The criminal justice system in Canada is a very complex system, whose features and characteristics are commonly the centre of very heated debates. One very passionate issue in Canada is prostitution and the laws that prohibit it. This subject can be interpreted from many different perspectives. This discussion will briefly review the laws in Canada that prohibit prostitution, followed by an analysis of them from through the lens of liberal feminism, radical feminism and Marxist/socialist feminism.
Canada currently has the criminalization model of prostitution, which is one out of four approaches to prostitution that can be adopted. The criminalization model contends that prostitution is immoral and therefore law should prohibit activities associated with the buying and selling of sexual services. Another model is the Nordic model, which is reflective of radical feminism in the way that it considers women engaged in sex work as victims and so law must criminalize those who purchase sexual services and those whose profit from the sexual labour of others, rather than the sex workers. The legalization model argues that sex work is inevitable and so it should be corporatized, regulated, commodified and taxed. Lastly, there is the decriminalization model, which is reflective of liberal feminism in how it emphasizes the rights of the sex worker and believes that sex work should be a private matter, not a federal matter, between consenting adults (Shaver, 2012). Canada’s Criminal Code currently does not criminalize the specific act of prostitution, but rather many of the acts surrounding prostitution. Acts that fall between sections 210 and 213 of the Criminal Code, such as keeping, running, residing in or directing people to a bawdy house or brothel, impeding traffic in a public place to offer, provide or obtain sexual services, or communicating for the purposes of offering sexual services for consideration in a public place next to a school ground are currently illegal as either summary or indictable offences. These restrictions are intended to discourage the act of prostitution without actually making the act illegal. This topic of laws prohibiting prostitution, or the acts surrounding prostitution, has been a very controversial topic among many groups of people. Liberal feminism, radical feminism, Marxist/socialist feminism and post-feminism are no exception; they all have their point of views on the topic.
Liberal feminism as a whole looks at how rights and freedoms are gendered, especially in the law. It also focuses on two sources of women’s inequality: culture and socialization (Comack, 1999). Liberal feminism contends that culture roles restrict women’s access to power and that unequal gender roles are created, sustained and transmitted through socialization. It then seeks to bring women up to the same level as men and afford them the same rights by de-gendering law through the creation of formal equality. Formal equality is equality that is represented through law; it is a more official and structured version of equality.
Liberal feminism would therefore study laws forbidding prostitution from the point of view that they are negative and only serve to maintain women’s inequality because these laws are gendered in the way that it only negatively affects women; it is only women’s rights and freedoms that are being restricted due to the laws against prostitution. Prostitution is generally a female act and so this law specifically disadvantages women economically, because prostitution is their source of income, and culturally and socially, because making women’s line of work illegal is very stigmatizing. Liberal feminism would ask how socialization, society’s culture and stereotypical gender roles have played a part in the developing and maintaining of these laws that perpetuate women’s inequality. Is it because women have been continuously placed in disadvantaged and submissive positions culturally through the process of socialization, such as their prominent role in the domestic sphere rather than the labour force, that has restricted women’s access to power and the ability to have their voice heard? Therefore allowing the laws that forbid prostitution to be maintained? This perspective would also question whether these laws would still be in place if prostitution was a male activity. Liberal feminists would probably suggest that this restrictive law would not exist in that case because laws are gendered in order to keep women unequal and disadvantaged, not men. Also men, through culture roles and being socialized into more dominant positions and roles in society, have access to power and therefore would most likely not make a male activity illegal. In addition, liberal feminism would ask how we would rid ourselves of this gendered and unequal law in order to bring women up to the same level as men and achieve formal equality. It might suggest decriminalization because this would be a positive step towards the degendering of law. It is through decriminalization that the rights of the female sex worker would be acknowledged, supported and respected, by allowing sex work to remain a private matter between adults, therefore enhancing formal equality in the law (Shaver, 2012).
Turning to radical feminism, this perspective focuses on how women are oppressed through a patriarchal society. Patriarchy exists and thrives due to the overvaluing of the roles of men and the devaluing of reproduction. It does not emphasize equality, as liberal feminism did, but rather separatism due to the essential differences between men and women and the need to achieve radical egalitarianism by creating separate spaces for women. In response to this, radical feminists attempt to empower women through reproductive and sexual freedom, raise the consciousness of men and women and call for a reordering of society in which patriarchy is overthrown by challenging traditional gender roles. In contrast to liberal feminism, radical feminism would therefore study laws forbidding prostitution in a positive light because it views prostitution as a form of oppression. So, this perspective would ask about and look into the ways in which women are specifically oppressed by prostitution. It would most likely consider prostitution to be a tool that is utilized by our patriarchal society in order to reinforce unequal gender roles. It would do so by placing women in degrading and disadvantaged positions, in which their bodies can be bought, sold to and controlled by men, in order to allow society to remain male-centered and male-dominant.
Therefore, radical feminists would see women engaged in sex work as the collateral damage of our patriarchal society; they are the victims of a society that enforces male domination. Radical feminists also contend that prostitution oppresses by devaluing reproduction and encompassing male domination and the subordination of women. This occurs through the enslaving of women’s sexuality and sexual freedom by keeping women’s sexuality bound in coercive chains in which only men have the key. In addition, because prostitution is seen as oppressive, radical feminists would examine how laws against prostitution benefit women and why criminalizing the clients, owners and managers of prostitutes is consequently necessary. This is consistent with the Nordic model of prostitution. Radical feminists would consider laws forbidding prostitution as beneficial because they are a way of protecting women from the oppressive nature of prostitution. Whereas liberal feminism said laws should be de-gendered, radical feminism believes that the gendered nature of the law forbidding prostitution is necessary because men and women are innately different; only women are victims of prostitution, and so gendered laws need to be put in place in order to prevent prostitution from occurring and from oppressing women. And it is because prostitutes are interpreted as victims, that the owners and clients are criminalized rather than them. In addition, since this law will prevent women from falling subject to prostitution, it will therefore allow women to regain their sexual and reproductive freedom which prostitution strips away from them. Criminalizing prostitution is also necessary because it contributes to the empowering of women, which is a step towards overthrowing stereotypical gender roles. Overthrowing gender roles could potentially lead to a re-ordering of society without patriarchy, which is what radical feminism strives for.
Marxist/socialist feminism, on the other hand, analyzes the relationship between patriarchy and capitalism. These interact to form patriarchal capitalism. Patriarchal capitalism encompasses the action of capitalist systems exploiting and manipulating patriarchal relations in order to suit their own interests. This form of feminism also looks at how labour is gendered in the way that housework, childrearing and clerical work is synonymous with women’s work, which can lead to the double burden of women. The double burden of women occurs when women enter the workforce but are still in charge of many domestic duties (Comack, 1999). It also examines how intersectionality can cause women to be doubly oppressed through their gender as well as their positions in class and race (Comack, 1999). And so, this feminism strives to end women’s oppression through achieving justice for all people by making labour free from the binding chains of capitalism and reproduction.
While both radical and liberal feminism take a micro approach to their stance on laws forbidding prostitution, Marxist/socialist feminism differs by taking a macro approach in its study of the elements of this law. It looks at the bigger picture and questions how broad systems such as capitalism play a role in how prostitution is oppressive to women. This perspective argues that prostitutes may feel as though they are acting upon free will and that it is their choice to engage in prostitution, but a Marxist/socialist feminist would claim that that is not true. Instead, they are acting under a false consciousness, in which they are unaware of their oppressed nature and their role in the capitalist system. The reality is that there are bigger and broader factors in play. Capitalism works to oppress the lower classes and, with its exploitation of patriarchy, maintain the oppression of women, in order to sustain the capitalist system that relies on a consistent labour force to fuel the mode of production. Prostitutes are then victims of this corrupt system, in which women, who are disadvantaged now by both their gender and class, are forced into prostitution and into reproductive labour due to their restricted position in society. Therefore prostitutes, who do not act in free will, represent the enslavement of the labour force in a capitalist society. Sex workers are ultimately gears in the wheels of an exploitive capitalist system; they work unknowingly to support a system that in turn maintains and benefits from the sex workers’ oppressive state. As long as women define themselves by their sexuality and reproductive nature, they will continue to be oppressed economically by capitalist systems due to those systems’ support of patriarchy. This perspective then aims to end the sources of that oppression by striving to make labour free from the binding grip of capitalism and reproduction. However, since prostitution is a result of the major systems and organization of a society, Marxist/socialist feminists would ultimately question whether a law forbidding prostitution would be enough to entirely rid society of prostitution. Instead, it would probably recommend that society completely abolish its capitalist system, that exudes patriarchy from every orifice, through a restructuring and reordering of society’s major systems and structures. It is only then that labour will be free from capitalism and reproduction, which will allow prostitution be completely eliminated.
In conclusion, laws forbidding prostitution can be looked at in a variety of lights. Liberal feminism would see these laws as negative and that they only maintain women’s inequality. Radical feminism would look at them in a positive light because it views prostitution as a form of oppression. Marxist/socialist feminism would question whether a law forbidding prostitution would be enough to rid society of prostitution, which it seeks to do, due to its oppressive nature. Canada has swayed back and forth between perspectives, especially following the Bedford case of 2013. Given these multitude of perspectives that are constantly changing and evolving and because these views structure laws in a democracy, the laws surrounding prostitution will most likely continue to change and evolve as people’s viewpoints do the same.
Sheehy, Elizabeth (n.d.) ‘Legal responses to violence against women in Canada.’
Comack, E. (1999). Theoretical Excursions: Traditional Approaches in Sociology of Law. In Locating Law: Race, class, gender connections. Fernwood Publishing. Halifax. Pp. 44-54.
Shaver, Fran (2012) Sex work and the law. A critical analysis of four policy approaches to adult prostitution. P. 190-216.