8 – Foreign Lessons on Legalization

Some places outside of Canada, such as Germany, Australia, New Zealand, the Netherlands and the State of Nevada, have responded to the challenges posed by prostitution by legalizing and regulating the sale of sex between consenting adults. There are a number of advantages to this approach, for both sex workers and society at large. When prostitution is legalized, sex workers no longer need to hide from the police, meaning that they can practice their trade more safely and that they can come to the police with complaints about abusive clients or managers without needing to fear being charged with a crime themselves. Sex workers can enter into legal employment contracts, which can protect them from a wide range of abuses. The government can pass health regulations and promote education to make sex workers less likely to contract or spread venereal diseases. Legal sex workers can be taxed, which will provide the government with financial resources instead of them being a tax burden because of the need for the police and justice system to be involved with their prosecution. Legalization of prostitution can free up a lot of precious police time and resources to focus on other problems. This can include allocating more police resources to combating the worst evils related to prostitution which remain criminal for other reasons, such as human trafficking and the sexual exploitation of children. In this sense, legalization of prostitution between consenting adults can actually help to combat non-consensual forms of prostitution. There is a hope that, with some aspects of prostitution being legalized, the role and profit margins for organised crime is diminished.

However, despite the advantages of legalization, many people are opposed to this approach as an alternative to the abolitionist laws recently struck down as unconstitutional in the Supreme Court of Canada. They point to problems in countries that have legalized prostitution, and fear that legalizing prostitution in Canada could lead to greater numbers of people entering sex work, increases in human trafficking, or that legalization would not make a difference and that most sex work would remain as part of the criminal black market. Legalization is not a magic bullet that automatically solves the problems related to prostitution, and it will require sane, sensible legislation and regulation in order to keep the problems to a minimum and do more good than harm. The foreign examples of legalization in action that we can observe often involve a less than ideal legal approach that leads to valid criticisms. However, rather than throwing the baby of legalization out with the bathwater, we can take this opportunity to learn from the mistakes of other countries, and their poor implementation practices and develop a new legal approach for Canada that leverages the advantages of legalization while avoiding most of the pitfalls.

 

Legalized Prostitution in Germany

Germany is the country most often pointed to as an example by those critical of legalizing prostitution. While legalization has had some positive effects in Germany, critics constantly point to the fact that it has failed to stem the tide of human trafficking in that country. Many people, primarily young women, are still brought into Germany from impoverished countries, mostly in Eastern Europe, and used in conditions of virtual sexual slavery. Some Canadians fear that if we adopt a legalized prostitution regime here, we’ll be plagued by similar problems. However, it’s important to note that there are significant differences between Germany and Canada that can impact on the effects of the legalization of the sex trade on all the people involved, and that many of the factors that lead to issues with legalization in Germany are different here in Canada.

Germany’s human trafficking laws are notoriously lax, and provide relatively weak deterrents. Germany’s criminal code generally only allows a maximum sentence of five years for human trafficking, increasing to a maximum of 10 years only if the victim was a child, if serious violence occurs, or if it is committed by an organized gang1. Testimony and evidence against human traffickers are hard to come by in these cases, with Johns afraid to come forward and victims fearing deportation and the burden of proof being on the victims. Thus almost no one convicted of human trafficking receives the maximum sentence. Due to sentences of less than two years being customarily suspended in Germany, less than a quarter of those convicted of human trafficking in Germany serve any jail time whatsoever2. Conversely, Canada has much stricter penalties for human trafficking, with a general maximum sentence of 14 years for human trafficking, and a minimum sentence of 5 years if the victim is a minor, increasing to a potential life sentence if kidnapping or serious violence (including sexual violence) is committed toward a minor3. While in Germany criminals know that they can probably get away with committing human trafficking without serving any jail time, we treat it much more seriously here in Canada.

Furthermore, human traffickers in Germany have access to a far greater supply of economically vulnerable potential human trafficking victims than is the case in Canada. There are a number of relatively impoverished Eastern European countries, such as Romania, that are a ready source of vulnerable young women to German traffickers. These countries are easily and cheaply accessible by car, and it is fairly easy to bring a person into Germany due to the relatively permeable borders between European Union member countries. In Canada, there are far greater barriers to importing workers from relatively impoverished countries. Doing so generally involves both an expensive flight and and much more scrutiny from Canadian Border Services than one would get when travelling within the EU as a EU citizen. To summarize, as trafficking foreign workers into Canada is not nearly as cheap and easy as into Germany, and as penalties for human trafficking in Canada are much more severe, the risk to reward ratio for foreign human trafficking in Canada is immensely more daunting than in Germany. As such, there is no rational reason to fear that we will face a foreign human trafficking epidemic of the type that Germany faces.

Of course, not all human trafficking involves foreigners. While the term human trafficking is frequently confused with human smuggling (illegally moving people across borders), it applies to any situation where someone’s movements and activities are controlled in a coercive and exploitative way, regardless of where they come from. However, even in the case of domestic human trafficking, Canada’s more serious legal approach to the crime is useful in limiting its extent and there is little reason to expect that a well-regulated legalized prostitution regime would worsen the problem. Forcing all sex work into an illegal black market through criminalization only helps hide it from the police and and give criminal practices like human trafficking the conditions in which to thrive without much scrutiny. A well-regulated legalized regime could pull the bulk of prostitution into a realm where it could be better-scrutinized by police and allow the police to focus their attention more fully on combatting evils like human trafficking.

Germany has also experienced an influx of non-trafficked migrant sex workers from poorer EU countries. These are people who willingly chose to come to Germany to make money in the sex trade, and who are not being coerced or threatened by others. While Germany does genuinely have a significant human trafficking problem, and while in exploitative business relationships the line between trafficked and non-trafficked can become blurred, it is important to recognize that many if not most  of the foreigners who work in the German sex trade are migrant sex workers who are there legally and are not generally considered victims of human trafficking. A side effect of this influx of cheap foreign labour is that the German sex work market has become flooded, driving prices to rock bottom and putting sex workers into an even more difficult and degrading position than they would normally be in. This is deeply problematic, and commentators are right to be alarmed by the trend.

However, once again, this overabundance of sex workers is a uniquely German situation and we have little cause to fear the same thing happening in Canada. We don’t have access to the same deep pool of foreign workers who can cheaply and easily come here to work in the sex industry, and at present sex work is not a valid cause for a Canadian work visa. Even if foreigners could legally come to Canada to be sex workers, the financial barrier of travel costs would prevent the floodgates from being opened up the way that they have in Germany. Furthermore, with thoughtful regulation, in terms of continuing to make entry into Canada for the purposes of sex work illegal, and putting a registration process in place to check the legal status of sex workers, we could virtually eliminate the demand for foreign sex workers in favour of legal Canadian sex workers. All in all, we have no reason to expect Canada to have the same kind of difficulties with a flood of foreign sex labour that Germany has encountered.

 

Legalized Prostitution in Nevada

The American State of Nevada is another example of a legalized prostitution regime that is often subject to criticism. Nevada is host to an odd compromise regime that makes prostitution illegal in counties with a population above a certain size but allows other counties to decide the issue on a county by county basis. In counties where it is legal, prostitution takes the form of highly regulated brothels. The population restriction is tailored specifically to ensure that prostitution remains illegal in Las Vegas and its immediate surrounds. Prostitution is also outlawed in Nevada’s capital of Carson City and in Wahoe County, which contains the city of Reno, meaning that legalized brothels only exist in the rural areas of Nevada. Brothels are legal in 12 of Nevada’s 16 counties, although presently only 8 counties contain active brothels.

Nevada is often used as an argument that legalized prostitution will not reduce or combat illegal prostitution, as illegal prostitution remains quite common in Las Vegas and other urban centers. Generally, this takes the form of quasi-legal escort services that only openly advertise ‘company’ and ‘entertainment’ rather than sex as a workaround, and they negotiate sexual services only in private with clients. However, it’s important to note that the areas where illegal and quasi-legal prostitution is thriving, such as the city of Las Vegas, are in fact the areas of Nevada where brothels have not been legalized. For someone in Las Vegas, where brothels are not legal, a visit to a legal brothel requires a car and involves a round trip of several hours. It is hardly surprising that a black market continues to prosper in order to meet an otherwise unmet desire for convenience. The lesson that Nevada’s illegal prostitution teaches us is – if we want the legal option to replace the black market – then legislation providing for some form of legal sex work must be realistic and and cannot impose an unreasonable level of inconvenience on those seeking its services.

Aside from the black market, Nevada’s legal brothels themselves have come under some serious criticism as well. Due to the fees involved in operating a brothel in Nevada, they are typically large operations controlled by rich individuals or big business, with individual sex workers having little power or control over their working conditions. There are a number of reports of coercive and abusive practices in these brothels, with the brothels often being referred to as another kind of pimp. Furthermore, the placement of large brothels in small towns often leads to the local citizens resenting the sex workers, a situation that is not beneficial to either party. This problem is another result of the rather bizarre legal situation where brothels are forced to operate far away from the urban centers where their main clientele is located. Allowing smaller brothels to operate in urban areas would prevent this situation of a small town feeling overwhelmed by a large population of sex workers.  If a system of legalized brothels are to be put into place in Canada, we would need to learn from this by being serious about policing abusive practices toward employees and by making it feasible for sex work to operate in a small business model so that sex workers have more options and control over their working conditions.

 

Legalized Prostitution in Australia

Australia is probably the country that can most effectively be compared to Canada when considering questions surrounding prostitution. Both countries have a similar British legal and political heritage and both countries have other relevant similarities such as a relative geographical isolation from poorer source countries for foreign human trafficking and a significant aboriginal population. Up until the late 1970s, Australian laws surrounding prostitution were nearly identical to the Canadian laws recently struck in the Supreme Court, with prostitution itself being technically legal but with many acts surrounding it such as brothels, living off the avails and soliciting being illegal. Over the past several decades, a number of Australian states have adopted new legal approaches aimed at better managing the social and personal harms associated with prostitution. Laws vary from state to state and range from still holding to the same approach recently rejected in Canadian courts to decriminalization of brothels, escort services and certain types of street work. Due to the similarities between the two countries, we Canadians can learn a lot from what has and has not worked in Australia.

Many fear that legalization of prostitution will lead to a significant expansion of the sex trade as a whole. While some in the media have claimed that this expansion has occurred in the parts of Australia where legalization and decriminalization regimes have been put in place, an analysis of the available evidence in the Canadian Political Science Review has found that these claims are invariably based on “publications that provide no sources or research-based references and no information about how their figures were actually obtained” and that “other publications have used unsubstantiated assertions, newspaper commentary or cited increases in criminal prosecutions and/or the number of legal brothels as ‘evidence’ of an ‘expansion’ of the sex trade.”4. While there has been a lot of alarming talk about expansion of the sex trade in Australia, there is no reliable evidence to support this claim of expansion. It most likely simply stems from legal prostitution being more visible than illegal prostitution. There is no credible reason to believe that there has been a dramatic expansion in the Australian sex trade after legalization and decriminalization measures were implemented. As such, there is also no reason to expect such an expansion in Canada, if similar measures to be adopted here.

Concerns about legalization of prostitution in both Australia and Canada often center around the idea that legalization enables human trafficking and criminalization helps to combat it. However, once again the evidence available regarding the Australian example gives us no credible reason to believe that this connection does or would exist. It is true that Australia is rated as a ‘high’ incidence destination for human trafficking by the UN Office on Drugs and Crime, but Canada under its recently struck laws is also rated ‘high’, and the United States, which for the most part has even stricter prostitution laws than either Canada or Australia, is rated ‘very high’ as a destination country for human trafficking5. Human trafficking statistics are difficult to track accurately and may be influenced by a wide range of factors, such as geography, economics, border control and laws regarding human trafficking itself. However, an analysis of the available data finds that “it is not at all clear how domestic prostitution laws relate to [human] trafficking flows”6. Simply put, we have no reason to believe that legalization of prostitution leads to increases in human trafficking, nor that criminalization of prostitution aids in combating human trafficking.

Although some of the often-heard complaints don’t stand up to serious scrutiny, the Australian system of legalization remains far from perfect. Difficulties in acquiring zoning permissions and the fees involved can provide serious barriers to setting up a legal brothel, which results in a continuing incentive to operate illegal brothels. It also creates a situation where brothel operation is only viable for large, well-connected businesses rather than small groups of sex workers. Because of this, sex workers continue to lack control over their working conditions which besides being a negative in its own right (some have compared brothel owners to pimps) also incentivizes sex workers to work illegally in small underground brothels rather than surrender control to a brothel owner or risk the dangers of working alone7. In Canada, we have the opportunity to learn from the Australian example and minimize these issues of problematic working conditions and underground brothels by created legislation that does not create barriers to brothels existing as sex-worker-controlled small businesses. Of course, larger brothels could still exist, but sex workers having meaningful alternatives would prevent the kind of monopoly that leads to oppressive working conditions and would require larger brothels to offer less exploitative working conditions in order to be competitive.

 

 

Conclusion

Winston Churchill once famously proclaimed, “No one pretends that democracy is perfect or all-wise. Indeed, it has been said that democracy is the worst form of government except all those other forms that have been tried from time to time.” This sentiment applies equally well to the topic of the legalization of prostitution. The attempts at legalization that have been attempted have all been fraught with various flaws, and none has or will be able to resolve 100% of the problems surrounding the sex trade. However, when noting the problems surrounding legalization it is important not to fall victim to exaggeration or alarmism and to remember the wider context in which these legalization regimes exist.

As well, by learning from the experiences of those countries that have used the legalization approach, Canada has the opportunity to create laws that significantly reduce the problems and pitfalls that have been experienced there. We must continue to take a very serious stance on human trafficking, and use the increased visibility to police inherent in a legal sex trade as a tool to help crack down on human trafficking. We must ensure that the regulation around legalized brothels makes it possible for sex workers to have some control over their working conditions by making small business brothels viable. We must also avoid placing the type of unfeasible conditions on sex work, such as continuing to ban it in major population centers as in Nevada, that make the legalized options sufficiently impractical as to lead to a thriving underground sex trade.

The legalization approach to prostitution is not perfect or all-wise. However, worse still are all of those abolitionist (criminalization of prostitution and/or the acts around it) approaches which have been tried. Hundreds if not thousands of women involved in the sex trade have been murdered and the Supreme Court has been clear in its declaration that Canada’s current abolitionist approach is unconstitutional in that it does not protect citizens’ safety8. The Nordic approach, trumpeted by many as a viable path forward, is mired in misleading hype and would simply continue or in some cases exacerbate most of the issues that lead to our current laws being defeated in the courts9. We all want a magic wand that can resolve all of the problems surrounding the sex trade, but no such perfect cure-all exists and we must act realistically to mitigate as many of the harms as we can. Legalizing and regulating prostitution, despite its imperfections, remains the best of our imperfect options moving forward.

 

  1. German Criminal Code, Section 232 []
  2. US Department of State Trafficking in Persons Report 2013 – Germany []
  3. Canadian Criminal Code, Section 279.01-279.011 []
  4. Jeffrey & Sullivan, 2009. ‘Canadian Sex Work Policy for the 21st Century: Enhancing Rights and Safety, Lessons from Australia.’ Canadian Political Science Review 3.1: 63 []
  5. Jeffrey & Sullivan, p 64 []
  6. Jeffrey & Sullivan, p 64 []
  7. Jeffrey & Sullivan, p 65-66 []
  8. Please see my article on the harms caused by bad laws for a full explanation []
  9. Please see my article on the Nordic Model for a full discussion of this point []

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