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Prostitution Policy Options – paulkasman

Prostitution Policy

Paul Kasman

30/11/12

This paper will introduce the need for the decriminalization of prostitution to address sex workers’ safety, and outline criteria for policy success.

The Problem

In September 2012, the Supreme Court of Canada ruled in Canada v. Downtown Eastside Sex Workers United Against Violence Society et al. (SWUAV et al.) that SWUAV and Sheryl Kiselbach could continue with their challenge of Canada’s prostitution laws (Mulgrew, 2012, para. 3). SWUAV et al. allege that the laws threaten sex workers’ safety by compelling them to work covertly (Mulgrew, para. 11), violating their constitutional rights under the Charter of Rights and Freedoms.

They claim that the laws infringe on section 2 (b) freedom of expression, by outlawing communication which could increase safety; section 2 (d) freedom of association, because prostitutes cannot organize to improve their safety; section 7 security of the person, because prostitutes might be arrested if they attempt to improve their working conditions; and section 15 equality rights, by discriminating against a disadvantaged group (Ha-Redeye, 2012, para. 4). As of November 25, 2012, this case is still awaiting resolution in court.

The Policy

Prostitution is legal in Canada. However, keeping a bawdy house, communicating in  public for the purposes of prostitution, and living off the avails are illegal (“Sex-trade workers”, 2012, para. 2). Should the Supreme Court of Canada strike down these laws as unconstitutional, a new policy will be required. This paper proposes a policy that decriminalizes prostitution, by removing “all criminal sanctions for participation in the adult consensual sex industry” (FIRST, n.d., para. 3).

Policy Success

As stated in McConnell (2010), there are two main components of policy success; achieving the goals that the policy’s advocates intended to achieve, and minimizing criticism (p. 351). These are the main criteria used in this paper to illustrate policy success. Regarding the first component, the new prostitution law must allow sex workers to work more safely and determine their own working conditions (Mulgrew, 2012, para. 9). Success should be measured by data showing improvements in targeted variables linked to prostitution, as will be discussed below.

Positive media coverage must be used to minimize criticism and to educate the public on the merits of the new policy. Advocates of the policy must develop a positive problem definition by establishing cultural symbols and values that resonate with Canadians, and integrate them into a media campaign which explains the causes and consequences of prostitution (Weiss, 1989, p. 97 & 102). A priming, framing, and media strategy emphasizing the value ofequal rights can contribute to the public’s acceptance of decriminalization, as was successful for the gay marriage lobby (Lehman, 2006, p. 2-3 & 51). This involves pro-decriminalization experts using the media to change attitudes by re-framing the public’s perceptions (Weiss, p. 112).

Policy Community and Entrepreneurs

A policy community is a network of individuals, groups, agencies, government departments, and organizations, involved with decision making in a given policy field (Pross as cited in Smith, 2003, p. 28). The prostitution policy community in Canada includes women’s groups, religious groups, federal political parties, and several policy entrepreneurs, which are individuals who work to promote policy changes (Crow, 2010, p. 299). There are three main policy positions on prostitution law reform in the community. Each position is based on one of three problem definition solutions, which are the status quo, abolition, and decriminalization. Each member of the policy community support one of these solutions, as shown in Appendix 1. These three solutions will now be discussed.

Supporters of the Status Quo

The federal government is the only member of the policy community that publicly supports the status quo. There is no evidence that any of the other members of the policy community have significant influence on the government’s policy. A possible explanation for the government’s solitary devotion to the status quo is that key decision makers, particularly those in cabinet, support this policy. According Sabatier (as cited in Freudenburg & Gramling), the position of “responsible officials” is critical to the likelihood of policy change (2002, p. 25). The responsible official for prostitution law is Justice Minister Rob Nicholson, who has said that the government has “no intention of changing any of the laws relating to prostitution in this country” (White, 2008, para. 2). Prime Minister Steven Harper has said that his government supports the current laws and will resist any changes (Jones, 2010, par. 9). Pal (2000) discusses “deliberately doing nothing” as a rational policy instrument choice (p. 7). There is no mention of prostitution or the sex-trade in the Conservative Party’s 2011 election platform, which indicates that the issue is not a priority for the Conservative government (Conservative Party of Canada, 2011). A likely reason for choosing the “deliberately doing nothing” policy instrument is that controversy is inherent to prostitution policy (Slayton, 2009, para. 6). This could also be the reason that the government has not articulated a clear problem definition of prostitution’s causes and consequences. Regardless, leaving prostitution laws unchanged will not allow sex workers to work more safely. Therefore, it does not meet the criteria for policy success.

Supporters of Abolition

Abolition of prostitution refers to the criminalization of prostitutes’ clients, and the decriminalization of the actions prostitutes themselves (Lakeman, 2008, para. 1-3). The abolitionist cause is lead by the Women’s Coalition for the Abolition of Prostitution (WCAP), an umbrella organization of women’s groups. This group was active in Canada v. Bedford, a recent case similar to Canada v. SWUAV et al., where it argued for the court to strike down the laws that criminalize prostitutes, while upholding the laws targeting prostitutes’ clients. Regarding Canada v. SWUAV et al., WCAP member Vancouver Rape Relief & Women’s Shelter argues that the government should move towards abolition by providing women with economic security (Vancouver Rape Relief, 2012, para. 2). Joy Smith, a Conservative backbench Member of Parliament, is a prostitution policy entrepreneur who argues for abolition, despite the Conservative government’s official status quo policy. She advocates a policy based on prostitution laws currently used in some Nordic countries (McLeod, 2011). Some Christian groups, including the Evangelical Fellowship of Canada, also advocate abolition (“Christian groups”, 2012).

Critics of abolition have shown that it keeps sex workers in an unsafe, criminalized environment (FIRST, 2010, p. 1). The Swedish Ministry of Justice and Police released a report showing that abolition has increased the number of violent clients as a proportion of all clients, increased sex workers’ fear of violence, and increased the number of clients pursuing unprotected sex (Canadian HIV/AIDS, 2005, p. 28). Therefore, abolition does not meet the criteria for policy success.

Abolition and decriminalization advocates generally have problem definitions which recognize social conditions as the most common cause of prostitution (Pivot, 2012, para. 1; McLeod, 2011, para. 5). Both have problem definitions that see violence as a consequence of the current laws (Pivot, para. 1; McLeod, para. 7).

Supporters of Decriminalization

The New Democratic Party, the Liberal Party, and the Bloc Quebecois all support decriminalization (Hutchinson, 2012, para. 26). Lawmakers from these groups will be needed to perform the political lobbying necessary to develop the decriminalization law and pass it through parliament, as shown in Appendix 2.

The Pivot Legal Society, a Vancouver-based legal advocacy organization, is a key supporter of decriminalization (Theodore, 2006, para. 2). Katrina Pacey, a Pivot lawyer, is representing SWUAV and Kiselbach in Canada v. SWUAV et al. A self-proclaimed “activist first and a lawyer second”, Pacey is a prostitution policy entrepreneur who works towards getting Parliament’s attention on sex workers’ rights (Elien, 2009, para. 3 & 4). She opposes abolition, which she claims is based on misguided “moralism and stigma” (Kelly & Pacey, 2011, para. 8). By virtue of their litigation for changes to prostitution laws, SWUAV and Sheryl Kiselbach are central to the decriminalization policy community. Likewise, Terri-Jean Bedford, Amy Lebovitch, and Valerie Scott are policy entrepreneurs in the community for bringing decriminalization through the courts with Canada v. Bedford. They successfully litigated to the Ontario Court of Appeal to allow Ontario sex workers to hire bodyguards and organize brothels (Stechyson, 2012, para. 7).  Like SWUAV et al., they will be heard by the Supreme Court of Canada in the near future.

Decriminalization meets the criteria for policy success by allowing sex workers to work more safely, and determine their own working conditions, as will be discussed below.

The Public’s View

Both the government and the courts claim that they are taking their positions on prostitution policy based on the public interest (Jones,  2010, para. 9 & 10; Mulgrew, 2012, para. 14). Many of the groups in the policy community are grassroots organizations, whose members include prostitutes and other disadvantaged people. However, it is unclear if the broader public’s voice is central to the discussion of prostitution law reform. Prime Minister Harper has stated that his support for the current laws is based on what the government believes most Canadians want (Jones, para. 9 & 10). However, an Angus Reid Public Opinion (2010) poll reported that only 15% of Canadians support keeping prostitution laws the way they are. This indicates that government policy is inconsistent with public opinion. Decriminalization had the support of 49% of Canadians, while 24% supported abolition (p. 1). An Ipsos (2012) poll found that 65% of Canadians support legalizing brothels (para. 1). The Canadian public’s support for decriminalization gives that policy added credence.

The Policy’s Likelihood of Success

Decriminalization will be successful in improving sex workers’ safety, particularly through improved police protection and health care. The current prostitution laws create an adversarial relationship between police and sex workers, which precludes them from getting police protection and makes it easier for pimps to exploit them (Canadian HIV/AIDS, 2005, p. 10). As shown in Appendix 2, decriminalization would create an opportunity to improve this relationship, significantly contributing to the safety of sex workers.

Current prostitution laws contribute to sex workers’ exposure to HIV, since a lack of control over their working conditions leaves them vulnerable to being forced into unsafe sex (Canadian HIV/AIDS, 2005, p. 11). Brothels allowed by decriminalization will provide increased security and safety in numbers.

However, other challenges will remain. The New Zealand case shows that decriminalization does nothing to decrease the number of prostitutes, which has remained static (Abel, 2009, p. 527). Abolition in Sweden has produced the same result (Abel, p. 528), indicating that there is currently no reliable strategy for decreasing the number of prostitutes. Also, the public’s attitudes, stigma, and discrimination towards sex workers will continue to some degree after decriminalization (Baziuk, 2011, para. 2 & 3). Finally, sex workers will require resources to improve their safety beyond decriminalization, including access to condoms and safe-injection sites (Baziuk, para. 7).

Challenges with Implementing Decriminalization

Implementation is defined as what develops between a policy intention and policy results (deLeon & deLeon, 2002, p. 474). Given prostitution’s nation-wide scale, numerous stakeholders, and inherent complexity, there will be challenges with implementation.

The government must obtain sex workers’ input throughout the process to implement decriminalization effectively (deLeon, 2002, p. 478). Street-level bureaucrats such as social workers and health professionals who have ongoing contact with individual sex workers, could send sex workers’ opinions and ideas to decision makers through their organizational channels. While there are limitations to street-level bureaucrats’ ability to carry-out this task, their cooperation is needed (deLeon, p. 480), because they have greater access to sex workers than senior decision makers do.

To coordinate implementation among the three levels of government as shown in Appendix 2, the federal government must institute a process to establish which federal, provincial, and municipal laws should apply to prostitution in the decriminalized environment.

Incautious implementation threatens to create new problems if not managed properly. For example, the relaxation of prostitution laws in Holland led to sex trafficking, resulting in 40-65% of prostitutes in Dutch cities coming from third world countries (Benson & Matthews, 1995, p. 397). The Canadian government can work to prevent this by redirecting police resources saved by decriminalization towards fighting human trafficking.

Part of sex worker safety is providing the tools needed to leave the trade. A British study found that 43% of sex workers surveyed wanted to leave prostitution, but few felt that they had any alternative employment options (Benson, 1995, p. 412). As a part of implementation, Canada should use New Zealand’s successful Prostitution Reform Act of 2003 as a template for providing sex workers with tools to leave. These tools includes employment contracts providing sex workers with Employment Insurance, Canada Pension Plan (van der Meulen, 2012, para. 66), workers compensation (van der Meulen, para. 23) and records of employment. These tools could be used to obtain housing and bank accounts (van der Meulen, para. 22), which are helpful with transitioning into the mainstream workforce.

The Process’s Likelihood of Success

Success for this policy process will depend on insuring that the stakeholders discussed throughout this paper (sex workers, police, politicians, etc.) feel that they have influenced the policy. However, there are many divergent views among the stakeholders, which complicates the process significantly. For example, if decriminalization causes a problem that threatens politicians’ chances of re-election, the policy process could be threatened (Hardaker, Fleming & Lien, 2009, p. 261). The process could also be threatened if abolitionists (or some other group) mount a media campaign that resonates with Canadians more than the pro-decriminalization campaign discussed above. Therefore, political lobbying and the media campaign will be critical in ensuring a successful policy process.

How Policy Makers Will Know Success is Achieved

Policy makers will know that the decriminalization policy has been successful when data shows that sex workers’ safety has improved, and when criticism has been minimized.

Data must be obtained from measurable variables, such as sex worker assault, robbery, rape (Weitzer, 2007, p. 29), and HIV transmission rates and be used to track progress (Parker, 1998, para. 2). For example, multi-year test results showing a reduction in HIV transmission rates would be evidence of increased sex worker safety. This data could be gathered by an organization that keeps track of the number of sex workers and provides them with support and education. The New Zealand Prostitutes Collective serves this purpose in that country, and is credited with helping to control the spread of HIV/AIDS (“New Zealand Prostitutes Collective”, 2012, para. 1).

Policy makers will know that criticism has been minimized when political opposition becomes marginal. One example of political marginalization is when a policy loses the official support of every party in parliament, as has happened to the anti-gay marriage lobby in recent years. In order to get to this point, a public awareness campaign must humanize sex workers by emphasizing, for example, that sex workers are generally not conduits for HIV transmission (Canadian HIV/AIDS, 2005, p. 3) and that decriminalization provides an enhanced ability to practice safe sex (Canadian HIV/AIDS, p. 3).

The Logic Model for Implementing Decriminalization

Appendix 2 shows a Theory Logic Model, which connects the theory behind decriminalization policy with the anticipated impact of increased sex worker safety. There are three assumptions that form the basis of this connection, which have already been discussed in this paper. These are that international experiences have shown that decriminalization of prostitution is effective in improving sex worker safety (e.g. New Zealand); that decriminalization will make sex workers safer than abolition and the status quo; and that when sex workers are decriminalized, they will receive better treatment from public servants (e.g. police).Appendix 2 and the below discussion, show how these three assumptions simultaneously support the network of inputs, activities, outputs, and outcomes, that result in the impact of improved sex worker safety. Precise implementation timeframes and measures are beyond the scope of this paper, and would have to be established by the government as it implements the policy. However, using decriminalization in New Zealand as a model, all of the outcomes discussed below should be fulfilled in time for a full policy review after five years (Canadian HIV/AIDS, 2005, p. 28).

The anticipated Supreme Court ruling striking down the prostitution laws, along with policy entrepreneurs, lawmakers at all levels of government, and key members of the prostitution policy community, will lead to a new law decriminalizing prostitution. Using the Canada v Bedford ruling as a template, all levels of government should have 30 days after the old law is struck down to make arrangements for the new law to come into force (Poisson, 2012, para. 6). Following this, all sex workers in Canada will work in a decriminalized environment, where they are provided with the same protections and rights as other Canadians. Sex workers will be able to operate openly in this environment, subject to regulations effecting prostitution as a category of business. Prostitution will be kept out of residential areas by bylaws such as zoning, that already regulate escort agencies and massage parlours in several Canadian cities (Canadian HIV/AIDS, 2005, p. 14). Sex workers will be provided with standard workers’ rights that will increase their control over working conditions, and the legitimacy required to provide ongoing input into the development of prostitution policy.

Better relations with health care staff and police will result in sex workers getting full access to health services, counseling, and police protection before the five year review of the law. This will result in knowledge leading to the prevention of the spread of sexually transmitted diseases, healthier lives, and enhanced protection from violence over the long term.

In the run-up to decriminalization, and in the years that follow, members of the policy community who support decriminalization will deliver a public awareness campaign to educate Canadians about sex workers and the new law. By using the media and community outreach, this will reduced stigma towards sex workers and increase support for decriminalization over the long term. Special efforts must be made to educate residents of areas close to where sex workers operate.

The Policy Making Model Used

This policy process has elements of both the rational policy making model and the incremental policy making model. The rational model is used when the decision maker considers as many values and theories relating to a predetermined problem as possible, and selects the policy that is expected to most efficiently maximize those values. The incremental model is used when the decision maker considers past experiences and a few key values and alternatives, to select a suitable policy that is only mildly different from the current one (Lindblom, 1959, p. 79).

The presence of a rational model is indicated by my use of a means-ends analysis, in which sex worker safety was established as the ends before decriminalization was determined as the means. Decriminalization was selected from the policy options because it most efficiently maximized the values linked to sex worker safety. The rational model is also revealed by the fact that decriminalization is completely different from the current policy.

This policy process also uses the incremental model, because I selected from just three pre-existing policy options, and used comparisons (e.g. Sweden and New Zealand) to minimize reliance on theory. The process ignored many related values, such as housing prices near brothels, tax implications for sex workers, and sex tourism, because it is impossible to establish the policy’s many potential effects. The process only attempted to foresee consequences in a limited way, by comparing the experiences of countries using abolition and decriminalization. This process reveals itself as incremental by acknowledging the need for initiatives beyond decriminalization to improve sex worker safety, such as countering discrimination against sex workers.

Conclusion

Canada’s prostitution laws are resulting in unsafe work environments for sex workers, and should be reformed. Current events are making reform more likely. The prostitution policy community is divided between those advocating no change, abolition and decriminalization. The decriminalization policy is most likely to achieve sex worker safety by removing them from a criminalized environment. By achieving the goal of increased sex worker safety and defeating major criticisms, the new policy will achieve success.

WC: 2998

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Appendix 1

Appendix 2