From Abortions to Sex Work: What Decriminalization Can Teach Us About Stigma in Criminal Law

Abstract

This paper pursues the idea that decriminalization and its aftermath deserve the attention of criminal law scholars. It presents the development of abortion law post-1969 and particularly following full decriminalization in 1988 in the Maritime provinces as a case study. Focusing on criminal law theory, decriminalization provides an opportunity to empirically test and doctrinally review the interaction between criminal law and stigma. The point of departure is the observation that abortion stigma has continued unabated after decriminalization. In the view of the Supreme Court, the application of criminal law produces social stigma. The Court also relies on the production of stigma as a distinguishing feature of true criminal law, contrasting it with regulatory law. This both suggests that criminal law is uniquely positioned to produce stigma and that regulatory law does not produce stigma. The experience of abortion decriminalization challenges both of these assumptions. Using social stigma theory, I consider the relationship of criminal law stigma to social stigma and its implications for the decriminalization and recriminalization of sex work.