Judging Sex Work

The Supreme Court has twice grappled with constitutional challenges to the criminalization of sex work. In Bedford, it struck down prohibitions against communicating in public for the purpose of sex work, living on its avails, and working from a bawdy house. Its narrow constitutional reasoning nevertheless allowed Parliament to respond by adopting the “end demand” or “Nordic Model” of sex work regulation, an approach widely criticized for failing to ensure sex worker safety.

Judging Sex Work takes stock of the Bedford decision, arguing that the constitutional issue was improperly framed. Because the most vulnerable sex workers have no realistic choice but to commit the impugned offences, they already possess a legal defence because their conduct is considered morally involuntary. The constitutionality of the sex work laws should therefore have been assessed by their application to those who choose to engage in sex work, an approach that militates in favour of upholding these laws based on current jurisprudence.

While this approach leads to the former restrictions on sex work being constitutional, it also has the salutary effect of forcing litigants to consider a more pressing question: Can sex work be rationalized as a criminal matter at all? The author argues that criminalization of sex work – including use of the Nordic Model – is unlawful because it does not target harmful or objectively offensive activity necessary to engage the criminal law.