Tom Flanagan is a distinguished fellow in the School of Public Policy, University of Calgary.
Bill C-36, the federal government’s legislative draft on prostitution, is a strange piece of work for a conservative party to put forward. Its proposal to criminalize the purchase, but not the sale, of sex – the so-called Nordic model – is drawn from the lore of radical feminism, which identifies heterosexual relations with patriarchal domination.
The bill is an unfortunate departure from the British legal tradition. Neither the sale nor the purchase of sex has been illegal in Britain, Canada, Australia, and New Zealand. Rather, parliaments in the British tradition have legislated to contain the evils associated with prostitution: to combat the spread of venereal disease, to reduce disorder on the streets, and to prevent young girls (and boys) from being forced into a life of prostitution. Legislation has created criminal offences surrounding prostitution, but has not criminalized the central economic transaction.
That approach is essentially the same as the “harm reduction” strategy that is now replacing the misguided “war on drugs.” Both recognize that the state will never succeed in stamping out vice when willing sellers and buyers are in the market. Draconian measures produce high costs for the state as well as assaults on individual liberties; but black markets in vice flourish more strongly than ever, because the higher prices resulting from harsh law enforcement produce lucrative economic incentives for purveyors who are willing to run risks.
Harm reduction is not naive libertarianism. Realistic containment and reduction of harm is a genuinely conservative approach, based on a sober assessment of human weakness. Eradication is for moralistic crusaders and millenarian transformers of the human condition. Campaigns for the complete eradication of alcohol, gambling, prostitution, and drugs have marked the history of the United States, whose Puritan founding has given its political culture a millenarian flavour. Canada has not been immune to such moralistic temptations; but our British legal heritage, reinforced by the Catholic permissiveness of Quebec, has generally prevented us from going as far as American crusaders.
Perhaps the most alarming thing about Bill C-36 is its potential to reunite the coalition of radical feminists, social conservatives, and law-enforcement authorities that gave us the triple moral panic of the 1980s over imaginary sexual abuse of children: satanic abuse in child-care centres, repressed-memory syndrome, and pedophile rings. Families were shattered and people were sent to jail, mainly in the U.S. but also in Canada, for having committed implausible or even impossible sexual offences. Radical feminists wanted to strike at male domination of women and children, social conservatives were worried about sexual permissiveness, and law-enforcement authorities were pioneering new methods of investigation and interrogation. It was a potent combination.
I hope we’re not seeing a new moral panic over prostitution, but the signs are worrisome. Conservative MPs are talking darkly about pimps in schoolyards. The Minister of Justice has started to create a new class of folk devils by calling the customers of prostitutes “perverts.” Think about that. For decades medical and social researchers have tried to expunge unscientific words such as “deviant” and “pervert” from scientific and popular discourse, seemingly with success. Now the highest law officer of the Crown casually labels a large number of people as “perverts” because they have paid for sex.
Bill C-36 proposes fines for the purchase of sex, but how long will it be before mandatory prison sentences are introduced? It is predictable that the new law will fail to eradicate prostitution so that cries will go up for stiffer penalties. And if a prison term is mandatory for possessing six marijuana plants, why not for buying sex? Let’s not go there; let’s not start criminalizing people who seek voluntary transactions based on a fundamental human desire.
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