Dan Gardner is the New York Times best-selling author of Risk, Future Babble, and Superforecasting (with Philip E. Tetlock). His books have been published in 25 countries and 19 languages. Prior to becoming an author, Gardner was an award-winning investigative journalist. More >

We can't keep ignoring the horrors facing sex workers

On Tuesday, a judge in Ontario concluded that the three most important criminal laws forbidding activities related to prostitution prevent prostitutes from taking simple safety precautions that would reduce their risk of violence at the hands of clients. Hence, the laws make it much more likely that prostitutes will be assaulted, robbed, raped, and murdered. Thus, Madam Justice Susan Himel concluded that the laws violate Section 7 - "security of the person" - of the Charter of Rights. They would be struck down 30 days from the delivery of the judgment. The next day, MPs gathered for Question Period. According to a tally made by journalist Aaron Wherry, 38 questions were asked. One dealt with the court's decision: The government announced it would appeal. Now, stop and think about that for a moment. After a long trial and the careful examination of heaps of evidence, a judge concluded that the law is actually helping misogynistic thugs to terrorize some of the weakest people in society. And the next day, most MPs shrugged. Oh, they talked lots. They talked about this. They talked about that. They talked about all the usual crap. They even found the time to pass a ridiculous motion condemning Maclean's magazine for publishing something they didn't like. But members of Parliament did not talk about the very real possibility that laws passed by Parliament were aiding and abetting savage crimes against vulnerable women. Now, I don't want to suggest the political class was not interested in the court's decision. It was. Many ministers and MPs expressed emphatic opposition to the judgment. Mayors and police chiefs worried about the legal vacuum that may result. Spokespeople for business associations expressed dismay. Talk radio hosts swelled with righteous fury. The editorialists at the Globe and Mail were also alarmed. Not at the possibility that the law is helping to butcher women, naturally. No one was alarmed about that. No, it was the perceived constitutional impropriety that had the editorialists frowning vigorously. "An Ontario judge had no business striking down three major anti-prostitution laws," the Globe fumed. "Who is she to weigh all the potential harms at stake and decide matters, on either side?" That's Parliament's job. Harrumph. Of course the Globe didn't mention Section 7 of the Charter. Or the Charter, for that matter. Which made it look as if the judge were simply deciding for herself what the laws of Canada should be. But in reality she did no more than her job required. Fish got to swim, birds got to fly, judges got to judge. But that's really not the point, is it? Let me repeat: a judge concluded that the law is helping to butcher women. Sure, it's fun to argue about the role of the judiciary. Important, even. But isn't the judge's conclusion about what the law is doing to women just a little more worrying than the possibility that a judge's interpretation of her role is excessively expansive? Place the two issues on a scale and weigh them. On one side: an overstepping judge. On the other: thousands of bruised and bleeding women. And several hundred corpses. Which matters more? Now, I want to emphasize that reasonable people can look at the evidence and come to a different conclusion that Justice Himel. But what no reasonable person can do is shrug. The mere possibility that the law is contributing to brutality inflicted on vulnerable women is horrifying. A reasonable person who hears this will want to know more. A reasonable person will demand further investigation. A reasonable person will insist on getting to the bottom of this, now. But on this issue, I'm afraid, there aren't many reasonable people. Eight years ago, I wrote a long series of articles that laid out the same evidence Justice Himel laid out in her judgment and came to the same conclusion. There was no reaction. None. In all the years I've been in journalism, nothing I've ever written has generated less interest. (Full disclosure: I am proud to say some of those articles were entered into evidence in the case before Madam Justice Himel.) Maybe that was my fault. Maybe I wrote the articles badly. Maybe I didn't make a compelling case. I wish it were my fault, frankly. Because the only other explanation is that most politicians and citizens don't give a damn what happens to prostitutes. But that, I'm afraid, is precisely what the evidence suggests. In 1985, a special committee of Parliament concluded criminalization was putting women in danger. It recommended prostitution - which is technically legal anyway - should be permitted in tightly regulated circumstances. It was ignored. Researchers on the Fraser Committee worried that a new law against communicating for the purposes of prostitution would worsen the problem, so they got a review provision put into the legislation. Time passed. The review was conducted. It showed violence had indeed worsened. It was ignored. In 1996, the Department of Justice commissioned research from criminologist John Lowman that showed the extent of violence against prostitutes and demonstrated how the law contributed to it. It was ignored. Lowman sent letters to politicians begging them to look at the research. They were ignored. He tried to tell reporters that the Robert Pickton story was as much about the law as it was about a serial killer. Mostly, he was ignored. In 2006, a parliamentary sub-committee examined the evidence and all but the Conservative members of the committee agreed that the status quo "does more harm than good." It was ignored. Now we have the judges' ruling. It can't be ignored because it strikes down the laws. So those who ignored the brutality inflicted on prostitutes all these years lashed out at the judge. How dare she? If the appeal succeeds, this will all be forgotten. A few honourable politicians - the likes of Vancouver's Libby Davies - will keep fighting to get people to pay attention. But it will be a futile struggle. As it has been for 25 years. But if the appeal fails and Justice Himel's decision stands, politicians who would prefer to moralize about prostitution, or talk about anything else, will have no choice but to deal with the gaping hole where Canada's prostitution laws used to be. Thanks to one brave judge, it will be impossible to ignore what we have so shamefully ignored for decades.