostitutes to work in certain areas of a city). Regulation views prostitution as a necessary evil if not a social necessity. The aim is not eradication so much as control -- the goal being to keep prostitution limited to areas of town where it will not offend the rest of the citizenry.

Regulation is the preferred approach of liberal minded officials who are willing to try something other than criminalization, but still wish to maintain control over prostitution. Regulation is occasionally contemplated in Canada by local politicians, [94] however, the only time it has been officially put forward however, was through the Fraser report [95], the first government study of adult prostitution in Canada. Put out in 1986, it suggested a combination of tough criminal sanctions against street prostitution while endorsing a licensing system for brothels.

The Fraser Committee realized that tougher street laws by themselves would have little effect other than to shift prostitution from one area to another, depending on the diligence of enforcement. However it was obvious from the oral and written submissions made to the Committee that the sector of the public most vocal on the matter (residence groups, police, municipal officials) would accept nothing less than complete criminalization of street prostitution. [96] The Fraser Committee did recommend that tough public solicitation be prohibited but then sought to create a neutral sphere for prostitutes "indoors" by allowing an exception to the bawdy house proscription for up to two prostitutes practising out of a residence. However, this they felt might run into resistance from provinces and municipalities, many of which do not zone for "out of house" industries. They therefore made a second exception to the bawdy house laws which would allow for licensing of indoor brothels, thus introducing regulation into the scheme [97]

The Fraser Committee recommendations were not acted upon by the federal government. Had they been, it is open to question as to whether they would have improved things for either prostitutes or the public. Regulation has not proved particularly successful in the countries where it is practised, invariably, prostitutes' civil rights are adversely effected and under ground prostitution continues to exist in tandem with legal prostitution thereby defeating the entire purpose of the regulatory scheme. [98] However, it could be argued that this does not automatically mean it would have failed in the Canadian context. It is possible to get an idea of how the law might have fared by looking at the experience of Victoria, Australia.

II: 2. Regulation and Victoria, Australia

The situation in Victoria is of particular interest to Canada, since in many ways it parallels the Canadian situation. Up to 1984, prostitution in Victoria was governed by a series of laws which combined to criminalize all aspects of prostitution. Like other countries with total criminalization this did not eradicate prostitution or even effectively control it. The current labour government then in power was for the most part sympathetic to total decriminalization, however the most vocal and well organized of its constituents (local resident groups) called for tougher criminalization. [99]

The government sought to compromise by creating a form of regulation which would both protect prostitutes from exploitation and protect residents from the "nuisances" exposure to prostitution create. The government continued to criminalize all forms of prostitution except for prostitution through escort services or licensed brothels (zoning and licensing requirements for brothels to be determined by the proper municipal authorities). [100]

The Victoria experiment has failed for two reasons. First because municipalities have complete control over giving or refusing licenses, the number of legal brothels has been sharply limited as communities seek to limit the existence of prostitution in their areas. [101] This has caused a bidding war to erupt around the small number of permits available, guaranteeing that small and individual operators will be unable to practise legally, because they cannot afford the inflated licensing prices. [102] As a result, there is a shortage of legal employment for the prostitutes in Victoria, forcing many of them to continue to practice illegally. [103]

Secondly, because legal prostitution has been limited to a very few businesses, brothel owners have gained extraordinary power over their staff as the supply of prostitutes, wishing to work legally, greatly exceeds the demand. This has translated into abominable working conditions for prostitutes "fortunate" enough to get legal employment.

Women working in legal brothels have to submit to "house rules" which includes the operators taking 60 percent of all client fees and some have been asked for money up-front for employment in brothels., Owners have increased their profits by imposing a system of fines for various misdemeanours such as lateness, not shaving legs and not having matching nail polish on fingers and toes.

. . .

Brothels in Victoria have become high risk areas for prostitutes who are often exposed to physical violence, AIDS and sexually transmitted diseases. Prostitutes Collective representatives suggested that safe sex is not popular among the clienteles of most brothels, with the result that a prostitute's good intentions regarding safe sex may lapse if she has been waiting all night for a client and someone wants sex without a condom. [104]

. . .

[T]hose in legal brothels complain about the increasing greed of licensed owners. With so many women available for work in legal brothel, owners often crowd shifts with workers in order to give clients a wider choice of prostitutes. For the women, though, this increases competition and decreases earnings. [105]

. . .

[S]ince 1984, the working conditions for female prostitutes have apparently declined. ... Workers are coerced to take clients and perform acts that they find objectionable or are forced to take part in "parades" before potential clients. They are compelled to socialize with clients for no remuneration, are deprived of meal breaks, and are subjected to sexual harassment and abuse by brothel managers. ... These women are also ... required to sign a contract waiving their civil rights and entitlement to Workcare (health and safety protection) [106]

Given these appalling conditions, and the shortage of legal brothels in general, it is not surprising that illegal prostitution is on the increase. For many prostitutes it is a choice of safety over legality, as one sex worker in Melbourne put it, in the legal brothels "the bottom line is the dollar, not the worker's health. ... working illegally will allow me to protect my health and my earnings" [107]

For those choosing not to work in legal brothels there are several alternatives: work legally through an escort service or illegally either on the streets or in an unlicensed brothel (this includes working by yourself out of your own home, if you do not have a permit). None of these are pleasant alternatives. While escort work is relatively legal (the owners and staff of the service can all be charged with "living off the earnings" of a prostitute [108], the prostitute can not) and lucrative, it is considered extremely dangerous work and many prostitutes will not do it. [109] Working the streets is also hazardous [110] and carries with it the risk of arrest. Working in an illegal brothel, while minimizing the danger of sex work, increases the risk of arrest.

However, in all three cases -- street work, escort services and illegal brothel -- because prostitutes have "chosen" to work outside the ambit of acceptable prostitution in Victoria, they are subjected to greater harassment and violence at the hands of police, clients, pimps and "other males." [111] Rather than improve conditions for prostitutes the legislation has caused them to deteriorate. Because it offers legal employment to a small percentage of sex workers, the law exaggerates the criminality of the rest of the prostitute population:

These new legal frameworks create a new class of female deviant: women who continue to work on the street and thereby resist the move to established premises such as brothels and parlours are further marginalized. There would appear to be a contradiction between the espoused concern for workers expressed in certain sections of the legislation and the desire for elevated control thro