It is not a matter of it being a threat. Sex is physically invasive and a woman has a right, rooted in security of person , to refuse to consent to it, for all the same reasons of control over her own body that give her a right to abort a pregnancy.
NO BLACK MEN! (That thread again, with a different slant to it.)
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Would it be possible to argue that her rights may be in question regarding physical invasion/penetration as she has made a free (hopefully) choice for that to be her profession?
Yes, but by consenting to commercial sexual activity, couldn't someone argue that curtails some rights and freedoms of the provider (and by provider, I'm thinking both male and female providers)?
For example, might it not be a requirement that regular testing for STDs is mandated for those licenced in the sex industry? This is also invasive and violates security of the person, but I could see that condition enacted for the protection of the public.
Also, in the case of a woman and her right to control over her body... if a women agrees contractually to become a surrogate (i.e. carry a child to term for another couple), does she have the right to abort the pregnancy? Or would she be civilly liable for breach of contract, despite the fact that enforcing the contract would violate her security of person? I don't know the answer, perhaps someone here does. Is there precedent in law here?
Agreed, that is absolutely the case now.
However if prostitution were to become a regulated and licenced commercial activity, what then? We can't just assume that politicians, lawmakers, or the general public, would see things the same way as those in the profession or their clients do. There are a whole host of competing interests that come into play once the government gets involved in anything.
Which law specifically is this, and what is the context? i.e. does it specifically address this situation with respect to commercial sex workers?
The question still remains. Could she terminate her pregnancy at her own discretion and not open herself up to a civil action? I suspect the answer is she would face the prospect of reimbursing the clients for their costs, at the very least.
(As an aside, reimbursement of costs is a vague criteria, and I known one fertility law expert who says it is relatively easy to get around the prohibition on paid surrogacy. But that is a topic for another time...)
They do however have the power to constrain business activities in a wide variety of ways. Again, mandated testing for STDs for sex workers. Also violates security of the person... do you think this won't be on the requirements list if sex workers become licenced?
The SCC on consent:
Consent for the purposes of sexual assault is defined in s. 273.1(1) as “the voluntary agreement of the complainant to engage in the sexual activity in question”. This suggests that the consent of the complainant must be specifically directed to each and every sexual act, negating the argument that broad advance consent is what Parliament had in mind. As discussed below, this Court has also interpreted this provision as requiring the complainant to consent to the activity “at the time it occur
http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/7942/index.do
In short, women do not consent in advance to sexual acts, they must consent to each and every sexual act individually, at the time the act occurs, and their consent can be withdrawn at any time. Otherwise it is sexual assault.
They sure can. They can impose all kinds of conditions on the transaction if it occurs, but in the case of sex for money, they cannot require THAT it occur.
Really, take a big step back and apply the laugh test: Is any Canadian court ever going to order that a woman be raped, or punish a woman for refusing to be raped? The answer, "no", should be delivered with a belly laugh.
Thanks for the link, that was an interesting read.
However, it does little to address the topic at hand. The context and substance of that case was "can sexual consent be given while unconscious?", and the SCC was clear to highlight in its judgement that it was dealing ONLY with that topic.
The quoted section above specifically states "Consent for the purposes of sexual assault". That doesn't apply since nobody in this thread is advocating sexual assault or forced sex.
There is no mention whatsoever of sex for money, or advertising sex as part of a commercial service and its implications, or a blanket refusal of all advertised sexual services to members of a particular protected group.
I did a search on the SCC website and didn't come up with a relevant case that might shed some light on the topic. If anyone has such a link (or one from a lower court), that would be most interesting and enlightening.
If there isn't a relevant precedent in Canadian law, I suppose we could look at other countries and what has happened there, though that is by no means a guarantee that Canada would follow the same legal path.
I don't think anyone (at least in THIS thread on the subject) was suggesting otherwise.
However, I think the notion that - IF prostitution is ever regulated - a provider could openly deny service to clients on the basis of race alone without ANY legal consequences is extremely optimistic.
Hence this discussion. Definitely interesting food for thought, if not of practical value in the current political, social, and legal climate.
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Due to the conservative point of view of most terbites, it would be a horrible forum to discuss a topic of this nature. You can deduct objectiveness, history, reason, and fact out of the equation.
I believe it would be a unique situation and would require the setting of a precedent.
LMFAOI'll LMAO and be ROFL if ever anyone questions the legality of escorts choosing not to see clients based on racial preference.
I know one thing for sure: nobody will ever be able to enforce anything on me that even remotely dictates with whom I choose to share my body with.
While that is the substance of that particular case the SCC wrote clearly that consent must be given for each sex act, and cannot be given in advance. The inability to consent in advance was significant to a case where someone is unconscious, but it also torpedoes the idea of contracts that guarantee sex.
The point is that if a woman does not consent then it is sexual assault.
If you hire a prostitute and in the middle of the session she demands that you stop, but you don't stop, it becomes rape.
If "service" means a sexual act then yes show can refuse service for any reason at all.
If she also can be hired out to accompany you to a dinner ball, that service probably cannot be refused on the basis of race.
Since you cannot contract for sex in advance legalized prostitution would not mean that sex was guaranteed to paying customers, just not illegal if it happened. Kind of like now.
So you might wind up being able to require the escort to have a conversion in private with you, but you could not require her to perform sex acts against her will.
This is the only important post in this thread. The Charter is a schedule of obligations of the Government towards individuals, not a schedule of obligations of individuals to each other.
Again, context is important, and what the SCC wrote is in the context of this case, i.e. conscious consent. The court ruled that one cannot give broad consent in advance to sexual acts that occur when one is unconscious. It did not limit the ability to give consent in advance to specific sexual acts (a sex workers "menu"?) in general, but did say the law required that consent continue during the act and that in-the-moment consent took precedence over prior consent. Even then it was not a unanimous ruling, as one Justice concluded that consent could be given in advance of unconsciousness.
You are drawing an inference from this that consent to specific sex acts cannot be given in advance in other situations and therefore torpedoes sex contracts, but the SCC did not state that. That is your opinion and interpretation, which is fine and the point of this discussion is to benefit from different opinions, but it isn't an open-and-shut legal case by any means.
Agreed. I haven't stated otherwise. However, it still doesn't address the issue at hand. There is no "middle of the session" because the session was refused from the start, on the basis of race.
As I indicated above, the claim that one cannot contract for sex in advance isn't indicated by the SCC case referenced, though perhaps it is elsewhere. However, whether one can or cannot contract for sex in advance isn't central to this discussion.
Leaving that aside, I think this is the likely scenario if the current laws remain unchanged.
But if prostitution were to "come out into the light" and become a regulated commercial activity, realistically additional laws would be enacted and/or some amendments to existing laws would be in order. I imagine that conflicts between individual rights to security of person and freedom from discrimination would be addressed, if not by Parliament then by the courts.
It will be interesting to see (or more likely, not see, as the issues are just too thorny for politicians to tackle).
