This brief argues that laws that interfere with prostitution cause more social harm than they prevent. Laws prohibiting soliciting for the purpose of prostitution (Section 195.1 of the Criminal Code) and keeping a common bawdy house (Section 193) cannot be defended on the basis of the principles that should govern the criminal law in a free society, a society which values individual liberty. Accordingly, these sections of the Criminal Code should be repealed.
Prostitution as an issue has recently become the subject of much discussion. Since the decision of the Supreme Court of Canada in Regina v. Hutt (1978) C.C.C. (2nd) 418, soliciting for the purpose of prostitution in a public place has been a criminal offence only if the solicitation can be characterized as “pressing and persistent importuning.” This decision made it more difficult for the police to secure convictions under Section 195.1 and there have been numerous proposals that the Hutt decision be reversed by appropriate amendments to Section 195.1. We oppose these proposals both on the general grounds which lead us to advocate the repeal of Sections 195.1 and 193, and on the specific ground that the social problems which have led to these proposals would be better dealt with by other means than the criminal law.
Our argument is divided into two parts. We begin with a discussion of the nuisance problems which have led to proposals for the amendment of Section 195.1 in order to reverse the Hutt decision, arguing that these problems do not justify extending the Criminal Code. And we conclude with arguments based on the premise that the criminal law should not be used to interfere with actions that are not seriously harmful to others.
I. Soliciting, Hutt and the nuisance problem
Sections 195.1 and 193 of the Criminal Code place unparalleled restrictions on a lawful occupation. Although prostitution itself is legal, and, as we will outline below, does not cause harm to others, prostitutes are harassed by being denied a place of work and, if Section 195.1 were amended to repeal the Hutt decision, they would also be denied a means of acquiring clients. This is grossly unfair because prostitution itself is not a harmful activity.
Objections to prostitution generally fall within two categories: the moral aspects, to be dealt with below, and the nuisance aspects. The criminal prohibition against soliciting is aimed at the nuisance aspect. As the law now stands, soliciting is not criminal unless it creates a nuisance by being pressing and persistent. Similarly, the bawdy house section strikes at the nuisance aspect of prostitution. However, the nuisances attendant on the business of prostitution could be dealt with without resort to the criminal law. We will discuss possible remedies below.
The Director of Social Planning for the City of Vancouver, who has studied the issue of prostitution in some depth, reports that the West End of Vancouver “is the only residential area in Canada with a highly visible population of street prostitutes.” It is quite clear from the Director’s reports that to focus the blame for street nuisances on the prostitutes themselves is inappropriate:
The prostitutes, numbering between 20 and 40 on an average night, congregate in the nine block area bounded by Comox, Bute, Burnaby and Nicola Streets. Their nightly activity results in traffic congestion, a high noise level and consequent disruption of residents’ sleep and neighbourhood peace precipitated by customers and onlookers. (emphasis added)
The Report of Corporation Counsel to Vancouver City Council adds:
It is thought that many of the street nuisances in the West End are the result of street activity generated by the availability of prostitutes in the area. People coming to deal with the prostitutes or simply to observe are often noisy and unruly. (emphasis added)
Clearly, then, the nuisance is not occasioned by the prostitutes; the nuisance is occasioned by the “customers and onlookers.” Yet the solution offered by Vancouver City Council, the Vancouver Police Department and the Concerned Residents of the West End to “traffic congestion, high noise level, disruption of sleep and peace” is to arrest prostitutes! Finally, in her report on soliciting, Pat Carney, the member of Parliament for Vancouver Centre, concluded that:
Well aware of the law, most prostitutes conduct their activities in an orderly fashion,indicating their availability without pressuring prospective customers. (emphasis added)
Not only is the nuisance of prostitution primarily and directly to be attributed to customers and onlookers rather than to the prostitutes themselves, but it is also restricted mainly to a few distinct neighbourhoods. In Vancouver, for instance, there are four main areas where prostitutes are active, but only one area in which there is a significant associated nuisance problem. The Hastings and Main, Georgia and Hornby and Granville Mall areas are largely free of the kind of rowdy and obnoxious behaviour on the part of customers and onlookers that is evident in the West End.
We have already suggested that it would be unfair to criminalize the behaviour of one class of people, prostitutes, in order to deal with the behaviour of another class of people, especially when the problem is basically simply a nuisance problem. Our present point is that this would be doubly unfair given that the problems in question do not follow prostitution wherever it is found, but have arisen primarily in one neighbourhood in Vancouver, and perhaps in a few other isolated areas in Canada. In addition, the rowdy and obnoxious behaviour that has followed prostitution to Vancouver’s West End is a problem mainly because the West End is a residential neighbourhood. Not only is the problem not due to prostitution per se; not only is it restricted to a few distinct areas; but it is also a problem of context, a problem of rowdiness in a residential area.
Many would say that if you get rid of the prostitutes, you get rid of the problem. But, first, history indicates that there will always be prostitutes and, second, the nuisance problem is not associated with prostitutes in all geographic areas. We suggest the problem ought to seen for what it is, a nuisance problem, and ought to be dealt with as such. These observations lead us to proposals for dealing with the nuisance problems. For instance, municipal zoning by-laws are the obvious way to deal with one aspect of the problem. We will present other proposals below in Part III of this brief. We will conclude this section by summarizing its recommendations.
We have been arguing that it would be an unfair and improper use of the criminal law to amend Section 195.1 with a view to overturning the effect of the Hutt decision. This would be to criminalize certain behaviour of prostitutes in order to correct what is a nuisance problem created by the behaviour of others, namely customers and onlookers, and to correct a nuisance problem that is limited to certain neighbourhoods where prostitutes conduct their business. Hence, Section 195.1 ought not to be amended with a view to overturning the decision in Hutt.
II. The harm to others principle
We shall turn now to arguments based on what we call the “harm to others principle”. These arguments support our position that Sections 195.1 and 193 of the Criminal Code ought to be repealed.
John Stuart Mill’s objective in On Liberty was to define “the nature and limits of the power which can be legitimately exercised by society over the individual”. He asserted:
…one very simple principle, as entitled to cover absolutely the dealings of society with the individual in the way of compulsion and control… that the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. (Everyman, p. 72)
Understood as a principle governing the use of criminal law, this principle has very wide support. It has been endorsed by the Canadian Committee on Corrections and it is supported by people of all democratic political persuasions who believe in liberty. It is the appropriate principle to refer to in assessing the justification of criminal law and of proposals to amend the criminal law.
This “simple principle” has powerful implications. A law should only restrict individual liberty if other individuals are in danger of serious harm. A government must act to restrict individual liberties extremely cautiously and only when it is satisfied that there is a real peril of substantial harm occasioned. In that case, the government must act carefully to ensure that the liberties which are restricted are the liberties of those individuals who have actively and intentionally occasioned the harm.
We recognize that some might object to the arguments we have advanced so far on the basis that they do not deal directly with the issue of whether prostitution itself, or acts of prostitution, should be criminalized. Many people are certainly offended morally by prostitution, by the marketing of sex, by the sexual exploitation of poor and uneducated women. People who are morally offended by prostitution, and who think that whatever is seriously immoral ought to be made criminal, may advocate enlarging the Criminal Code‘s restriction on the activities of prostitutes.
However, it would be improper to criminalize behaviour, even behaviour which is considered to be immoral, unless it is harmful to others. To support this position is not to say that the State should encourage or approve of immorality. The repeal of Sections 195.1 and 193 would no more indicate approval of prostitution than did the repeal of sections governing private sexual behaviour between consenting adults indicate approval of all such possible behaviour. Our point is that legal moralism, so-called, is incompatible with the harm principle and with a commitment to liberty.
What is the harm caused by prostitution which would justify invoking the criminal law? It is not possible to provide any justification for making being a prostitute criminal. For, except in cases in which being a certain type of person is a serious danger to others (which is plainly not so in the case of being a prostitute), only acts can properly be made criminal. Further, according to Mill’s principle, the only kind of acts that can properly be made criminal are those which do, or threaten to do, serious harm to others. Thus, the whole matter turns on whether or not it can be shown that acts of prostitution do, or threaten to do, serious harm to others. It is also to be emphasized that one cannot simply gesture towards things like injury to minors or invitation to criminal elements to fill this need. These kinds of considerations are certainly relevant, but one who wants to rest the law on them must demonstrate (rather than merely believe) that they are causally linked to acts of prostitution. We do not believe that such a demonstration can be performed.
Some might suggest that prostitution causes distress to those who are offended by it when they are able to see public soliciting for prostitution. However, such distress is not “harm” in the sense or degree which would permit legal sanctions to prevent it. And, more importantly, if we recognize that liberty of the individual is a social value then we must give full effect to that recognition and not limit it on the basis that some individuals are distressed (even seriously) by the behaviour of other individuals. As Professor H.L.A. Hart states in Law. Liberty. and Morality (1963):
If distress incident to the belief that others are doing wrong is harm, so also is the distress incident to the belief that others are not doing what you want them to do. To punish people for causing this kind of distress would be tantamount to punishing them simply because others objected to what they do; and the only liberty that could coexist with this extension of the utilitarian principle is liberty to do those things to which no one seriously objects. Such liberty is plainly nugatory. Recognition of individual liberty as a value involves, as a minimum, acceptance of the principle that the individual may do what he wants, even if others are distressed when they learn what it is that he does—unless, of course, there are other good grounds for forbidding it. No social order which accords to individual liberty any value could also accord the right to be protected from distress thus occasioned. (Oxford University Press, p. 47)
Some might object that prostitution causes harm to the prostitute, who is exploited and degraded by being used as an object for another’s gratification. This need not be denied. The point is that a commitment to liberty rules out paternalistic criminal legislation—legislation that would coerce adultsfor their own (alleged) good. While paternalistic legislation may be justified in some instances, as in the case of children or persons who lack full natural capacities, adults in full possession of their capacities have a right to be the judges of their own good. Child prostitution is an issue that is not specifically addressed in this brief. The present discussion concerns adult prostitution; and adult prostitutes, like all of us, must not be coerced on the basis of someone else’s conception of what is good for them.
Given all of this, there would be no justification for making prostitution illegal, or for making acts of prostitution illegal. It follows that laws against soliciting for the purpose of prostitution and operating a common bawdy house cannot be justified, since they are in fact an indirect means of criminalizing prostitution. In light of the principles we are advocating, soliciting for the purpose of prostitution is properly criminal only if it is harmful to others. We submit that there is not harm connected with such soliciting unless it is of a pressing and persistent nature. However, even if it is pressing and persistent the harm is at most a nuisance and is not sufficiently serious to warrant section 195.1. Nuisance problems are more appropriately dealt with by regulatory sanctions than by the criminal law. Accordingly, we recommend repeal of Section 195.1.
Even if it is thought that the nuisance problem of pressing and persistent solicitation is sufficiently harmful to be of real concern, there is no justification for singling out soliciting for purposes of prostitution, as Section 195.1 of the Criminal Code does. For insofar as it is pressing and persistent, the solicitations of anyone for any purpose should be liable to sanctions in the same way in which those of a prostitute are. In either case, reference to prostitution is immaterial, and indeed discriminatory.
Turning now to section 193, very similar arguments need to be advanced. As prostitution does not create harms of the kind or degree that justify its criminal prohibition, and as soliciting for the purpose of prostitution does not do so either, it would seem unlikely that the prohibition on “common bawdy houses” could be justified. Where is the substantial harm to others that might plausibly be claimed to follow inevitably from the operation of brothels? Many sophisticated, civilized, peaceful, and safe cities contain brothels that are not criminal: Amsterdam, Hamburg, etc… The list is familiar to anyone who is informed on the issue. No harms are evident.
We repeat that substantial harm must be shown to be causally linked to the existence of brothels. It is not enough simply to gesture toward things like the invitation to criminal elements. Moreover, the causal link must be stronger than the link from, say, professional sports to illegal gambling or rock musicianship to illegal drug use. Otherwise, the argument would support abolishing professional sports and rock concerts. Moreover, the harm must be substantial. It is not enough to refer to the offense that many would be caused to feel by their knowledge that brothels exist. We see no evidence of harms of sufficient degree to justify interference with the operation of brothels. Accordingly, we recommend the repeal of Section 193 of the Criminal Code.
If Sections 195.1 and 193 are not repealed, the State will continue to be in the peculiar position of prohibiting a legal business from establishing premises and from securing clients in a manner which is not in itself injurious to anyone.
The repeal of Section 193 would allow prostitutes to establish themselves in privacy in brothels in appropriate urban areas. This would eliminate much of the present nuisance problem because it would lead many prostitutes to cease seeking clients in the streets. Sensible zoning bylaws and landlord tenant laws could meet any worries that tenants of apartment buildings, or householders, might have about the establishment of brothels in their neighbourhoods. Residents have similar worries about pubs in residential areas and these worries are met by provincial and municipal licensing and zoning laws.
Some prostitutes would continue to see clients in the streets.
Attendant nuisance problems could be alleviated by zoning bylaws that prohibit the buying and selling of “sexual services” in residential districts. Municipalities could deal with such situations in the same way as they presently deal with nuisances that arise due to the operation of discotheques or movie theatres in residential areas.
Any problems that remained and that were properly problems of criminal behaviour could be met by the enforcement of existing Sections of the Criminal Code such as 171 (Causing a Disturbance, Indecent Exhibition, Loitering), 305 (Extortion) and 381 (Intimidation).
We conclude with a quote from the Report on Canadian Criminal Law of the Reform Commission of Canada:
We have too much criminal law. Naive beliefs that every problem can be solved by “having a law against it” has proliferated statutes, regulations and offences. We have too many criminal charges, too many criminal cases in our courts, too many people in our prisons. (p. 17)