My law paper for COMMS Media Law 300, due December 8th, 2014.
There are about 42 million prostitutes worldwide (Lubin). The solicitation of sex for money is considered one of the oldest professions in the world and dates back to Sumerian lists from 2400 B.C. (ProCon Hist. Timeline). One could easily make the argument that prostitution has played a ginormous part in the shaping of the United States’ cultural values, practices, and communication styles.
The United States’ government has outlawed the solicitation of sex through federal and state laws with the exception of 11 counties in Nevada (ProCon US Fed.). However, our neighbors to the north have not only barred the practice of prostitution, but they have also created a law banning all communication in public between prostitutes and Johns regarding sex (Sex Work). Due to the high number of prostitutes, it would be logical for the United States’ government to weigh the idea of adopting such a law. The Communicating Law has created a controversy in Canada and there have been cases fighting to have the ban lifted. As communications professionals, it is extremely important to know where the line between protected speech and illegal speech falls.
It is an interesting thought to consider that the government can ban communication between two consenting adults regarding their sexual plans. While communication about the solicitation of sex does not meet the criteria for clear and present danger or threaten national security, one would think that the citizens should have a right to free speech. Now the question stands: should America adopt the Communicating Law on the same moral crusade to stop prostitution as Canada?
In Canada, there is a Criminal Code that lists several laws that deem activities related to prostitution illegal. Those laws include:
- Section 210: “Everyone who keeps a common bawdy-house is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.” A bawdy-house refers to any place used for the purpose of prostitution; be it a hotel, car, house, or a parking lot. This law goes on to explain that anyone who owns, uses, or enters a bawdy-house is committing a criminal act (Justice).
- Section 211: This law refers to directing others to a bawdy-house. It is illegal to invite, entice, drive, or point out a bawdy-house to someone.
- Section 212: This “procurement law” makes it illegal for anyone to live off the wages of a prostitute. This includes family members over the age of 18, roommates, friends, pimps, or bodyguards. According to Section 212 of the Canadian Criminal Code, a sex worker cannot legally give advice of any kind to other workers; that includes tips on safety or referring Johns.
- Section 213: “The Communicating Law” makes it illegal for prostitutes to communicate in public about sexual favors for money (Sex Work).
In 2008, Bedford vs. Canada confronted the laws above in court. Three sex workers claimed that their rights to liberty, security, and freedom of expression were violated. They argued that the laws promoted violence toward sex workers on multiple grounds. Prostitutes are not allowed to have sexual relations in the same place on a regular basis because that would make the place a bawdy-house, which is illegal. This means that prostitutes cannot accompany their Johns to familiar surroundings, which threatens the safety of the prostitutes. Another reason the women decided to fight the laws was because the ban strips the prostitutes of the ability to safely evaluate the Johns through communicating in public. Once the sex workers are alone with the stranger in an unfamiliar place without any previous communication, the sex workers are extremely vulnerable to danger.
The Canadian government claimed that the danger to prostitutes did not stem from the Criminal Code laws but from the profession itself. The main point was that if prostitutes did not want to be at risk then they should choose a different career path (Sex Work).
The Ontario Superior Court of Justice evaluated the reasons for the laws that deterred sexual solicitation. They figured that the laws stemmed from the desire to protect the community from the social nuisances associated with public discussion of sex for hire. They ruled in favor of the three sex workers and decided that the laws in the Criminal Code pertaining to prostitutes were unfair and dangerous for sex workers (Sex Work).
The Communicating Law has been ruled unjust by the Canadian courts and it will be removed from the Criminal Code, along with the other listed laws pertaining to prostitution at this year’s end. Which raises the question: if Canadians are retiring the Communicating Law because it has been deemed unjust, then why would America consider adopting it?
A New York court introduces another set of cases that bring different solutions to the table regarding prostitutes communicating on the streets. In Queens, Judge Toko Serita has seen numerous women arrested for loitering in connection with prostitution in the Human Trafficking Intervention Court. She decided that the women who are in her court are not criminals, but victims. Her implemented plan includes being friendly to the 40 or more women she encounters every few hours. She also recommends five to six counseling sessions and offers a sealed record for the workers once they’ve completed their sessions. Judge Serita commented that the counseling “is a trigger mechanism to establish contact between individuals and service providers. We know that five sessions is not necessarily going to change some people’s lives, but if they can establish meaningful contact with somebody else that can be used in the future, that’s what we are hoping for” (Robbins).
From analysis of the cases in the New York Human Trafficking Intervention Court, one would see that criminalizing public communication regarding prostitution is a no-win scenario. The idea of creating a safe space for the people affected by prostitution sounds much more reasonable than locking sex workers away in a jail cell.
Looking at New Zealand as a final example, one would see that the 2003 Prostitution Reform Act changed the structure of society. The laws in New Zealand originally mirrored the Canadian Criminal Code but parliament evaluated and discarded the laws over 10 years ago. According to the Canadian Sex Work Law Reform group, “The New Zealand Prostitution Reform Act of 2003 is an excellent example of how criminal law reform can safeguard the human rights of sex workers” (New Zealand). In the section concerning human rights, the act allows sex workers the right to communicate with Johns, as well as the right to decline services that the prostitutes are uncomfortable with (New Zealand).
The verdict is clear to see: America should not adopt the Communicating Law. The law denies rights and safety to prostitutes, which in turn creates an underground world that would damagingly seep in to neighborhoods. If the government constituted the Communicating Law, the country would evolve in to an extremely dangerous environment for sex workers. Denying a person the right to communicate with another individual in the safety of a public environment threatens the well-being of all the parties involved. Instead of criminalizing public communication regarding prostitution, our government should consider the sex workers as victims. It is the duty of the government to create safe places for prostitutes to seek emotional refuge in times of crisis. While the act of sex for hire remains illegal in nearly every area of the United States, the act of talking in public should remain a liberty to everyone, including prostitutes.
The article discusses the dangers of prostitution.
Farley, Melissa. “Sex for Sale: What We Must Not Know in Order To Keep the Business of Sexual Exploitation Running Smoothly.” Yale Journal of Law and Feminism (2006): n. pag. Web. 6 Dec. 2014. <http://www.lexisnexis.com/lnacui2api/results/docview/docview.do?docLinkInd=true&risb=21_T21097359915&format=GNBFI&sort=RELEVANCE&startDocNo=1&resultsUrlKey=29_T21097359919&cisb=22_T21097359918&treeMax=true&treeWidth=0&csi=152480&docNo=4>
This article weighs the pros of legalizing prostitution.
Filipovic, Jill. “Why we need Smarter Prostitution Laws.” Aljazeera America. Aljazeera America, LLC, 24 Jan. 2014. Web. 8 Dec. 2014. <http://america.aljazeera.com/opinions/2014/1/why-we-need-smarterprostitutionlaws.html>
Canadian Criminal Code:
Justice Laws Website. Government of Canada, 4 Dec. 2014. Web. 7 Dec. 2014. <http://laws-lois.justice.gc.ca/eng/acts/c-46/page-110.html>
I learned that there are about 42 million prostitutes in the world from this article.
Lubin, Gus. “There are 42 Million Prostitutes in the World and here’s Where They Live.” Business Insider. Business Insider Inc., 17 Jan. 2012. Web. 7 Dec. 2014. <http://www.businessinsider.com/there-are-42-million-prostitutes-in-the-world-and-heres-where-they-live-2012-1>
New Zealand’s Prostitution Reform Act.
“New Zealand’s Prostitution Reform Act: An Effective Model of Sex Work Law Reform.” Canadian Alliance for Sex Work Law Reform. Canadian Alliance for Sex Work Law Reform, 2014. Web. 8 Dec. 2014. <http://maggiestoronto.ca/uploads/File/new_zealand_140316.pdf>
Sumerian records show prostitution dating back to the earliest records that we have, 2400 B.C.
ProCon.org. “Historical Timeline: History of Prostitution from 2400 BC to the Present.” ProCon.org. 28 Aug. 2013. Web. 7 Dec. 2014. <http://prostitution.procon.org/view.timeline.php?timelineID=000028#2400-bc-499>
This article lists the state laws, federal laws and county laws (for Nevada) regarding prostitution.
ProCon.org. “US Federal and State Prostitution Laws and Related Punishments.” ProCon.org. 15 Mar. 2010. Web. 7 Dec. 2014. <http://prostitution.procon.org/view.resource.php?resourceID=000119>
There is a NY court that offers counseling as an alternative to jail time when prostitutes are arrested. The article reported 686 arrests this year with the charges of loitering in association to prostitution.
Robbins, Liz. “In a Queens Court, Women in Prostitution Cases are seen as Victims.” The New York Times. The New York Times Company, 21 Nov. 2014. Web. 8 Dec. 2014. <http://www.nytimes.com/2014/11/23/nyregion/in-a-queens-court-women-arrested-for-prostitution-are-seen-as-victims.html?_r=0>
The communicating law states that it is illegal to communicate about exchanging sexual services for money in public. At the same time, there are bawdy-house laws against sex workers working in private places on a regular basis as well.
“Sex Work and the Law: A Changing Legal Landscape.” Ontario Women’s Justice Network. Metropolitan Action Committee on Violence Against Women and Children, Feb. 2014. Web. 4 Dec. 2014. <http://owjn.org/owjn_2009/legal-information/aboriginal-law/121>