The answer used to be a unequivocal “yes” since the alternative is to legislate amorality; life is no longer so clear-cut:
Lorne Gunter: Prostitution may be immoral, but it shouldn’t be illegal
I have sympathy for the groups lining up in Ontario Superior Court to preserve Canada’s laws against prostitution.
As Derek Bell, a lawyer representing the Christian Legal Fellowship, the Catholic Civil Rights League and REAL Women of Canada told Madame Justice Susan Himel yesterday, “the prohibitions contained in [the Criminal Code] in part were designed to protect public morals and against moral corruption.”
These are important considerations. I don’t want my daughter or yours or any other young girl drawn into prostitution. Like the largely Christian groups asking the court to turn down a constitutional challenge of the ban on prostitution — brought by a dominatrix, a former sex trade worker and a working prostitute — I oppose prostitution on moral grounds.
But I am even more opposed to laws dictating morals between consenting adults. The state has no business proscribing what is right and wrong for people quite capable of making up their own minds. I would not, for instance, overturn laws against statutory rape, child pornography or bestiality; children and animals cannot give informed consent. Nor am I in favour of legalizing murder, assault, rape or robbery, because no one has a right to take another’s life, liberty, wellbeing, dignity or property without their consent.
Such is the argument of the Libertarian. The problem with it is this:
On the one hand, Gunter says prostitution, while immoral, should not be illegal, implying the legality of a thing should rest on something other than morality.
On the other, he asserts that laws that allow the harming of one individual by another must stand; the difference is in the harming of an individual, something which he would view as, well… immoral.
This is not untypical of those who proclaim that we cannot “legislate morality”: the truth is, everyone wants to legislate morality. It’s just that the only moral imperative left in our civilisation is “do what you want as long as you don’t hurt anyone”; but it is still a moral imperative, albeit a narrow and short-sighted one. The Libertarian might make the argument that laws against murder, theft and so on are there merely to maintain order; but that doesn’t further the argument, since it assumes that order in human society is better – more moral – than disorder.
So Lorne, we do legislate morality and prostitution, if immoral, should also be illegal.
I don’t think it is the prostitutes who should be charged, though. It should be the johns. Sending first offenders to john school has been effective in Ottawa. A second offence should be an automatic jail sentence and publication of the offender’s name. It wouldn’t take many examples before there were a lot fewer customers.
A strange argument from Mr Bell since the SCC has already decided that criminal laws cannot be justified merely by defence of public morals but must point to some actual harm. (BTW this is something that the Harper government should try to change by legislation as it is a criminal law interpretatopn and not yet a Charter principle.) The defence of a law such as this has to translate the moral values that a law upholds into a way of preventing a form of “harm” that liberals van understand.
You’re exactly right about the legislation of morality. Libertarians can be as dangerous as liberals; maybe more so because they can mislead conservatives.
The argument here is easily deconstructed. If something is immoral it should be entered in the Criminal Code? Then I would assume that the author of the article feels that adultery, gay sex and anal sex is not immoral, as there has been no hue nor cry amongst the Christians as of late to reinstate these sexual acts back into the Criminal Code.