O’REGAN J and SACHS J
[87]
All of these contentions were challenged by the appellants and the amici. Counsel for the
appellants and the amici agreed that trafficking in women and child prostitution ought to be
prohibited, but contended that the general suppression of commercial sex makes it more rather
than less difficult to single out these evils for focused attention. Similarly, they argued that the
criminalisation of commercial sex exacerbates the links between prostitution and crime and
disease, and that any public nuisance could be corrected by appropriate regulatory measures.
They also indicated that the costs of law enforcement in this area are particularly high. Being a
so-called victimless crime, evidence can usually only be obtained by egregious forms of
entrapment, which fosters corruption.51 Counsel strongly criticised the proposition that the
banning of prostitution was justified as a measure to reduce violence, contending that it was
precisely the marginalisation of prostitutes by the law that renders them vulnerable to violence:
51
It was indeed considerations of this kind that led the Wolfenden Commission to conclude that the damage
done to the administration of justice through attempts to suppress prostitution was disproportionate to the
public ends served: better that the law concentrate on dealing with public nuisance dimension of
prostitution than with prostitution itself. Report of the Committee on Homosexual Offences and
Prostitution (Wolfenden), Cmnd No 247 (1957) London: HMSO at paras 222-97. Similar arguments are
summarised in D Richards “Commercial Sex and the Rights of the Person: A Moral Argument for the
Decriminalization of Prostitution” (1979) 127 University of Pennsylvania Law Review 1195 on the basis of
experience in the USA.
60
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