Legal Models for Sex Work and the Canadian Debate

Few areas of law have been argued over as long as the legal treatment of sex work. Approaches have swung between protection, regulation and punishment, and the same question keeps returning: which framework best protects the people involved?

This overview sets out the long historical backdrop, the four main legal models used around the world, and the way those models have been discussed in Canada.

A long and uneven history

Rules about prostitution date back to antiquity, and historical treatment ranged from toleration and regulation to harsh punishment. Legal standing has improved slowly and unevenly since, and sex workers are still counted among the most heavily stigmatized groups. In some places the penalties remain severe, and in many others the law targets sellers, buyers or both.

The four models

• Criminalization: both buying and selling are offences. This prohibitionist, or abolitionist, approach rests on the idea that prostitution is a crime that an ideal society would eliminate.
• Partial criminalization: Sweden adopted this approach in 1999, making it illegal to buy sex or to profit from it as a third party, while the seller is not penalized. Norway and Iceland later followed, and the approach is often called the Nordic or Swedish model. Supporters frame prostitution as a form of violence against women.
• Legalization: sex work is lawful but tightly regulated through licensing, health testing and zoning. Germany, Austria, Switzerland and the US state of Nevada are commonly cited, and designated red light districts can be part of the picture.
• Decriminalization: criminal penalties for consensual adult sex work are removed, and it is treated more like other work. New Zealand is the best-known national example.

The harm-reduction argument

Harm reduction is a public health approach that tries to lessen the damage linked to risky activity instead of punishing those involved. Researchers using that lens argue that criminal penalties push sex work out of sight. Workers and clients then act in secret, take greater risks and have less room to negotiate terms such as condom use. Canadian research has also linked heavier enforcement to displacement of street-based workers into more dangerous situations. Critics from abolitionist and some feminist viewpoints counter that removing penalties could entrench exploitation, though both camps typically share the aim of reducing violence.

Canada in the debate

For many years, selling sex was not itself illegal in Canada, but related activities such as keeping a brothel, communicating in public for the purpose and living on the proceeds were offences, which made it a partial criminalization system. Court challenges argued that these provisions forced a choice between liberty and security of the person under the Canadian Charter of Rights and Freedoms. After rulings that struck down several of them, Parliament adopted a new framework that targets purchasing and related conduct more than selling. That framework has itself drawn continued argument, and stigma remains a theme in the discussion, since many workers keep their work private.