One year ago, Canada's Senate passed Bill C-36, the Protection of Communities and Exploited Persons Act. Bill C-36 is the Harper government's response to the Supreme Court of Canada's Bedford decision of 2013. Terri-Jean Bedford, a selfdescribed sex-worker, had challenged Canada's previously existing legislation as unconstitutional. Her claim was that the legislation, which criminalized prostitution, violated her Charter rights. The Supreme Court supported Bedford's claim and gave the government a year to come up with new legislation. Bill C-36 was the result.
It is no small feat to determine whether this bill is an unqualified good thing, and well-nigh impossible to simply slot supporters and defenders of the bill into readily identifiable positions on the political spectrum. Beyond the typical partisan political response indicated by criticism of the bill on the part of Trudeau and Mulcair, there are anti-trafficking and anti-prostitution groups opposed to the bill, and anti-trafficking and anti-prostitution groups in favour; feminist and various other left-leaning organizations opposed, and others in favour. What accounts for this confusing array of responses?
Bill C-36, it has been said, closely resembles the socalled Nordic model for prostitution spearheaded by Sweden in 1999 and now effectively implemented in Norway (2008), Iceland (2009) and Northern Ireland (2014), and under consideration in Ireland, the United Kingdom and elsewhere. The Nordic approach criminalizes the purchasing but not the selling of sexual services on the grounds that the (mostly) women who are prostitutes are victims of sexual exploitation. The European Union endorsed the model in February 2014, and soon after, the Council of Europe urged its member and observer states (including Canada) to join the global fight against human trafficking by taking the Nordic approach to the question of prostitution. Given the expanding body of evidence that demonstrates the link between human trafficking and the decriminalization of prostitution (decriminalization increases demand, and profiteers responding to the increase in demand frequently resort to trafficking in persons in order to meet it), this approach is quite clearly a sound policy initiative.
Debates in Sweden surrounding its historic legislation criminalizing the purchasers and not the sellers of sex revolved around the idea that prostitution is a form of violence against women, a social effect of male dominance, a vestige of patriarchy, and therefore incompatible with any society as vigorously committed to gender equality as Sweden is. Canada's Bill C-36 takes a similar approach, pointing out that since women and girls comprise the majority of those who sell their own sexual services, prostitution is a gendered practice that reinforces gender inequalities in Canadian society at large "by normalizing the treatment of primarily women's bodies as commodities to be bought and sold."
So with Bill C-36, Canada joins a growing number of countries that see prostitution as a form of exploitation and that are committed to diminishing its harmful effects; and, as with the Nordic approach, the legislation attempts to target those who create a demand for prostitution and third parties who profit from the demand. The preamble to the legislation proposes that those who sell sexual services are victims of unjust social and economic structures who can't be considered to be choosing a life of prostitution in anything like an unconstrained fashion. A host of socio-economic factors such as poverty, drug addiction and child sexual abuse influence entry into prostitution; moreover, marginalized groups such as Aboriginal women and girls are disproportionately represented. Rather than penalizing these people further, the government has opted to administer justice in a restorative fashion, proposing exit strategies to assist the victimized.
Not surprisingly, Sweden's anti-prostitution law was supported by its Social Democratic Party, its Left Party and its Green Party, and opposed only by conservatives who were inclined to favour the outright criminalization of both the sellers and the purchasers of sex. Interesting then, that in Canada, it fell to a Conservative government to propose legislation typically favoured by the left; and it fell to our left to quibble about it and now, increasingly, to mobilize against it.
The issue is complicated by the fact that opponents of the bill also claim to be representing the interests of women. On the one hand, there are those of the libertarian persuasion who want to promote the idea that prostitution is one kind of work among many and should be dignified as such. They point to women such as Terri-Jean Bedford — a former sex worker, now a professional dominatrix, who at one time operated an S&M dungeon rather aptly titled Madame de Sade's House of Erotica — who claim to love their work. The normalization of any kind of sex work, supposedly in the interests of the women who comprise the vast majority of sex workers is the motivation here.
On the other hand, there are those, equally claiming to represent the best interests of women, who argue that the criminalization of the purchasers of sex (i.e., the johns) will have the unintended effect of harming prostitutes further, by driving the practice underground and leaving women vulnerable to abuse. In countries where prostitution is legal, however, the evidence doesn't seem to support this claim, since legalization inevitably increases demand, and it stands to reason for rather obvious reasons that the safety of the women involved is not appreciably different whether the practice takes place legally or illegally, underground, indoors, outdoors or in back alleys.
These facts aside, the radically different approaches that Western democracies are taking to the issue of prostitution (unlike, say, the issues of abortion or gay marriage, where the consensus among nations has been consistently in favour of the liberalization of laws and in the promotion of the notion of the lawfulness of these respective practices) invites further consideration. Do these radically different approaches not reveal a tension at the heart of liberalism, even an unravelling of the logic of liberalism itself ? For in the case of prostitution, two of liberal political philosophy's fundamental tenets — equality on the one hand, and the valorization of individualism and individual freedom on the other — instead of coexisting as ready allies, as they do when it comes to the issues of abortion or gay marriage, are now being marshalled for distinctly rival conceptions of the good. Those committed to promoting gender equality and eliminating the subordination of women find themselves struggling against their former bedfellows: the proponents of radical individualism and freedom of choice. A woman has to be free to choose, even if that choice is a life of prostitution (dignified as "sex work"). A man, presumably, should also be free to choose: in his case to purchase sex wherever, whenever and with whomever he pleases, or to occupy himself as a pimp, profiteer or trafficker whose career choice can be lived out with impunity. Absolute freedom is the overarching good, and hence self-determining choice is valorized for no other reason than that it is self-determining choice.
And yet, because liberal democracies are committed at least in principle to gender equality, there's a sizable number of people who are now realizing — on this issue, at least — that you can't have it both ways. The dilemma then becomes: should we join the forces promoting unbridled freedom of choice or the forces advancing equality between the sexes?
The decision to join one side or the other might well seem vulnerable to the charge of being rather arbitrary, and indeed it frequently is, especially when you realize that those who are advancing the cause of self-determining choice and radical individualism — presented as a concern for the rights of women engaged in "sex work" — could just as easily, with equal purchase price on political correctness and feminist legitimacy, have put their support behind the forces committed to ending what is clearly a deeply gendered practice that can have no place in any society committed to advancing the equality of women.
The choice is arbitrary unless, of course, one has a more substantive notion of both freedom and equality. Contemporary neo-liberalism's understanding of freedom as the freedom an individual has to believe, do and choose whatever she wants — its separation of freedom and truth — has been revealed in all its paucity in the kind of testimony given in Bedford and in the debates concerning the legalization of prostitution that have emerged in its wake. Liberalism, as a political and social philosophy, has now all but exhausted itself, exhausted its capacity to invest terms like "freedom of choice" or "individual rights" with anything even resembling meaningful import. The increasingly fragmented view of the person at play in Western democracies, and by extension now increasingly in other parts of the world as well, reveals the insufficiency of the anthropology proposed by liberalism and underscores the fact that something else is needed — and needed rather urgently, too. Having finally unravelled itself after a long historical process from the Christian culture that bequeathed its notions of freedom and individual human dignity, liberalism is in a catastrophic tailspin that threatens to take us all with it, all the way down to Madame de Sade's Bondage Bungalow.
So what should concerned Catholics, other Christians, and men and women of goodwill do about the political and social crisis that Western liberal democracy is undergoing worldwide? The issues of prostitution, abortion, gay marriage and so on are indeed important legal and moral issues, and can be addressed as such. Most Catholics, other Christians, and men and women of goodwill engaged in battling these issues, battle them as such; but these issues are first and foremost meta-ethical issues, and by that token, any attempt to address them simply at the level of law or morality is not going to be adequate.
How, then, can we recover a more adequate anthropology, sufficient to respond to the crisis that is upon us? How do we recover a notion of freedom that underscores the fact that humans have an ontological relation to one another, and hence a responsibility for one another, that precedes the individual choices they make; or a notion of human dignity that holds human beings are equal in dignity because they have been created uniquely, and loved into existence by, God? Engaging in the battle at the ethical level or at the level of the law — and the new law is, in my estimation, a very good one — can never be enough. We can't rest on our laurels because we now have a good law in place. It is no cliché to say that changing the law doesn't change the heart; and this law is just as vulnerable to being struck down as were all the laws that until recently seemed inviolable: laws that protected the defenceless unborn, the terminally ill, the handicapped, the Christian view of marriage, and so on. Those correct laws weren't enough to save us from the tumultuous social change that is now upon us. Nor can we presume, to quote the Spanish theologian, Julián Carrón, "that from its action, no matter how praiseworthy, the ideal and spiritual renewal of the city of men can mechanically arise." The renewal of the city can only be born from "a new humanity generated by love for Christ, by Christ's love."
Carrón also says: "This is the clarification that lies at the heart of Evangelii Gaudium: the observation that, in the Catholic world, the battle for the defence of values has, over time, become so pre-eminent that it ends up being more important than the communication of the novelty of Christ, the witness of His humanity. This exchange of antecedent and consequent demonstrates the 'Pelagian' error of much of today's Christianity — the promotion of a… Christianity… deprived of Grace. The alternative is not found, as some people complain, in a 'spiritualistic' flight from the world. Rather, the true alternative, as we have seen, is the Christian community — when not emptied of its historic substance — which offers its original contribution 'by reawakening in men, through faith, the forces of authentic liberation'" (Benedict XVI, quoted by Julián Carrón in "Europe 2014: Is a New Beginning Possible?" Traces No. 5, 2014).