The Wicked Problem of Prostitution and Sex Work Policy in Canada

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Haak, Debra
prostitution , sex work , constitutional law , criminal law , vulnerability theory , legal problem solving
Prostitution is a wicked problem. The debate over prostitution policy in Canada includes a range of differently situated stakeholders centring different problems, proposing solutions that are in apparent conflict, and making divergent and oppositional rights claims. Prostitution policy is largely shaped by value conflicts rather than by material interests. Where contemporary policy models appear to have positive effects for some stakeholders, they have offsetting negative effects for others. Canada’s current prostitution policy aims to eradicate prostitution, but some individuals do and will continue to engage in prostitution. The constitutionality of the new legislative provisions accompanying the policy is uncertain, and the policy’s effectiveness and effects are currently unknown. This thesis applies the conceptual and analytical lens of interest-focussed legal problem solving to reconcile the interests of differently situated seller stakeholders reflected in the contemporary debate. Those who engage in prostitution are exposed to significant risk of harm, including adverse sexual and emotional health consequences and violence. All sellers and potential sellers share an interest in reducing their risk of experiencing the harms associated with prostitution. The current body of empirical knowledge about prostitution and sex work in Canada is incomplete, reflecting issue bias in favour of one group of seller stakeholders and prioritizing one set of harms. Removing criminal sanctions over prostitution has the effect of placing responsibility for risk management on individual sellers; all sellers or potential sellers may not be equally situated to manage the risks or to avoid the harms associated with participating in prostitution. Drawing on recent economic scholarship about prostitution policy regimes and on Martha Fineman’s vulnerability theory and the concept of resilience, this thesis suggests “incomplete commodification” as a means of recognizing and responding to the interests of differently situated sellers or potential sellers in reducing or avoiding the harms associated with prostitution, including in better ensuring that any permissible purchase of sexual services is from those most able to manage their risk of harm.
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