Université du Québec a Montréal,
September 27-29, 1996

Technical note #IV
Decriminalization you said?

• Criminalization means that provisions are introduced in the Criminal Code to make it illegal to practice prostitution. Although this approach has never been adopted per se in Canada, many conclude that the current Canadian law effectively criminalizes prostitution (see: Shaver, 1985; Gemme, 1993 and 1995).

• "Regulation (or legalization). permits prostitution in certain forms, usually through zoning (confinement in certain areas), or licensing (licensing a limited number of prostitutes to work in certain areas of the city). Regulation views prostitution as a necessary evil if not a social necessity. The aim is not eradication so much as control (...)" (Davis and Shaffer, 1994). Regulation or legalization was the approach recommended by Canada's Fraser Committee (1985); it has been adopted in Australia.

• Abolitionism criminalizes the activities of those seen as exploiting or coercing prostitutes while leaving prostitutes free from regulation under the Criminal Code. This system was endorsed by the U.N. (see below). This view sees prostitutes as victims rather than criminals.

• "Decriminalization is the complete removal of prostitution and prostitution-related offenses from the Criminal Code, including those offenses dealing with the exploitation or coercion of prostitutes. [Prostitution is seen as a private matter between consenting adults. Incidents of abuse in prostitution will then be charged under Criminal Code provisions already in place for such behaviours.] Not practiced by any country to date, this approach seeks to affirm the rightful place of prostitutes in the community by erasing at least the legal distinction between them and the rest of society." (Davis and Shaffer, 1994)

• At the international level, the 1949 United Nations Convention for the Suppression of the Traffic in Persons and the Exploitation of Prostitution of Others, which has yet, been signed by only 61 member states, is often a source of confusion: it was not designed to abolish all forms of state regulation of prostitution, nor was it intended to justify criminalizing approaches. "This approach, often refered to as abolitionism, criminalized the activities of those seen as exploiting or coercing prostitutes (so-called pimping or procuring laws) while leaving prostitutes themselves free from regulation" (Davis S. and M. Shaffer, (1994)

• Worldwide, no jurisdiction has adopted a decriminalization approach. The trend, as made evident in most inquiry commission reports of the last 10 to 15 years, is toward some form of decriminalization. However governments have not followed up on these commission's recommendations, as was the case of the Canadian government's response to the report of the Fraser Committee. Most Western countries have a mixture of criminalization and regulatory/legalization approaches.

  Sources:

  Davis S. and M. Shaffer, (1994) Prostitution in Canada: The Invisible Menace or the Menace of Invisibility?, Vancouver: Sex Workers Alliance of Vancouver.

  Shaver, F.M., (1985) "Prostitution: A Critical Analysis of Three Policy Approaches." Canadian Public Policy, XI (3).

  Reanda, L., (1991) "Prostitution as a Human Rights Question: Problems and Prospects of United Nations Action", Human Rights Quarterly, 13.

  For an apt critique of the U.N. Convention, see Global Alliance Against Traffic in Women, "A Proposal to Replace the Convention for the Suppression in the Traffic of Women and of the Exploitation of Prostitution of Others"