Grégoire Webber: On the ‘lawful’ premise and prostitution

gregoi7‘It is not a crime in Canada to sell sex for money.’ This factual assertion opens the unanimous judgment of the Supreme Court of Canada in Bedford v Attorney General, 2013 SCC 72. It is the first and a repeated premise leading to the judgment’s conclusions: the criminal prohibitions on keeping a bawdy-house, living on the avails of prostitution, and communicating in public with respect to a proposed act of prostitution are unconstitutional for violating the rights to life and security of the person. This post evaluates the factual premise that prostitution is a lawful activity and, more generally, the significance of liberties in the law.

The Supreme Court places much significance on the liberty in law to sell sex for money. Here is a sample:

[59] “Here, the applicants argue that the prohibitions on bawdy-houses, living on the avails of prostitution, and communicating in public for the purposes of prostitution, heighten the risks they face in prostitution — itself a legal activity.”

[60] “The prohibitions at issue do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky — but legal — activity from taking steps to protect themselves from the risks.”

[61] “It is not an offence to sell sex for money.”

[62] “Working on the street is also permitted, though the practice of street prostitution is significantly limited by the prohibition on communicating in public.”

[87] “… even accepting that there are those who freely choose to engage in prostitution, it must be remembered that prostitution — the exchange of sex for money — is not illegal.”

[89] “The impugned laws deprive people engaged in a risky, but legal, activity of the means to protect themselves against those risks.”

The judgment’s repeated assertion that there is a legal liberty to sell sex for money draws on the unstated premise that there is a moral quality to this liberty or to all liberties in the law, such that that which is not criminally prohibited is therefore just, choice-worthy, and not to be discouraged by government or law. The unsound character of this reasoning is evident from an examination of some fundamental juridical categories.

A ‘liberty to’ is the opposite of a ‘duty not to’. That it is not a crime to sell sex for money is equivalent to the absence of a criminal duty not to sell sex for money. The absence of a criminal duty need not imply the absence of another (non-criminal) legal duty: for example, my criminal liberty to break my contract with you does not imply my legal-contractual liberty to do so. More fundamentally, the absence of any legal duty need not imply the absence of a moral duty; equivalently stated, the presence of a liberty in law need not imply the presence of a liberty in morality.

Consider how foreign the Court’s repeated emphasis on the criminal liberty to sell sex sounds when other legal liberties are substituted for it:

The applicants argue that the prohibition on assault heightens the risks they face in bullying – itself a legal activity.

Adultery is a risky – but legal – activity.

It is not an offence to lie to one’s friends.

In each of these cases, the legal liberty to engage in the activity confronts a moral duty not to. It is a moral wrong to bully another, to commit adultery, to lie to one’s friends, a wrong in no way camouflaged by the absence of a legal duty not to do so.

Of course, many legal liberties track moral liberties, among them: the liberty to contract (itself bounded by legal and moral duties not to contract with certain persons and over certain matters); the liberty to express oneself (itself bounded by legal and moral duties not to defame, to libel, falsely to shout fire in a crowded theatre, . . .); and the liberties to assemble peacefully, to associate, to practice one’s religion or none at all, to follow one’s conscience, to . . . (all bounded by . . .).

The mere presence of a liberty in the law does not conclude the question whether there is a liberty in morality. And yet, the Supreme Court of Canada’s regular reference to the legal liberty to sell sex is intended to convey that it equated the absence of a legal duty not to sell sex with the absence of a moral duty not to do so, and, therefore, the absence of any ground to discourage the sale of sex.

This resulted in a misguided characterisation of the relationship between the criminal liberty to exchange sex for money and the criminal duties not to keep a bawdy-house, to live on the avails of prostitution, or to communicate in public with respect to a proposed act of prostitution. The Court reasoned that the criminal duties rendered the ‘lawful activity [of prostitution] more dangerous’, drawing the following ‘analogy’:

[87] “An analogy could be drawn to a law preventing a cyclist from wearing a helmet. That the cyclist chooses to ride her bike does not diminish the causal role of the law in making that activity riskier. The challenged laws relating to prostitution are no different.”

The Court’s analogy is telling. One has both a legal and a moral liberty to ride one’s bike (as bounded by duties not to do so on another’s property, on the motorway, etc). The assumed persuasiveness of this analogy rests on the Court’s unstated and undefended premise that one also has a moral liberty to sell sex for money. Absent that premise, the analogy can do no work, just as it would do no work if appealed to in support of the legal liberties to bully, to commit adultery, and to lie to one’s friends.

How then to characterise the relationship between the criminal liberty and criminal duties? The Attorneys General of Canada and of Ontario argued that the criminal duties were to be understood as seeking to deter prostitution (para. 131). The Court dismissed the argument, affirming that the record established that ‘the [only] purpose of the prohibition[s] is to prevent community harms’, with ‘community harms’ to be understood as excluding any harms inherent to the sale of sex for money (para. 131; see also paras. 132, 137-138, and 146-147). This misunderstanding was directed by the Court’s unwillingness to divorce a legal liberty from a moral liberty.

Consider this alternative characterisation of the relationship between the criminal duties surrounding prostitution and the criminal liberty to sell sex for money.[1]  Prostitution is a moral wrong. It is harmful both to the prostitute and to the other engaging in the contracted sexual activity. One has a moral duty both not to sell and not to purchase sex. To do so is inimical to the community’s common good and a violation of equality and dignity. Prostitution is, therefore, an act worthy of legal prohibition. However, the act is also deeply personal and if truly private not one that the law should seek to regulate directly if undertaken between adult persons. Rather, the law should frustrate prostitution by indirect means, chief among them: prohibiting keeping a bawdy-house, living on the avails of prostitution, and communicating in public with respect to a proposed act of prostitution. Such prohibitions of relatively public acts pursuant to prostitution are not to be analogised to the reckless or purposeless regulation of a moral liberty (as would be the prohibition against wearing a helmet when riding a bicycle); their objective is to frustrate with a view to eliminating a deeply private, but immoral activity that wrongs the prostitute, the client, and the community. In doing so, the legislature can be taken to have acted on the view that failure to intervene to frustrate prostitution would be an injustice against those persons for whom it is responsible, persons including the seller and the purchaser of sex.

It may be that these prohibitions are to be abandoned in favour of an alternative approach to the wrong of prostitution. I take no position on that question, except to say this: it is a question not best approached by assuming that the criminal liberty to sell sex for money implies a moral liberty to do so.

Grégoire Webber is Associate Professor of Law at the London School of Economics.

[1] This paragraph is indebted in part to Bradley Miller ‘Proportionality’s Blind Spot: “Neutrality” and Political Philosophy’ in Huscroft, Miller, and Webber (eds) Proportionality and the Rule of Law (Cambridge, 2014) 382-383.

5 Comments

Filed under Canada, Comparative law, Human rights, Judicial review, Uncategorized

5 responses to “Grégoire Webber: On the ‘lawful’ premise and prostitution

  1. Mikey

    Dear Grégoire,

    Rather than comparing things from a moral standpoint, why not compare things from a legal standpoint? It is not illegal to sell sex; it is illegal to sell crack cocaine.

    What would it look like if we imposed these restrictions on crack dealers to make it more difficult to operate in their market? One could imagine criminal prohibitions on keeping a crack-house, living on the avails of crack dealing and communication in public with respect to a proposed act of crack dealing. Would these seem reasonable restrictions? I think most people would say yes, because being a crack dealer is illegal.

    Then we need to look at the constitutional rights being discussed. For example, the constitutional right to security of person, combines a liberty and a claim-right in Hohfeldian terms.

    The liberty to be secure in your person, and a claim-right, as against the State, that the State should not (unreasonably) interfere with said liberty to be secure in your person.

    The argument ran that these restrictions made being a prostitute more dangerous and this was unreasonable interference with their liberty to be secure in their person. For example, if a restriction against “keeping a bawdy house” was forcing prostitutes to work alone in a flat not in pairs, (as it does in the UK) they might be exposed to an increased risk of violence. This risk would be decreased with two independent prostitutes working in a flat since the other could call the police if there were any trouble, for example, or might simply deter a client acting out as they know they’re not alone.

    The AG admits that these restrictions were designed to deter people from prostitution by making it more difficult for people to work. The consequence of these restrictions, as was noted by the Court, was that they also make the work more dangerous. Not that they deterred sex workers. That they made the work they were legally performing more dangerous.

    A Green campaigner might think it was morally wrong for someone to work on a fracking site, causing potential damage to the land. People are legally allowed to work on authorised fracking sites. Would be it reasonable for a Green politician to propose legislation that would make it more dangerous to work on a fracking site because he believes it is morally wrong? No…

    A anti-abortionist might think it was morally wrong for someone to work in an abortion clinic, causing the deaths of babies. People are legally allowed to work in regulated abortion clinics. Would it be reasonable for an anti-abortionist politician to propose legislation that would make it more dangerous to work at an abortion clinic because she believes it is morally wrong? Again, no.

    The dangers that the Court highlights are not simply a danger inherent to selling sex – a massage therapist or hairdresser who sees clients in their home alone would run similar risks. As the judges concede, sex work is risky, but it is not risky simply because it involves sex – it is risky because whenever someone is alone with someone they do not know in a confined area there is a risk.

    Going back to our friendly neighbourhood crack dealer. He might also argue that similar restrictions interfere with his right to be secure in his person because such restrictions make being a crack dealer more dangerous. But because the act of being a crack dealer is in itself criminally prohibited, the State could be justified in placing such restrictions, even if they make being a crack dealer more dangerous, because you are not allowed to be a crack dealer.

    If you have the right that the State not unreasonably interfere with your liberty to be secure in your person, then the real question comes down to whether you feel that these restrictions unreasonably interfered with this person’s liberty to be secure in their person.

    The court found that if a restriction makes the performance of a legal action more dangerous to the performer’s personal security than it needs to be then it is an unreasonable interference.

    You argue that if a restriction makes the performance of a legal (but immoral) action more dangerous to the performer’s personal security than it needs to be then it is not an unreasonable interference if it is designed to deter immorality.

    You suggest that adultery is a similar legal but immoral action. If the State enacted restrictions on adultery that made performing the action more dangerous than it needs to be, would that not be an unreasonable interference if it were designed to deter immorality

    Imagine that a married woman has been speaking to another man online. She decides that she would like to commit adultery and, while her husband is away, invites the man to her house with a view to having sex. This is a situation not without risk – perhaps he is a murderer, or not inclined to take no for an answer. Imagine then there was a restriction designed to deter the immorality of adultery, that criminalised not the commission of adultery but those who facilitate adultery. If the woman invited a trusted confidante around to make sure the man seemed nice/normal/not a murderer and the confidante was criminalised for facilitating adultery this would mean that the woman would have to meet the man alone increasing the risk to her personal security. Or if the makers of a website that put married people in touch with people other than their spouses to facilitate sexual encounters were criminalised, would this not seem like an unreasonable invasion into the private lives of all concerned. It’s unreasonable because these acts are legal, whether or not you feel they are immoral or not.

    The difference between the situation of the married woman inviting the mystery online man round and a prostitute is that the prostitute normally isn’t married and the man is paying. So surely it’s less immoral when it’s not adultery? Does it become more immoral because the man is paying? The adultery is immoral because it violates the trust of a marriage, not because it’s sex. Consensual sex is at worst morally neutral, surely? The act of paying for a service is probably on balance morally good, particularly when a contractual relationship exists. Certainly it would be morally bad to NOT pay when payment is owed.

    What you seem to be upset about is that the court might disagree with your fundamental premisses: “Prostitution is a moral wrong. It is harmful both to the prostitute and to the other engaging in the contracted sexual activity. One has a moral duty both not to sell and not to purchase sex. To do so is inimical to the community’s common good and a violation of equality and dignity”.

    You simply assert these highly subjective opinions and expect to overcome the fact that these restrictions made a legal act more dangerous than it needs to be. Legality (the crack dealer) is an important factor in deciding whether a restriction that interferes with personal security is unreasonable and purported immorality (the adulteress) is not an important factor. It then becomes all too clear why the court made this decision.

    If sex work is legal, then why would we not want to make it as safe as possible?

    Oh and it is much clearer and simpler to say that the “opposite” of a liberty is a duty. If you have a liberty (not) to perform an action then you are under no duty, positive or negative and someone does not have a claim-right to legally compel you to do it or refrain from it. A ‘duty not to’ is the contrapositive of a duty.

    So a criminal prohibition in Hohfeldian terms looks like:

    The State has a right, as against the Citizen, that the Citizen refrain from performing a certain action.

    Correlative: the Citizen has a duty, as against the State, to refrain from performing a certain action.

    The contrapositive would be that:

    The Citizen has no duty, as against the State, to refrain from performing a certain action.

    Correlative: the State has no right, as against the Citizen, that the Citizen should refrain from performing a certain action.

    That whole section did little more than confirm Hume’s guillotine, reminding us not to make an ought from an is. Simply because something is legal, it is not by implication moral. But simply because something is illegal, it is not by implication always immoral either.

    However, the correlative of a liberty is a no-right and if the State has no right to stop someone performing a certain action, then restrictions attempting to stop them indirectly, that interfere with their right to be secure in their persons, seem unreasonable.

  2. Could you explain, that is, if I understood you correctly, why you hold that a moral liberty to sell sex for money is absent?

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  4. Gisele

    I would think that one has a moral liberty to have sex, not to sell it. Sex workers speak of getting over self-revulsion at responding sexually with a client as though it is a skill to prevent oneself from responding to sexual stimulus. The client is having sex, the worker is not. The worker is there to ape sexual enjoyment no matter how much they hate what is happening to them even if it is painful.

    This is not a situation where two people are having sex and one happens to leave money on the bureau.

    . In other points in the judgement the SCC recognizes that pimps and johns cause the harm and that the consent of street prostitutes is constrained not free. No one considers exit services for massage therapists and private hairdressers.

    I am not a lawyer or even a law student, but does one have a moral/legal right to sell any product or service?

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