Monday, June 9, 2014

Criminalizing Strip Clubs? Probably

The Conservative government has brought in new legislation, the "Protection of Communities and Exploited Persons Act", that criminalizes the buying of sex.  This legislation is in response to the Supreme Court of Canada decision in Bedford that declared several sections of the Criminal Code related to prostitution unconstitutional as putting the safety of sex workers at risk.

Obviously the issue of prostitution is contentious.  Whether legalizing, regulating or banning prostitution is the best approach is something reasonable people can differ on.  What’s more the issue does not divide neatly on left-wing and right-wing lines.  Libertarians, generally seen as right-wing tend to favour legalization while some feminists, often seen as leftist, see prostitution as another example of patriarchal oppression and something best banned.

Several commentators have suggested the proposed legislation is on its face unconstitutional in light of Bedford. Be that as it may, there are other difficulties with the legislation.  Specifically, the legislation may well criminalize activity not intended to be criminalized.

Most people do see a difference between going to a strip club and hiring a prostitute.  Strip clubs, while perhaps not the most elevated form of entertainment have long been accepted in Canada.  Some readers may remember the litigation over Pandora’s Box in Ottawa in the early 1970s -- since then strip clubs have been part of the Canadian landscape much like adult video and magazines.  

Unfortunately, and probably unintentionally, strip clubs may well fall under the Protection of Communities and Exploited Persons Act.

The current legislation is overly broadly written and captures activity (probably) not intended to be criminalized.  At the very least clarity in definitions is needed.

The preamble to the proposed legislation says:

"Whereas the Parliament of Canada recognizes the social harm caused by the objectification of the human body and the commodification of sexual activity" 
The objectification of the human body is seen as a social harm to be stopped - and heavy criminal penalties are imposed.

Anyone paying for "sexual services" is guilty of an offence with mandatory minimum sentences.  Such people will have a criminal record and a judge will not have the option of granting a discharge (thus avoiding a record for life).  Additionally the person convicted may be listed as a sex offender. The Act provides: 

286.1 (1) Everyone who, in any place, obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person is guilty of [an offence] 

Note that "sexual services" is not defined.  Based on the preamble's description of objectification of the human body is a harm to be avoided, "sexual services" must be defined broadly. It could, on a simple reading of the legislation, include paying someone to take off their clothes so that the viewer can obtain sexual gratification. Certainly a "lap dance" where a naked stripper sits of the lap of a customer - who has paid for the dance - is caught by the legislation.

Is it likely that charges under the proposed legislation will be laid against someone getting a lap dance at a strip club?  From my own experience if a section in the Criminal Code can be made to apply to activity some police officer somewhere will lay a charge and some Crown somewhere will prosecute.  In fairness, it does seem that the legislation could apply so why would charges not be laid? 

All this confusion can easily be avoided by a simple legislative change defining “sexual services” with more detail.  That may not resolve the larger constitutional issue but it does at least focus the debate on what is really in issue.

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