A Criminal Mind: Do harms of criminalization outweigh the benefits?

In my experience, criminal lawyers tend to have an ambivalent attitude to the criminal law. This probably distinguishes us from how architects feel about architecture and how dentists feel about teeth. We find the legal doctrine intellectually engaging, the human drama compelling, and the rights of the accused worth protecting.
But most of us still think that, as a society, we should have less of it with fewer crimes, charges, arrests, people populating our jails, and prisons.

Why is that? Simply put, people involved in the system tend to recognize that criminal law isn’t very good at many of the things society calls on it to do. Sure, it’s passably good at its core mission: marking off the very worst behaviour, deterring people from committing those acts, stigmatizing those who do so anyway, and locking up the relatively few criminals society really needs protection from.

For these central functions, we couldn’t do without it. But criminal law has proven itself to be pretty bad at many other tasks: policing morality, promoting business integrity, and winning the war on drugs. Even with respect to our demonstrably guilty clients, it’s more often than not our sense that nobody in particular benefits from their odyssey through the criminal justice system. In far too many cases, everyone would be better off if police had never laid a charge.

In my mind, that’s where the legislative debate over the new prostitution law needs to begin. It struck me that much of the media commentary focused on the wildly differing characterizations of sex work by both proponents and opponents of the law. Sex work is either the destructive handmaiden of sexual exploitation or the healthy expression of a valid occupational choice. I suspect that, depending on context, it can be either of those two things. But I also think the argument misses the main question we need to be asking ourselves: Is criminal law the best response to prostitution?

Incredibly, Justice Minister Peter MacKay announced the law’s objective is to eliminate prostitution in Canada. If a single criminal law has ever eliminated a particular activity, I’m unaware of it. Even granting MacKay some rhetorical leeway, I’m also unaware of any activity that has fallen to negligible levels as a result of criminal proscription.

In other words, contrary to the minister’s utopian aspirations, criminal law is substantially predicated on its own failure. People are going to break the law. This means the relevant question isn’t whether we should prohibit a given behaviour. Instead, the question is whether it’s worth punishing people who do it anyway. As the legal philosopher Douglas Husak points out in his very compelling treatise Overcriminalization, the question of whether to criminalize or not would be a lot simpler if the criminal law actually succeeded in modifying people’s behaviour.
In other words, if passing a criminal law forbidding an act actually prevented people from doing it, we wouldn’t need to worry about whether punishing people for committing the offence is justifiable.

But in reality, criminal law is really about punishing people who break the laws rather than ensuring people comply with them. And there are plenty of ways to discourage or penalize bad behaviour without branding people as criminals and punishing them accordingly. After all, society generally considers lots of things to be bad but not suitable for criminalization: adultery, cheating at cards, drinking too much, committing torts, and breaches of contract. Even if we all now agree on some version of John Stuart Mill’s harm principle — the idea that the state should only criminalize conduct that’s harmful to others — we still lack consensus on how much harm should be necessary to invoke the machinery of criminal justice.

So I think the debate should focus less on whether sex work is good or bad and more about whether, even if sex work is mostly bad, it’s appropriate to brand sex workers or their customers as criminals. Recall that the criminal process itself causes harm to those caught up in it. Family members of the accused are often collateral damage, and the experience is rarely heartening for witnesses and victims.

All this being so, the state ought to face a heavy burden to show that the upside of a criminal prohibition is sufficient to justify all of the misery attendant upon arresting people, trying them, and putting some of them in jail. The burden is especially difficult to satisfy when the candidate for criminalization is a consensual act such as the purchase or sale of drugs or sex. In his book, Husak formulates an elaborate, and in my view, persuasive set of criteria to morally justify a criminal law. While philosophers will continue to debate the precise content of those criteria, I think the important point is we need to be more skeptical when politicians make the leap from decrying some social problem to invoking criminal law as the natural solution to it. We need to emphasize the harmful effects of criminalization and insist that we not overlook those issues when the politicians focus on the harm caused by pimps, johns or drug dealers.

Fortunately, our courts are aware of these concerns. The Supreme Court in Canada (Attorney General) v. Bedford was clear that the old legal regime caused an unacceptable level of harm to sex workers. The government presents the new law as an effort to protect the sex workers it now sees as victims rather than criminals. But we need to evaluate whether the purported improvements are anything more than cosmetic. I suspect they’re not.
We also need to have a conversation about whether attempting to regulate this trade with the blunt instrument of criminal law does more harm than good. Criminal law should be an option of last resort when other ways of addressing a problem are clearly inadequate. When it comes to prostitution, we need to give other forms of regulation and harm reduction a try.

Matthew Gourlay handles criminal and regulatory matters at Henein Hutchison LLP with an emphasis on appellate litigation. He’s available at [email protected].

For more, see "Harper ignores Supreme Court in new prostitution law."

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