Dr alecia johns decriminalisation of prostitution

The Decriminalisation of Prostitution in Jamaica: A Legal Framework for Examining whether the Time has Come

Dr. Alecia Johns

Decriminalisation of Prostitution

Dr. Alecia Johns

The Decriminalisation of Prostitution in Jamaica: A Legal Framework for Examining whether the Time has come JAMBAR CLE Conference, Jamaica November 18 - 20, 2016

ABSTRACT There has been an increasing push for the decriminalisation of prostitution in Jamaica on account of the positive impact which this measure is anticipated to have on the fight against HIV/AIDS, as well as on sex workers’ more general right to health care access and criminal justice. This paper aims to offer a framework for examining the many issues which are relevant in considering the question of whether prostitution ought to be decriminalised. Rather than offering a definitive answer to this legal conundrum, the paper identifies and distils the many questions to be addressed in determining whether, within the Jamaican context, the decriminalisation of prostitution is an idea whose time has come. In so doing, it will examine in comparative context the effects of decriminalisation on three important social harms linked to prostitution: a. violence against, and exploitation of, sex workers; b. human trafficking; and c. HIV/AIDS vulnerability.

INTRODUCTION In September 1957 the UK Parliamentary Committee on Homosexual Offences and Prostitution issued its report on criminal law reform commonly termed “the Wolfenden Report”.

The Report sparked a fierce debate between Lord Devlin and HLA Hart on the role and function of criminal law, namely on whether it includes the enforcement of ‘morals’ and the extent to which criminal law should regulate private, consensual sexual activity. Over 50 years on, these vexed questions still plague modern democracies and are ripe for consideration within the context of the legal treatment of prostitution. This paper aims to offer a framework for examining the many issues which are relevant in considering the question of whether prostitution ought to be decriminalised. It does not seek to offer a definitive answer to this question; its contribution lies more so in offering an approach which identifies and distils the many questions to be answered in determining whether, within the Jamaican context, the decriminalisation of prostitution is an idea whose time has come.

DEFINING THE SCOPE OF THE ENQUIRY The question which has been posed is whether or not prostitution, in Jamaica, ought to be decriminalised. In order to meaningfully address this issue, it is important to first have an understanding of two matters: (i) the current legal position regarding the criminalisation of prostitution in Jamaica and (ii) the precise meaning of ‘decriminalisation’ within the context of this enquiry.

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Decriminalisation of Prostitution (i)

Dr. Alecia Johns

Criminal Law Governing Prostitution in Jamaica

The current legal position is that the act of prostitution in and of itself is not a criminal offence.

However, there are a number of activities connected to prostitution which are criminalised including, procuring an individual to become a prostitute,1 loitering or soliciting for the purpose of prostitution,2 and knowingly living off the earnings of prostitution.3 The table below summarises the relevant criminal offences as well as their penalties:

Legislation

Offence

Penalty

Sexual Offences Act s. 18(b)

Procuring a person to become a prostitute or an inmate of a brothel

Sexual Offences Act s. 23(a)

Knowingly living wholly or in part on the earnings of prostitution

Max term of 10 years in prison or both a fine and imprisonment RM Court: Max term of 3 years or a fine of 500,000

Sexual Offences Act s. 23(b)

In any place, whether public or private, persistently soliciting or importuning for immoral purposes

Circuit Court: Max term of 10 years RM Court: Max term of 3 years or a fine of 500,000 Circuit Court: Max term of 10 years

Offences Against the Person Act s. 68

Town and Communities Act s.

3(r)

If there is reason to suspect that premises are being used as a brothel, a search warrant may be issued and any person found therein who there is reasonable cause to suspect committed an offence may be arrested.

Loitering in any public place and soliciting any person for the purpose of prostitution

It is also important to define what is meant by the term ‘prostitution’. None of the statutes outlined above offer a definition. At common law ‘prostitute’ is defined as a woman who engages in ‘common lewdness’ in exchange for payment.4 For the purposes of this paper, prostitution is understood to mean the rendering of sexual services in exchange for payment between consenting adults. Disagreements remain in many quarters as to whether prostitution can ever truly be regarded as consensual, or whether it is inherently coercive and exploitative.5 However, the term ‘consent’ here is used to differentiate adult sex work from the unequivocally 1

Sexual Offences Act, s. 18.

2

Town and Communities Act, s. 3(r).

3

Sexual Offences Act, s. 23.

4

De Munck [1918] 1 KB 635, 637 – 8.

5

UNIFEM, ‘Gender Equality, Human Rights and Sex Work in the Caribbean’ (March 2009) (the “UNIFEM Report”) at pp 10 – 11; Jane Larson, ‘Prostitution, Labour and Human Rights’ (2004) 37(3) UC Davis L Rev 673.

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non-consensual activities of child prostitution and human sex trafficking, which all agree should remain criminalised and condemned. This paper also focuses primarily on the female sex worker within the Jamaican context (even though some insights may be equally applicable to male sex workers).

(ii)

Decriminalisation: One Point along the Spectrum

The legal regulation of prostitution has previously been classified into four main regimes ranging from complete criminalisation to full legalisation and regulation6:

Model Full Criminalisation

Partial / Asymmetrical Criminalisation

Decriminalisation

Legalization

Features

Jurisdictions

Criminalisation of the sale of sex work, the purchase of sex work, solicitation and third party involvement by pimps and brothelkeepers.

Only the purchase of sex work by clients is criminalised but the sale by prostitutes is not. The aim is to reduce / eradicate sex work by criminalising demand, and to decriminalise the sale / supply so that already vulnerable sex workers are not the actors facing criminal sanctions.

Prostitution itself, as well as activities directly related to it are not governed by criminal law. However, violence and exploitation by third parties against sex workers remains criminalised.

This regime goes further than removing criminal sanctions and introduces laws and policies for the regulation of sex work including licensing, taxation, health regulations for the operation of brothels and red light districts.

Sweden, Norway, Iceland (also known as the “Nordic model”)

New Zealand (2003)

Germany, Netherlands, Nevada (USA).

Decriminalisation is therefore best understood as one point along the continuum between full criminalisation and legalisation. It is defined by Amnesty International, in its policy documentation advocating for decriminalisation as: ‘the removal of all laws and policies that make sex work a criminal offence (such as those prohibiting selling, soliciting, manifesting, buying or facilitating sex work or living off the proceeds).’7

6

See Janet Halley et al, ‘Four Studies in Contemporary Governance Feminism’ (2006) 29 Harvard Journal of Law and Gender 335; UNIFEM Report supra n 5.

7

‘Explanatory Note on Amnesty International’s Policy on State Obligations to Respect, Protect and Fulfil the Human Rights of Sex Workers’ (May 26, 2016) p 21.

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In examining the four regimes outlined above, Tracy Robinson characterises most Caribbean countries, including Jamaica, as being most akin to the full criminalisation model.8 This is on the basis that even though the act of prostitution is not itself a crime, wide ranging bans on solicitation come very close to criminalising the act itself.9 Therefore, if the status quo is most akin to ‘full criminalisation’ the more precise question to be answered is how far along the continuum should Jamaica seek to go. The present enquiry is not therefore limited to whether the time has come for decriminalisation per se, but rather, whether conditions now warrant any movement along the regulatory spectrum and if so, how far along.

A FRAMEWORK FOR THE ENQUIRY The legal treatment of prostitution is an issue which engages a number of complex moral and ethical dimensions including gender equality, human rights, vocational autonomy, public health and public morals. In wading through the morass of these various issues, this framework seeks to provide an outline of questions for consideration which may guide public and legislative discourse in this area. The approach may be summarized in the following six (6) steps: 1)

Defining the precise role and function of criminal law: enforcing morals or restricting ‘harm’?

2)

Characterising the nature of prostitution: legitimate, consensual ‘work’ or harmful, coercive ‘exploitation’?

3)

Establishing common ground: utilising a human rights framework to provide consensus on the need to address ‘clear harms’ – regardless of the position taken on points (1) and (2) above. These clear harms include but are not limited to: a. b. c.

violence against, and exploitation of, sex workers; human trafficking; and HIV/AIDS vulnerability

4)

An evidence-based comparative analysis of the effect of decriminalisation on the three ‘clear harms’ listed above

5)

Analysing international and comparative findings through the lens of Jamaica’s peculiar socio-economic and cultural context

6)

Consultative discourse with all key stakeholders prior to final decision-making

The above framework is based on the understanding that consensus will likely not be reached on points (1) and (2) but that, notwithstanding these disagreements, convergence may be possible on the need to eradicate certain ‘clear harms’ at step (3), using a human rights framework. The next step is to therefore objectively assess any net positive effect on harm reduction, if any, which may be achieved from decriminalisation (at steps (4) and (5)). Armed 8

Tracy Robinson, ‘A Legal Analysis of Sex Work in the Anglophone Caribbean’ (UNIFEM Commissioned Study, April 2007).

9

ibid.

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with this evidence-based assessment, it is then necessary for key stakeholders to come together at step (6) in order to examine what trade-offs may be possible on parties’ fixed normative positions on points (1) and (2), in order the achieve the most favourable result.

(1)

Defining the Role and Function of Criminal Law

In examining whether or not criminal sanctions should apply to particular conduct, it is important to first possess a conceptualisation of the role of criminal law in society. This was the starting point of the Wolfenden Committee Report (“the Report”), referenced above, in which the committee recommended the decriminalisation of consensual homosexual activity between adult males. In outlining its understanding of the role of criminal law, the Committee stated: “… to preserve public order and decency, to protect the citizen from what is injurious, and to provide sufficient safeguards against exploitation and corruption of others… not to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behaviour, further than is necessary to carry out the purposes we have outlined… there must remain a realm of private morality and immorality which is… not the law’s business.”

In the aftermath of the Report, the Hart-Devlin debate engaged further on the question of criminal law’s precise role. According to Devlin, criminal law was not just for the protection from injurious conduct, but also for the preservation and reinforcement of society’s ‘moral fabric’ in order to keep social order from disintegrating.10 On this view, criminal law therefore functions not only to prevent harm but also as a reflection and reinforcement of society’s ‘public morality’. Hart countered this view by asserting J.S. Mill’s ‘harm principle’ which denotes that the only purpose for which power can be rightly exercised over a member of society against his will is to prevent harm to others.11 In Hart’s estimation, the role of criminal law is to therefore protect against harm, with the effect that if conduct is deemed ‘immoral’ but not strictly ‘harmful’ to others, criminal law has no business regulating it.12 In applying this debate to the decriminalisation of prostitution, those who side with Devlin may opine that a ‘public morality’ which deems prostitution as morally repugnant would be a sufficient basis on which to maintain its criminalisation. Those adopting Hart’s approach would argue that prostitution ought to be outside the sphere of the criminal law unless clear ‘harm’ can be established.

However, as Peter Cane notes, it is perhaps more useful to step away from this strict binary and to examine the limits of criminal law within the context of what Feinberg terms as ‘balancing conflicting interests’.13 According to Feinberg, the importance of the freedom to do the conduct being prohibited by criminal law ought to be weighed against the importance of

10

See Patrick Devlin, The Enforcement of Morals (Oxford University Press 1965).

11

See HLA Hart, Law, Liberty and Morality (Oxford University Press 1963).

12

Ibid.

13

Peter Cane, ‘Taking Law Seriously: Starting Points of the Hart/Devlin Debate’ (2006) 10(2) Journal of Ethics 21, 24.

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preventing the adverse effects of the action on others.14 On this view, ‘a lawmaker faced with a decision whether or not to criminalize particular conduct must decide whether or not the interest in being free to engage in that conduct outweighs the interest in not being adversely affected by it’.15 In adopting Feinberg’s approach, it then becomes necessary to weigh these competing interests by examining the nature and effect of prostitution in society in order to assess whether the freedom to engage in it outweighs its potentially adverse effects.

(2)

Characterising the Nature of Prostitution

The legal treatment which one deems should be given to prostitution is largely informed by how one characterises the act itself. As Jane Larson notes, the debate in this area has been largely divided between the ‘abolitionist’ and ‘autonomy’ camps.16 Those who argue for abolition see prostitution as inherently coercive and exploitative given that it stems from structural deficiencies and gender inequalities which force mainly poor women into a highly dangerous trade.17 Those who argue for autonomy see prostitution as a legitimate form of consensual ‘work’ such that the agency and free will of women who choose this path ought to be protected and respected.18 On this latter view the appropriate policy response is therefore decriminalisation and the regulation of prostitution as a field of work.19 However, a 2009 UNIFEM Report on Gender Equality, Human Rights and Sex Work in the Caribbean documents a notable counter to the presuppositions underlying the autonomy approach: “Responding to those who articulate the right of adult consenting persons to engage in sex work and prostitution as an expression of agency and autonomy, one strand of gender equality advocacy points to the significant economic asymmetry between the sex worker and the client that undermines autonomy of women sex workers in particular and therefore exposes them to exploitation, violence and harm… the fact that so many who engage in sex work do so as an economic survival strategy should not be taken to denote the real exercise of free choice.”20 The divergent philosophical views which underpin both camps necessarily mean that consensus on this point is not likely. Notwithstanding these differences, it will be argued that a human rights approach may be useful in establishing common ground on shared aims to reduce / eradicate certain “clear harms” associated with prostitution.

14

Joel Feinberg, ‘Harm to Others’ (Oxford University Press 1984).

15

Cane, supra n 13 at p 25.

16

Larson, supra n 5.

17

UNIFEM Report at p. 11; Shelagh Day, ‘Prostitution: Violating the Human Rights of Poor Women’ (June 2008).

18

Larson, supra n 5; Latoya Grindley, ‘We give valuable service – Princess the Prostitute (Pt. 2) (Jamaica Gleaner, 17 September 2012).

19

UNIFEM Report, supra n 5 at p 11.

20

Ibid; See also, “ ‘It’s all about survival’ – MoBay Prostitutes” (Jamaica Gleaner, 2 February 2016).

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Decriminalisation of Prostitution (3)

Dr. Alecia Johns

Establishing Common Ground: Reducing “Clear Harms”

While the autonomy and abolitionist camps disagree as to whether prostitution is inherently harmful and exploitative, both sides may comfortably agree that there are certain ‘clear harms’ associated with prostitution which warrant meaningful discussion on law reform, including but not limited to: a. b. c.

violence against, and exploitation of, sex workers; human trafficking; and HIV/AIDS vulnerability.

A human rights approach, which is founded on the inherent human dignity of all persons, including the sex worker, demands that there is a duty on the state to seek to minimize harms to this vulnerable group regardless of the ‘nature’ or current ‘legal status’ of prostitution. As Jane Larson notes, “Arguments about the “essential nature” of prostitution … have reached an impasse without changing the experiential lives of sexual laborers. One perverse outcome of getting so caught up in the distinction between voluntary and forced prostitution is the implicit suggestion that society need concern itself only with the ‘innocent’ subjected to coercion, but not with the ‘guilty’ woman who chooses her path… A human rights policy for prostitution must address not just the means of entry into prostitution, but also the conditions of life for those already there.”21 Similarly, the 2009 UNIFEM Report notes: “The underlying assumption of this [human rights] framework is that regardless of the legal status of commercial sex work, persons engaged in sex work are entitled to security of the person, to the protection of the law, to equal and non-discriminatory access to reproductive and sexual health services, and to social policy support.”22 A human rights framework therefore allows for current laws to be assessed in order to examine whether, as currently constituted, criminal laws concerning prostitution have had adverse effects on the rights of prostitutes to security of the person, protection of the law and nondiscriminatory access to health. If there has been such an infringement, the next question to be assessed is whether the laws are a proportionate response to their stated aims. This requires an assessment of whether the benefit gained from the law is proportionate to the harm(s) done to the right in question. It is therefore important to note that a human rights approach does not necessarily demand decriminalisation. What it does demand is an examination of current criminal laws in order to assess whether there may be any reduction in harm to the rights of sex workers, while still achieving legitimate gains on the law’s aim. To this end, an evidence-based assessment of the effects of criminalisation and decriminalisation is crucial (steps 4 and 5).

Interestingly, there are some human rights advocates who are such staunch supporters of abolition that they reject any measures toward harm reduction on the basis that prostitution is so inherently coercive and exploitative that any loosening of regulation for the purpose of merely ‘minimizing harm’ is rejected as an inadequate safeguard for women’s rights.23 While 21

Larson, supra n 5, p 695.

22

UNIFEM Report, supra n 5, p 25.

23

Day, supra n 17, p 51.

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this argument may appear attractive at first blush, it is an unsatisfactory approach which falls afoul of basic human rights principles. First, on the overarching principle of proportionality, as noted above, laws must be narrowly tailored to meet their stated aim and should not unduly infringe on an individual’s rights. It is therefore incumbent on law-makers to critically examine any claims that current laws criminalising prostitution have the effect of unduly infringing on the rights of those vulnerable individuals currently engaged in sex work. Secondly, notwithstanding that the ultimate aim may be abolition, the abolitionists’ very emphasis on the coercive nature of the trade, often borne out of economic deprivation, underscores the need for protective measures to safeguard the rights of those already involved, given that their exit is unlikely to be a speedy and easy process.

(4)

An Evidence-Based Comparative Analysis on the Effects of Decriminalisation and

(5)

An Analysis of International Findings within the Jamaican Context

In examining the literature on decriminalisation, it is evident that both camps have advanced statistics and empirical evidence which favours their approach to legal regulation. Those in favour of decriminalisation argue that violence against sex workers and human trafficking decline once criminal sanctions are removed.24 Conversely, those in favour of prohibition have argued that decriminalisation only increases demand, increases human trafficking, and has little effect on violence against sex workers.25 It is therefore clear that detailed and objective comparative analysis is necessary in order to examine the likely effects of decriminalisation.

A brief review of each of the three “clear harms” in comparative perspective is outlined below, as well as an examination of the how these findings may inform domestic discourse.

[a] Violence against, and Exploitation of, Sex Workers It is often asserted that the criminalisation of prostitution leads to increased violence and exploitation of sex workers on the basis that for fear of prosecution they decline to report violent clients, they are exploited by police officers who threaten to arrest them if sexual favours are not granted, and they are coerced by pimps and malicious clients who threaten to report them as a means of exerting control.26 Interestingly, the Canadian Supreme Court effectively agreed with the assertion that criminalisation compromises prostitutes’ safety in the case of Attorney General v Bedford,27 where it held that laws which criminalised brothels, living on the avails of prostitution and communicating in public for the purposes of prostitution infringed on sex workers’ rights to security of the person. It was held that these laws made sex work less safe by prohibiting 24

Amnesty International, supra n 7; Amnesty International, ‘Q&A: Policy to Protect the Human Rights of Sex Workers’.

25

Day, supra n 17; Jessica Neuwirth, ‘Amnesty International says prostitution is a human right – but it’s wrong’ (Guardian, 28 July 2015).

26

Amnesty International, supra n 24.

27

(2013) SCC 72.

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working indoors at fixed locations in brothels, and communicating in public with clients for the purpose of screening them and negotiating safe sex practices.

The Supreme Court held further that the laws which prohibited living on the avails of prostitution were overly broad and disproportionate in that they did not distinguish between those who exploit prostitutes and those who could increase their safety and security such as legitimate drivers, managers and bodyguards. A similar argument has been raised in relation to section 23(a) of Jamaica’s Sexual Offences Act which prohibits living off the earnings of prostitution without specifying that this is limited to ‘exploitative conduct’. This point was raised in the Collective Civil Society submission to the Joint Select Committee reviewing the Sexual Offences Act in 2014.28 It is evident that within the Jamaican context, violence and exploitation remain major issues to be confronted. In one Amnesty International Report, a Jamaican sex worker recounts being harassed and abused by the police, and further being chastised and turned away when attempts were made to report violent crimes committed against her.29 While decriminalisation may assist in this regard, it would certainly not be sufficient to address the deep-rooted stigma and discrimination which many Jamaican sex workers face in seeking access to criminal justice, and otherwise. Law reform in this area must therefore be attuned to the reality that broader social programmes and policies would also be necessary in this regard.

[b] Human Trafficking While it is important not to conflate consensual adult prostitution with human sex trafficking, there is a clear connection between the two and the legal status of prostitution may invariably affect the black market of human trafficking. As international human rights lawyer Jessica Neuwirth notes, “[C]ommon sense and the economics of supply and demand dictate that demand for prostitution fuels sex trafficking to supply it: not all prostituted women are sex trafficking victims, but all sex trafficking victims are sold into prostitution.”30 The evidence is divided regarding the effect of decriminalisation on human trafficking. One prohibitionist writer, in favour of criminalisation, notes: “Denmark, where prostitution was decriminalized in 1999, has four times as many sextrafficking victims as nearby Sweden, even though Sweden's population is 40 percent larger. These conclusions are backed up by three recent studies of global databases.

All three — a World Development paper, University of Gothenburg Study and NYU School of Law report — found that decriminalizing drastically increases the demand for prostitution by reducing the associated stigma and costs.”31

28

Tenesha Myrie, ‘Collective Civil Society Submission to the Joint Select Committee reviewing the Sexual Offences Act and Related Acts’ (2014).

29

Amnesty International, “ ‘I feel scared all the time’. A Jamaican sex worker tells her story” (27 May 2016).

30

Neuwirth, supra n 25.

31

Darren Geist, ‘5 Reasons to be Wary of Amnesty’s Prostitution Policy’ (Rolling Stone, 1 June 2016).

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It is argued that this increased demand leads pimps to resort to sex trafficking when voluntary prostitution is unable to meet the growing demand.32 On the other hand, Amnesty International, which argues strongly in favour of decriminalisation, notes the following in its policy documentation: “There is no reliable evidence to suggest that decriminalization of sex work would encourage human trafficking. But criminalization of sex work can hinder the fight against trafficking – for example, victims may be reluctant to come forward if they fear the police will take action against them for selling sex. Where sex work is criminalized, sex workers are also excluded from workplace protections which could increase oversight and help identify and prevent trafficking.

Several anti-trafficking organizations including Freedom Network USA, the Global Alliance Against Traffic in Women and La Strada International believe that decriminalization of sex work would have a positive role to play in the fight against trafficking.”33 In light of the conflicting evidence on this issue, there is a strong need for independent comparative analysis which takes into account domestic realities regarding human trafficking in order to critically assess which legal approach best safeguards against this abhorrent human rights abuse.

[c] HIV/AIDS Vulnerability Another crucial factor, relevant to sex workers’ general right to health and access thereto, as well as a broader public health concern is that of HIV/AIDS vulnerability. The evidence-based studies on this point seem to lend strong support for the view that decriminalisation assists in the fight against HIV. In the aforementioned 2009 UNIFEM Report, the position is summarised as follows: “Legalization or decriminalisation is seen as beneficial to the fight against HIV as it can provide a framework for governments to engage in the following: o o o o o o

Ensure that sex workers are empowered to negotiate condom use, improve their access to public services, and give them protection from violence and abuse.

Empower sex workers to organize for better working conditions and supportive networks Facilitate control of sexually transmitted diseases including HIV/AIDS through regular medical examinations Organise more effective HIV prevention campaigns Eliminate ‘seedy, unsafe areas’ Provide fiscal structures—licensing and registration fees, income tax and value added tax.”34

32

Ibid.

33

Amnesty International Q&A, supra n 24.

34

UNIFEM Report, supra n 5 at p 20.

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Similarly, Guideline 4 of the International Guidelines on HIV/AIDS and Human Rights recommends the following: “With regard to adult sex work that involves no victimisation, criminal law should be reviewed with the aim of decriminalising, then legally regulating occupational health and safety conditions to protect sex workers and their clients, including support for safe sex during sex work.”

These findings should equally be examined in the context of domestic and regional HIV/AIDS research and policy.

(6)

Consultative Discourse with Key Stakeholders

As noted above, after being armed with sound evidence-based assessment, it is then necessary for key stakeholders to come together in order to examine what trade-offs may be desirable, on the parties’ fixed normative positions at points (1) and (2), in order the achieve the most favourable result. Sex workers must themselves form part of this consultative process. As the UNIFEM Report rightly notes: “Participation and inclusion of those most vulnerable and negatively impacted by an exploitive system must be sought and respected as a core human rights principle in policy reform.”35

CONCLUSION The foregoing analysis has sought to provide a framework for examining whether the time is now ripe for the decriminalisation of prostitution in Jamaica. Far from providing a definitive answer to this enquiry, this paper has aimed to offer an approach by which the determination of the question may be investigated. It is hoped that this contribution will fuel further work in this area which aims to address the various questions posed. Finally, in determining the choice of regulatory regimes, it is also crucial to bear in mind that a broader, structural and multisectoral response is necessary to address the many underlying social issues which lead to prostitution and the aforementioned harms associated therewith. Any ultimate decriminalisation should therefore be understood as but one facet within a broader matrix of measures designed to address the ill-effects of prostitution and its underlying causes.

Dr. Alecia Johns O’Neal Webster October 14, 2016

35

UNIFEM Report, supra n 5 at p 25.

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