The Best Man to Fight Child Prostitution: International Law, Canadian Law Or Decriminalization?

The Best Man to Fight Child Prostitution: International Law, Canadian Law or Decriminalization?

Ji-Eun Kim (45670072)

Table of Content

1. Introduction

2. Research direction

3. International Law Review

4. Canadian Law Review

5. Prostitution and Child Rights Laws in Canada – Living up to International Obligation?

6. Major Challenges to Fight Child Prostitution

7. Decriminalization – Child Abuser or Child Protector?: Empirical Cases

8. Research Ahead

1. Introduction

Ontario Superior Court’s recent ruling that struck down key parts of Canada’s prostitution law has again sparked country’s heated debate on the decriminalization of prostitution. Unlike many other human activities, the international community has no consensus on the domestic legal status of prostitution – At one end of the spectrum, there are countries like New Zealand and the Netherlands, where prostitution is legal and regulated. At the other end are the most parts of the US where prostitution is illegal. Then, in the center, there is a country like Canada, where buying and selling sex are legal, but brothels and street solicitation are illegal.1

While sex-work advocates in Canada praised that the ruling would set up legal grounds to protect the safety and security of sex workers, the opponents of decriminalization assailed the ruling as potentially stabilizing the sex industry and encouraging the sexual exploitation of women as well as children. Although Justice Susan Himel, the judge of this ruling, stressed that other provisions on

1 Lowman, John, “Deadly Inertia: A History of Constitutional Challenges to Canada’s Criminal Code Sections on Prostitution,” 2009: p.3 prostitution can still be used to restrain child prostitution, the impacts of the possible legalization of adult prostitution on underage prostitutes have not been discussed extensively.

Child prostitution, despite of widespread recognition of its unacceptability, continues to be a pressing concern for the domestic legislature and policy makers. In addition, in contrast to the popular image of underage prostitutes as passive victims of sexual abuse or trafficking, “voluntary” child prostitutes add a complex dimension to the issue – in particular, with the recent development and increasing accessibility of the Internet, there have been incidents where child prostitutes advertise themselves online. Cases like this certainly make it harder to grasp the impact of the decriminalization of adult prostitution on current or future underage prostitutes.

Thus, my essay aims to answer the following key question:

1) What are the international law and norms on adult prostitution and child rights? Are there any apparent or potential contradictions between the two?

2) Are the international standards implemented in Canadian law?

3) What are the potential impacts of decriminalization of adult prostitution on child rights protection?

4) Does the decriminalization have any implications on “voluntary” child prostitution?

2. Research Direction

a. Review the international law related to prostitution and child rights

b. Review the Canadian federal legislations of adult and child prostitution, focusing on whether the Canadian government lives up to its obligations to the international laws

c. Identify the major challenges to fight child prostitution under the current legal status and predict the impacts of decriminalization on them

3. International Law Review

Adult Prostitution Child Rights • The UN Convention for the Suppression of • The UN Convention on the Rights of the Traffic in Persons and Exploitation of the Child (1989) Prostitution of Others (1949) o Art 1: a child = below 18, unless the o Broad recognition of the issue of law applicable to the child has prostitution as a human rights earlier majority concern at the international level o Art 34: “protect the child from all o Art 1: criminalize anyone who forms of sexual exploitation and procures/exploits the prostitution, sexual abuse. For these purposes, even with the consent of that person State Parties shall in particular take o Art 16: to take/encourage measures all appropriate national, bilateral for the prevention of prostitution and multilateral measures to and for the rehabilitation and social prevent” the child from being forced adjustment of the victims of into unlawful sexual activity and prostitution from being exploited through o All forms of prostitution were prostitution. condemned o Not aimed directly at children o Canada never ratified, since involved in prostitution prostitution was, and still is, legal o Attempt to protect them from sexual abuse through inducement, • The UN Convention on the Elimination of All coercion and exploitation Forms of Discrimination against Women o Canada ratified in 1991 (1979) o Art 6: “States Parties shall take all • The Prohibition and Immediate Action for appropriate measures, including the Elimination of the Worst Forms of Child legislation, to suppress all forms of Labour (Jun, 1999) traffic in women and exploitation of o Art 2: a child = under the age of 18 prostitution of women” o Art 1 &3(b): To take measures to o The exploitation of prostitution was eliminate the worst forms of child condemned, rather than prostitution labour, including the use, itself procurement, and offering of o Canada ratified in Jan 1982 children for prostitution o Child prostitution, whether • Declaration on the Elimination of Violence voluntary or not, was established as against Women (1993) a fundamental violation of o Art 2: Violence against women shall international law be understood to encompass … o Target the individual who used, forced prostitution procured or offered the child, rather than the child • The Beijing Declaration and Platform for o Canada ratified in June 2000 Action, the Fourth World Conference on Women (1995) • Optional Protocol to the Convention on the o Highlighted that forced prostitution Rights of the Child on the Sale of Children, is a form of violence against women Child Prostitution and Child Pornography o Omitted the condemnation of (2000) voluntary prostitution from 1949 o Explicitly outlaws any form of child Convention prostitution while again targeting, rather than the child, the people • Optional Protocol to the Convention on the perpetrating the prostitution Elimination of Discrimination against Women o Canada ratified in Sep 2005 (Oct, 1999) o Recognize the competence of the Committee on the Elimination of Discrimination against Women (a panel of 23 independent experts that meets 3 times a year) to receive complaints from persons within their jurisdiction alleging violations of their right under the Convention

a) Highlights

 “Liberalized” international law and norms on adult prostitution

o The Post-war document condemned all forms of prostitution, “even with the consent of that person”

o The subsequent documents increasingly recognized the individual choice in adult prostitution by focusing on the exploitation of women through trafficking and forced prostitution

 “Rigid” international law and norms on child prostitution

o All forms of child prostitution has continued to be condemned

o Children involved in prostitution are recognized as victims, even with their consent

4. Canadian Law Review

a. The evolution of Canadian prostitution law

In Canada, prostitution-related concerns are dealt primarily within the Criminal Code, which is under federal jurisdiction. With the exception of street prostitution, Canada’s first prostitution laws that were imported with British common law in 1915 still remain in effect today. In essence, while the acts of buying and selling sex services are legal, other activities surrounding prostitution are illegal.

Under the current Criminal Code, the following acts related to prostitution are outlawed:

Highlights Bawdy House  s.210: Owning, keeping, being an inmate/landlord of, or being found in a “common bawdy house,” which means “a place that is kept/occupied or resorted to by one or more persons for the purpose of prostitution or the practice of acts of indecency (s.197(1))  s.211: Knowingly transporting a person to a bawdy house Procuring  s.212(1): aiding, abetting, controlling or living on the avails of the prostitution of another person  s.212(2): living on the avails of prostitution of a minor (under the age of eighteen) is subject to heavier punishment with a minimum term of two year imprisonment Public  s.213: communicating in a public place for the purpose of buying or Solicitation selling sexual services Prostitution  s.7(4.1): committing sexual offences against minors outside Canada Abroad

Note that street prostitution has gone through a series of changes as following:

 Prior to 1972: street prostitution was defined as vagrancy, a summary offence

 1972: “Soliciting law” was enacted; “Every person who solicits a person in a public place for the purpose of prostitution is guilty of an offence punishable on summary conviction” (Criminal Code s.195.1)

 1978: the Supreme Court of Canada’s ruling that “soliciting” entailed “pressing and persistent” or “importuning” conduct.

 1985: “communicating law” (s.213) replaced “soliciting law”; for the first time, the act of buying was explicitly charged with street prostitution offence, which outlawed any communication in public for the purpose of engaging in prostitution.

b. Child Prostitution

b.i. The Criminal Code has evolved to provide extra protections for persons less than 18 years old. The following acts related to the exploitation of minors became prohibited:

b.i.1. 1986: buying or offering to buy sexual services from children between 14 and 17

b.i.2. 1987: living on the avails of a person under 18

b.i.3. 1997: “aggravated” living on the avails of a person under 18, child sex tourism b.ii. Child-specific sexual offences protect children from forced prostitution or sexual exploitation

b.ii.1. Sexual inference (s.151) - *no one can touch any part of the body of a child under the age of 16 for a sexual purpose

b.ii.2. Invitation to Sexual Touching (s.152)

b.ii.3. Sexual Exploitation (s. 153)

b.ii.4. Luring a Child (s.172) -*no person may use a computer system, such as the Internet, to communicate with a minor for the purpose of facilitating the commission of a sexual offence.

b.ii.5. Procuring (s. 170, 171, 212(2), 212(2.1) and 212(4)

b.ii.6. Child Sex Tourism (s. 7)

b.iii. “Age of consent”2

b.iii.1. The age of consent for sexual activity is 16 years, which was raised from 14 years in 2008 by the Tackling Violent Crime Act

b.iii.2. However, the age of consent is 18 years where the sexual activity “exploits” the young person

b.iii.3. Sexual activity is considered exploitative based on the nature and circumstances of the relationship – this may create a gray area

b.iv. Criticism to the age of consent law

b.iv.1. Despite an increase in the age of consent from 14 to 16, the law is ineffective in protecting children younger than 13, who are the most vulnerable to sexual exploitation by adults3

5. Prostitution and Child Rights Laws in Canada – Living up to International Obligation?

a. Adult prostitution – As the international community has come to acknowledge the victimization of prostitutes and condemn the exploitation of prostitution rather than

2 “Age of Consent to Sexual Activity,” Department of Justice Canada, http://www.justice.gc.ca/eng/dept- min/clp/faq.html

3 Saewyc, Elizabeth, Canadian Journal of Human Sexuality, 2010 prostitution itself, Canadian law has increasingly focused on the criminalization of persons who procure or exploit prostitution.

b. Protecting children in/from prostitution – The Criminal Code severely penalizes persons who procure, solicit or take a part in any form of prostitution involving a minor. It has taken an extra step to criminalize Canadians committing sexual offense outside Canada, although such legislation is not required under international law. However, while the international law prohibits both voluntary and non-voluntary sexual activity between an adult and a minor, Canada’s age of consent law could possibly create a gray area – especially when there may be some tricky cases that cannot be easily proven to be exploitative. For example, if a 17-year-old girl has consensual sexual relationship with an adult, one could only prove this relationship is exploitative on the basis of “the nature and circumstances of the relationship,” which leaves a room for controversial debates.

6. Major Challenges to Fight Child Prostitution

a. The invisibility of underage prostitutes

a.i. Only a small percentage of child prostitution involves street solicitation, and the rest is usually operated through the phone, escort service, massage parlours and the internet.4

a.ii. The absence of reliable, up-to-date statistics about child prostitution

b. Lack of long-term family and community support

b.i. In Canada, as elsewhere, most sex workers enter prostitution as adolescents5

b.ii. Children who enter prostitution are typically victims of abusive treatment by caregivers or dangerous home environments.

b.iii. With limited education and work experience, they are likely to go back to prostitution for survival even after being rescued

4 Thomson, David, “Commercial Sexual Exploitation of Children in Canada,” Beyond Borders INC, p.2

5 Farley, Melissa et al, “Prostitution in Vancouver: Biolence and the Colonization of First Nations Women,” Transcultural Psychiatry, 42, 2005: p. 243 7. Decriminalization – Child Abuser or Child Protector?: Empirical Cases

a. Solely looking at child prostitution – a strong correlation between decriminalization of prostitution and increase in child prostitution but difficult to conclude the causal relationship

b. Netherlands: underage prostitutes increased from 4000 in 1996 to 15,000 in 20016

b.i. Problem: Netherlands legalized brothels in 2000

c. Victoria, Australia: “In a 1998 study undertaken by ECPAT (End Child Prostitution and Trafficking) who conducted research for the Australian National Inquiry on Child Prostitution, there was increased evidence of organized commercial exploitation of children”7

d. New Zealand: “According to the New Zealand decriminalized prostitution law, the police have no right of entry into brothels, and have no right to ask for age-identification papers of those in prostitution – thus investigation of suspected youth prostitution is extremely difficult, according to police officers, who asked that the law be revised”8

8. Research Ahead

a. Can we apply the empirical cases above to the Canadian context?

b. Linking with Hannah van Voorthuysen’s research – what kind of roles can sex-worker’s co-op play in protecting rights of underage prostitutes or preventing child prostitution? Any challenges?

6 Julie Bindel et al, “Critical Examination of Responses to Prostitution in Four Countries: Victoria, Australia; Ireland; the Netherlands; and Sweden,” London Metropolis University, 2003: 16 http://www.glasgow.gov.uk/NR/rdonlyres/C19E010B-1A4F-4918-97BD-F96AF7D7F150/0/mainreport.pdf

7 Janice Raymond, “10 Reasons for Not Legalizing Prostitution,” Coalition Against Trafficking in Women International, March 25 2003, http://www.prostitutionresearch.com/laws/000022.html

8 Melissa Farley, “Myths and Facts about Trafficking for Legal and Illegal Prostitution,” Prostitution Research and Education, 2009, http://www.prostitutionresearch.com/c-prostitution-facts.html