Monday, 9 June 2014

Making a Mockery of the Constitution

Well, it finally happened, the government tabled its new bill to replace our unconstitutional prostitution laws. The followed the "highly successful" Nordic Model of criminalizing the purchase of sex rather than the sale of it.

"Highly successful" is a phrase meaning that sex workers in countries that have implemented this model are more likely to get STIs and more likely to be the victims of violence after the law was passed than before. On the other hand, apparently there are less of them, or the ones that are there are less visible.

Any reasonable person looking at those facts would say that the Nordic Model encouraged women who had other options to choose other options, and scared off some men who were worried about criminal records. Left remaining were women who were in trouble and couldn't find another solution and men who weren't so concerned about criminality. This "highly successful" model did some work to eliminate non-problem parts of the industry and didn't do anything, or didn't do nearly as much, to eliminate the big-problem parts of the industry.

This law does basically all the things to sex workers that the old law did in terms of making their lives more difficult and their work more unsafe. In a way we are lucky that we are using a failed model of another society since it won't take as long to accumulate the necessary data to challenge this law in court.

But that's really the problem. Obviously passing laws about who we are allowed to have sex with and for what reason and who we are allowed to talk to about having sex for what reason and where is a constitutionally tricky issue. Who we have sex with and why is one of those things that we get ours backs up about when the government tries to regulate it. In order to pass such a law government has to have a good reason to think that the ill being prevented by the law is significant and that it outweighs the harm being done, otherwise it will get tossed.

In order to convince the courts that the harm being done outweighs the harm being prevented, sex workers need actual evidence of the harm being done. And even if that evidence is readily available they need to actually make a court challenge, which is a long and costly exercise.

This law is not going to survive that court challenge, but it will be years before it is actually struck down. By passing this law the government is doing one of three things: 1) wilfully ignoring reality for political reasons; 2) cynically passing a law it knows will be struck down because by the time it gets struck down it will be someone else's problem; or 3) actually just being stupid. I'm not thrilled with any of the options, but in this case I think I'm betting on number one. But just to let you know, if I was in power and I was passing a law like this, it would be number two. The Conservatives, bless their hearts, just aren't that smart.

No comments:

Post a Comment