Letter to a nascent abolitionist law student

Monday, April 16, 2012

Dear Amanda,*

Thanks for coming to my talk on the Ontario Court of Appeal’s decision in Bedford. After the talk, in those rushed moments as we were vacating the room, you said this to me (I’m putting it in quotes, but I’m actually paraphrasing a bit): “I agree with everything you are saying about ending men’s demand for prostitution, but I have trouble speaking out against those who want to totally decriminalize it. I am frustrated that I don’t have a pithy response to their claims about women choosing prostitution. Can you help me?” At the time, I offered you a few suggestions. But since yours is the question I get more than any other, I thought I would try a written response. I think you really have to unpack the assumptions underlying this question for yourself to feel confident answering it. Here is what I have learned.

Choice is not a factor that on its own supports decriminalization of anything, prostitution included. The claim that someone chooses to do something is not a reason to decriminalize it. Generally speaking, bank robbers choose to rob banks and con men choose to bilk investors, and we don’t see that as a reason to decriminalize robbery and fraud. Quite the opposite, in fact. Claims that women choose prostitution in large numbers actually provide support to the constitutionality of legal regimes that would criminalize women (alone, or along with their male buyers.)Here is why: Canadian constitutional law is pretty clear that the earning of income through a particular commercial activity is not constitutionally protected. The Ontario Court of Appeal unanimously confirmed that again in Bedford. If that is all prostitution is, a chosen method of earning income, then the s. 7 claims about security of the person disappear if prostitution is criminalized outright. The claimants can simply be told that prostitution is illegal and they should choose something else. In fact, the government could choose to criminalize only the prostitute and not her customer, as is the case in many countries, and there would be no s. 7 argument. This is the difference between an argument based on choice and one based on inequality, which differentiates between women and the men who prostitute them. That observation brings me to my second point:

Choice is not the same thing as equality, nor does it equate to the absence of harm. I am guessing that those who rely on choice as a sort of trump card mean to suggest that prostitution is somehow harmless or natural or beneficial if the woman“chooses” it (based on some definition of choice that is seldom identified with precision, beyond an age of consent.) Or maybe they mean the fact that she remains in prostitution means she has decided the benefits outweigh the costs, and we ought to leave it at that. (This argument of course, presupposes that she has real supports available to exit. That support is virtually absent in Canada, even in big cities, and is generally left to overburdened transition houses.)We do not have to valorize the choice of a wife to stay with her abusive husband or the choice of a woman to become a fifteenth celestial wife, however carefully calculated by her,in order to stand in solidarity with her as a woman deserving of substantive equality. We can recognize the ways in which her life is socially situated without labeling her in any particular way, or denying anything about her as a human being.We can call the choices facing her unfair. In what other area of public policy do we make law by interrogating each woman’s personal and sexual history to decide if she was asking for it? Oh wait, we did that with rape law and it wasn’t to women’s advantage there, either.

Men choose to buy women in prostitution and this is the choice that deserves scrutiny.This cannot be said often enough. Refuse to engage further in discussions about choice until the choosers agree to talk about the men first. Men make that choice to buy women in prostitution. Legalization fuels normalization, and so does the ideal of the choosing woman, who is thought to make tons of money which she apparently spends equally on luxury condos and higher education.Remember that women in prostitution are paid to say they like it, and I mean that literally. In reality, the supply of prostitutes is constructed to meet the male demand. If not enough Canadian women “choose” prostitution, they are trafficked from other countries where poverty is more acute. Prostitution chooses women because men choose prostitution. When a woman says she took the boss’ offer to sleep with him as a way to get ahead, I don’t worry about whether her choice was “real.” I label his choice sexual harassment and recognize that his actions contribute to the inequality of all women. I support laws that target his behaviour, not hers.

Go on the offensive.
The people who make this argument rarely have to explain it. Are they saying that most women in prostitution “choose” it? If not, why would we make law and policy for this minority, who have other options? How do they define “choice”? When does this choice occur? Is it continuous? How will they evaluate it? Why is choice, based on their definition, the relevant factor, rather than inequality? Do they understand that individual choice is a classically liberal paradigm? How do they respond to anti-oppression criticisms of that liberal paradigm, or its use to further neo-liberalism? In other words, put them on the defensive rather than letting them lob half-baked clichés at you.If you get this far, in my experience they will become uncomfortable and start talking about “harm reduction.” Point out that demand reduction is harm reduction and ask if they’ll commit to that with you.

Maybe, Amanda, you just wanted a one-liner you could use and walk away. I’m not so good at one-liners (or walking away), but depending on your audience, here goes: “I find your invocation of choice very neo-liberal” or “I think your use of choice opens the door to punishing women – I reject that trap.” or maybe “Anti-discrimination laws aren’t based on the liberal idea of individual choice – they’re meant to resist it. I’m shocked you’re repudiating that.” Whatever you say, don’t be embarrassed or apologetic or cowed. You have a voice. And so long as I have breath in my body, I’ll be there, right next to you.

*The student’s name has been changed to protect anonymity.

Janine Benedet is a Professor at the University of British Columbia Faculty of Law.
Designed by Rachel Gold.