Paradigms of Prostitution: Revisiting the Prostitution Reference

JUSTICE BERTHA WILSON: ONE WOMAN’S DIFFERENCE, Kim Brooks, ed., UBC Press, 2008

Posted: 11 Aug 2010 Last revised: 19 Aug 2010

See all articles by Janine Benedet

Janine Benedet

University of British Columbia - Faculty of Law

Date Written: 2008

Abstract

The author contends that it is impossible to evaluate the strength of the legal claims concerning the constitutional validity of the criminal law of prostitution without recognizing directly, and choosing among, the multiple paradigms of prostitution that frame these arguments. A “paradigm”, or way of understanding prostitution in its social context, is usually adopted without scrutiny, by judges or scholars, in ways which often predetermine the legal result. The issue is not merely what paradigm of prostitution is more accurate – an important evidentiary question – but whether the outcome of a constitutional challenge is affected if the paradigm animating the legislation (Parliament’s paradigm) is not the “right” one.

The author briefly summarizes the paradigms of prostitution that appear in public and legal discourse, before reviewing the various reasons for judgment in the Prostitution Reference case decided by the Supreme Court of Canada in 1990. Only Justice Wilson explicitly recognized the existence of these paradigms and their importance to the legal outcome. Her reasons suggest she was troubled by the hypocrisy of the criminal law of prostitution but fell into the trap of assuming that prostitution must be normalized in order to show respect for prostituted women. The author argues the same false correlation underlies two ongoing court challenges to prostitution laws in Ontario and British Columbia. A better approach is to recognize prostitution as a practice of sex inequality that requires an asymmetrical legal response.

Keywords: Canada, Criminal law, Prostitution, Justice Bertha Wilson, Abolition

Suggested Citation

Benedet, Janine, Paradigms of Prostitution: Revisiting the Prostitution Reference (2008). JUSTICE BERTHA WILSON: ONE WOMAN’S DIFFERENCE, Kim Brooks, ed., UBC Press, 2008, Available at SSRN: https://ssrn.com/abstract=1657141

Janine Benedet (Contact Author)

University of British Columbia - Faculty of Law ( email )

1822 East Mall
Vancouver, British Columbia V6T 1Z1
Canada
604 822 0637 (Phone)
604 822 8108 (Fax)

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
768
PlumX Metrics