Gender Imbalance in the Use of Prostitution Laws

The Law In Practice

"Section 213 is by far the most used and prosecuted of the prostitution provisions in the Criminal Code. The focus of the law and its enforcement is on controlling street prostitution and its associated nuisances. ...not only is this provision the easiest to enforce, but it is also the driving force behind most complaints to police. Since section 213 came into force in 1985, communicating offences represent more than 90% of all prostitution-related offences reported by police.

Within the statistics on the use of section 213, a gender and role imbalance (client versus prostitute) quickly emerges, both in terms of guilty findings and sentencing. While the gender breakdown for those charged under section 213 offences seems to be relatively even between men (primarily clients)and women, prostitutes ultimately have higher conviction rates and face harsher sentences. To illustrate, in 2003-2004:

* 68% of women charged were found guilty under section 213, while 70% of charges were stayed or withdrawn for men charged under the same provision;

* Upon conviction, just under 40% of women were given prison sentences, while just under 40% of men convicted under the same provision were fined, and the prison sentence rate for men was just over 5%;

* 92% of those sentenced to prison for communicating offences in 2003-2004 were female.

Because of the marginalized environment in which they live, prostitutes often face criminal records and harsher penalties than their clients. Even though section 213 is a summary conviction offence that applies equally to both prostitute and client, due to their lifestyle and the relationship prostitutes often have with the law, many prostitutes fail to appear in court, leading judges to issue bench warrants for their arrest. When they are then arrested, prostitutes are consequently charged with more serious offences such as obstructing police, attempting to obstruct justice, and failure to appear in court — all offences which may lead to a criminal record. This is particularly common since prostitutes often plead guilty to such charges early on. Ann Pollack of the British Columbia Civil Liberties Association effectively highlighted the dilemma:

The women get charged, go to court, and then don’t show up for their court date, so they get arrested on a bench warrant… What starts off as a small crime… ends up in a significant jail sentence… It usually wouldn’t end up with a serious sanction, a prison sentence, if somebody was convicted of simply communicating for the purposes. But after you add on all the breaches of area restriction and the failure to attend court, you have all these crimes of process heaped up on top of what was a simple offence to begin with, and now somebody is looking at jail time.

By contrast, statistics indicate that clients walk away with lighter penalties and fewer convictions than prostitutes under section 213. Clients usually manage to avoid full prosecution and jail sentences by attending “john school”, upon completion of which they receive a stay of charges or the charge is withdrawn. It may be that clients are more likely candidates for deterrence given their fear of discovery by family members or for their reputation more generally. Detective Howard Page of the Toronto Police Service stated that:

I believe because of the females’ unfortunate circumstances there’s a great disparity between the sentences that are being given to the prostitutes and the sentences and alternatives being given to the johns… I think there’s a large double standard, in the sense that I don’t believe sex trade workers should receive incarceration periods from the judicial system when we have johns buying their way out of any form of criminal record. I think that’s wrong, I think it’s distasteful, and I think it victimizes the prostitute again because it places a stigma on the prostitute, saying that what they did is treated as a harsher offence than what the john did."

source: Subparliamnetary Committee Report on Solicitation Laws, click here for full copy.