Nadine atkinson flowers the private dancer by Jambar

The Private Dancer â&#x20AC;&#x201C; Discrimination, Human Trafficking or Regulation?

NADINE ATKINSON-FLOWERS

The Private Dancer – Discrimination, Human Trafficking or Regulation? Nadine C. Atkinson-Flowers, Attorney-at-Law “She’s a private dancer, a dancer for money and any old music will do . . . ” ABSTRACT There are laws against prostitution in Jamaica yet sex work/prostitution occurs throughout the country. The appearance is of either legality or at least semi-legality. There is no necessary correlation between the existence of criminal law provisions and effective control of prostitution as we are seeing. There are therefore several questions for consideration. Are the Acts then to be seen as solely criminal sanctions, institutionalizing discriminatory practices, in that they seek to prevent women from earning their livelihood? Is it that the legislation exists really to support efforts to suppress the scourge of human trafficking? Finally, should there be decriminalization/regulation of sex work/prostitution as obtains in other jurisdictions and if so to what extent because regulation and even simple legalization may still carry many problems.

AUTHOR BIOGRAPHY Nadine C. Atkinson-Flowers is an Alumnus of St. Andrew High School for girls and the University of the West Indies as well as the University of London. She is a former Clerk of Court at the Corporate Area Resident Magistrate Court (Criminal Division) Half Way Tree, Crown Counsel at the Office of the Director of Public Prosecutions and subsequently engaged in private practice, practicing in several areas including criminal defense and civil litigation. She has appeared in the Court of Appeal, the Supreme Court and the Parish Courts over the years. She is the author of three text books on Caribbean History and currently has a publication focusing on practices in the Parish Court slated for publication later this year. She has made presentations on various legal topics over the years to a variety of audiences. She has presented at the General Legal Council’s CLPD sessions on the topic of bail applications in the courts of Jamaica. Mrs. Atkinson-Flowers is an active member of Advocates’ Association and the Jamaica Bar Association

1. Phraseology: Private Dancers /Sex workers/ call girl/ prostitutes/ street walkers/whores/ harlot/turn tricks/hookers/courtesans/exotic dancer/go go dancer/ladies of the night/back road girl The phraseology moves from the oblique term of a private dancer which became widely known in popular culture thanks to the song titled “private dancer” by Tina Turner in 1984 which became one of her biggest hits ever. Interestingly it is argued in the Continuum Encyclopedia of Popular Music of the World volume II, Continuum Publishers, London and New York, 2003, at page 664 that “Tina Turner’s stage act played shamelessly to white men’s fantasies about black prostitutes . . .Turner assumed her alter ego of a prostitute although predictably the song itself was written by a man (Mark Knopfler). Interestingly, some sources seem to think that the song and video avert to ballroom dancing. What say you? In our Jamaican terminology is the phrase “back road” girls. I dare say that most of us here understand readily this (see article in the Jamaica Observer, Monday December 14, 2009 at http://www.jamaicaobserver.com/news/portmore-tourism-back-road-hip. )Accessed September 22, 2016 term as describing the sex workers/prostitutes on the Port Henderson Road, Portmore, St. Catherine, as “back road” girls. Biblically, in the King James Version at Ezekiel 16, verses 33 to 35 refer to “whores” and “harlot,”. In between these terms are the “massage parlour workers “ which seem to have sprung up right across Jamaica where persons can allegedly obtain sexual services of a very varied nature at “massage parlours” which are little more than sex shops. According to a 2000 ILO study on child prostitution in Jamaica, it described these particular persons as “massage parlour workers” and that they “were all females between 15 and 18 years of age . . . Most had secondary education and were therefore the most educated child sex workers. . . the girls were required to be willing to have intimate sexual relations with clients as a condition of employment.” (see Leith L. Dunn, Child Prostitution in Jamaica, ILO Rapid Assessment, 2000 Executive Summary, page 10 at www.ilo.org/wcmsp5/groups/public ) The go-go dancer (often called the exotic dancer elsewhere) in Jamaica is also synonymous with someone who sells her sexual favours, she gets no respect and it is hard to find someone who believes that such a dancer does not sell sex (Ibid, page 10). Who remembers the movie Independence Day, when Will Smith is told by his army friend that he will never get promoted if he marries an exotic dancer (Vivica Fox). The idea clearly is that she cannot be an exotic dancer if she doesn’t sell sex and such a woman is of ill repute and cannot be the wife of an army officer. The movie Pretty Woman with Julia Roberts and Richard Gere, remains for many reasons, one of my all time favourite movies. The scene where Julia Roberts is accosted by Richard Gere’s friend and when she refuses his advances he says to her you are a “--- ” clearly meaning that she should take all comers as in her profession she had no right of refusal. 2

And finally in this section, right here in Jamaica is the 2013 play Ladies of the Night, by playwright Patrick Browne where in one scene, one of the characters ( ) in response to the question by her male friend ( )who hitherto had been in the dark about her line of work wistfully asks her: “wha kind a work you really do?” to which she replies, “Me is not a teacha, I sell, me,” and rounding this out is the perhaps ubiquitous picture of women on the Port Henderson road, our own sex workers or “back road girls”, who seem to be the poster child for prostitution taking place across the parishes. All of these terms (and some others) are in the vocabulary and also appear in the literature about this group of women and so we now examine the legislation locally regarding the topic and the attendant nomenclature. 2. The legislation in Jamaica Definition of prostitution None of the legislation featured below which discuss prostitution provide a definition. It appears that it is taken for granted that we all know what it is. "The ordinary meaning of prostitution (emphasis added) is 'the offering of the body to indiscriminate lewdness for hire'. " This was the pronouncement by Gibbs J of the High Court of Australia in the case of Samuels v Bosch (see [1972] HCA 46; (1972) 127 CLR 517 at p.524.) According to Black’s Law Dictionary prostitution is defined as “common lewdness; whoredom; the act or practice of a woman who permits any man who will pay her price to have sexual intercourse with her” (see www.lawdictionary.org featuring Black’s Law Dictionary online 2nd ed). A search of local law reports elicited no case that gave any guidance on the definition so the author travelled a bit further afield and special thanks to my Learned friend Mr. Jeremy Taylor, Senior Deputy Director of Public Prosecutions who gave invaluable assistance regarding case law for this paper. Selected case law defining prostitution In Karen Patricia Begley v SA Police according to Lander J in the Supreme Court of South Australia for prostitution to exist (see (1995) 66 SASR 514 [1995] SASC 4995 (10 March 1995) at 97-99): What is necessary to be proved is not necessarily an act of intercourse, but that the person charged has offered his/her body commonly for lewdness. Any act of prostitution must contain an element of sexual gratification for reward. The behaviour must be lewd as opposed to merely indecent. An act of prostitution will occur when a person indiscriminately or 3

Commonly offers his or her body for the sexual gratification of another person for reward. Attention is drawn to the gender neutrality of the Learned Justice’s analysis which illustrates that country’s position from as far back as 1995 on who can be considered a prostitute, indicating that what was once considered the domain of women had been infiltrated by men. In Regina v McFarlane ([1972] HCA 46; (1972) 127 CLR 517 at p.524), the Court of Appeal of England, recognized fully that prostitution could be broadly contemplated based on the circumstances and in this instant case, the appellant’s wife who offered sexual services, took the money and then reneged on the illicit arrangement. The appellant was charged with living on the earnings of prostitution and appealed his conviction. His argument was that the wife’s very action of not following through meant she was not a prostitute and that he could not be guilty of the offence! She had testified that apparently she was not a prostitute but rather, in the language of the street, a “clipper”. The latter literally tricked men into paying for sexual favours but did not do those favours. The judge adjudged her a prostitute offering her sexual favours for coin. The judge further made no distinction between the two terms. The Learned Lord Chief Judge, Lord Gosford wrote the judgement and concurred: …the distinction between 'clippers' and 'hookers' is immaterial. For a man to live off the earnings of a woman who offers sexual services, takes the money and then reneges on the offer, if she does, is in our view to live off the earnings of prostitution, or, as it used to be termed, immoral earnings. Indeed, most people would consider such earnings doubly immoral. This appeal is dismissed. Specific Jamaican legislation that examine aspects of prostitution Initially the major piece of legislation regarding prostitution was the Offences Against the Person Act. However, subsequent to the enactment of the Sexual Offences Act, the various provisions in the Offences Against the Person Act were repealed and replaced therein. -

Premises or part thereof used as a brothel or for the purposes of habitual prostitution and house of prostitution

Therefore, now, under the Offences Against the Person Act, it is mainly at section 68 that there is reference to prostitution. Under the section, search warrants may be issued where it appears that there is reason to suspect that premises of part thereof is “used as a brothel or for the purposes of habitual prostitution”. However, there is no definition either in the Act or the section therein of the terms “prostitution” or “brothel” and makes reference only to the officers being able to seize items that would be evidence of the commission of any offence of an obscene or immoral nature. Under the Sexual Offences Act, at section 2, a “house of prostitution means a building, enclosure or place that is used for the purpose of prostitution.” But notably, there is no definition of the term prostitution in this legislation either.

The growth of what is called the massage parlour in Jamaica, appear to fit the bill of a “brothel” or “house of prostitution” and the trend internationally is that such parlours are really nothing more than thinly disguised brothels or sex shops. In countries such as Cambodia, there is some evidence that the repeal of legislation governing legal brothels, drove the industry underground and it emerged as “massage parlours”. Locally, on any given day, perusal of the local newspapers will find advertisements offering what is purporting to be employment in massage parlours for girls. An online search on September 24, 2016 of Gleaner online ads for massage parlours netted under these results under “personal services” nine advertisements which these below illustrate their content and the ads would run for the period September 20 to 26, 2016 EARTH ANGEL'S Massage done by Hot & Sexy girls. COME NOW!! 39 DUNBARTON AVE. Off Eastwood Park & Molynes Road 876-429-1418 whatsapp 876-286-1001 Viagra $500, Cialis $600, Super Hard $500, German Ants $500, Herbal-V $500, Delay Spray $1,500 Kingston 433-6000 Portmore 369-7863

VIP N/Kgn Massages done by 7 girls (new faces) 879-1630 All your seductive massages. Out calls only. 846-3920. Meet Alicia for sensuous & therapeutic massages. In / out calls 5

894-7188 by appointment. The common thread in these advertisements is that for the most part, contact is via telephone, and locations are very general areas, so there is “N/Kgn” or “Kingston” or “Portmore”. There is only one physical address, “39 Dumbarton Avenue, off Eastwood Park & Molynes Road” which when investigated was an autoshop with the word “performance” in it, perhaps every pun is intended? So it is that there is a significant amount of anonymity with these advertisements which make it difficult to track persons who could be forced into doing these pseudo massages having initially been told they would be employed in legitimate enterprises. An article in the Washington Post from as long ago as 2006, titled “Time to drop the massage parlour ads” by Deborah Howell complained that on an almost daily basis the Washington Post newspaper ran ads in the sports section and even noted that earlier in the same year law enforcement had arrested dozens of persons for prostitution related offences and some of the parlours had actually advertised massages in that very week (see www.washingtonpost.com/wpdyn/article/2006/08/25. Accessed September 24, 2016). The author was involved with a case some years ago as a prosecutor, where several massage parlour workers reported to the police that they had worked in a massage parlour selling sexual favours and discovered, to their chagrin that the parlour owner was robbing them and only paying half of the money earned from clients. They simply wanted to be paid, and when they were, they disappeared, into the night, leaving behind a “menu” which included a variety of exotically named sexual positions along with the prices.

Owner / occupier of premises

Obligations regarding premises where spirit licenses are held

The Spirit Licence Act at section 56 (1) state that no person holding any licence under this Act shall knowingly permit his premises to be a habitual resort or place of meeting of reputed 6

prostitutes. The section further states that this applies, whether the object of their so resorting or meeting is or is not prostitution. Is this not discrimination? The Legislature is saying that this particular group of persons are to be excluded from these types of premises (bars, clubs, guest houses) even when they are not plying their trade, but as long as they come to the premises and are reputed prostitutes, ie known to be prostitutes. There is no exclusion of other types of groups, lawyers, for instance, who are notorious lovers, of a good lyme. This Act was amended in 2012 and the section remained, so the author submits that should an amendment be in the legislative calendar regarding this area, this is one such that merits examination. The section is however mindful of profit and goes on to say that nothing in this section shall prevent such a license holder from allowing any such persons to remain on his premises for the purpose of obtaining reasonable refreshment for such time as is necessary for the purpose. Furthermore, at sub-section (2) where the holder of any licence acts in contravention of this section he shall be liable on summary conviction before a Resident Magistrate in respect of such offence to a fine, not exceeding, in the case of the first offence, three hundred dollars, and in the case of any subsequent offence, five hundred dollars. Obviously then, the onus is on the licence holder to prevent such reputed prostitutes from gathering on his premises. Interestingly however, the fines are nominal even at the 2012 amendment and so perhaps this is one bit of legislation that is more expensive to prosecute than any returns from fines upon convictions or pleas. And at section 57 (1) of the same Act: “Any person holding a licence under this Act who shall permit his premises to be a brothel shall be liable on summary conviction before a Resident Magistrate (now Parish Judge) to a fine not exceeding ten thousand dollars. At sub-section 2, any person holding a licence under this Act who shall be convicted, whether under this section or otherwise, of the offence of permitting his premises to be a brothel shall, on proof of the fact before two Justices, forfeit his licence. This forfeiture of a spirit licence could only be done after evidence of the offence is brought before the court and since the Act does not define brothel, resort would have to be had to the case law. This is examined below. -

Detention in a house of prostitution

At section 21 (1) (b) of the Sexual Offences Act it states that anyone who detains another against his or her will in a “house of prostitution” upon conviction in a Circuit Court can be sentenced to ten years’ imprisonment. Unfortunately, there is no case law locally on what constitutes a brothel or house of prostitution so forgive the trek again across the seas. In England, In Singleton v Ellison (see [1895] 1 Q.B. 607), The charge was that the Respondent, Ellison, unlawfully kept a brothel within the borough of Preston, contrary to s. 13 91) of the then Criminal Law Amendment Act, 1885. At trial, it was proved that she occupied a house in the borough where various men came on a frequent basis, especially at night and that therein acts of

sexual liaison occurred with the men and the respondent. She was the only woman there. There was evidence of monies being paid to the woman. On appeal, Wills J held that: A brothel is the same thing as a "bawdy house" - a term which has a well-known meaning as used by lawyers and in Acts of Parliament. In its legal acceptation it applies to a place resorted to by persons of both sexes for the purpose of prostitution. It is certainly not applicable to the state of things described by the magistrates in this case, where one woman receives a number of men. The justices found that no woman other than the respondent lived at, visited, frequented, or used the house for the purposes of prostitution, and on that ground they were of opinion that it was not a brothel within the meaning of the statute, and dismissed the information. Apparently, to qualify as such the house, or premises, must at least be occupied, visited, frequented or used by more than one woman for the purpose of prostitution. This is an 1895 case when judicial thinking and societal norms were still fairly rigid yet the decision is quite liberal in its construction and so it would be interesting to see what would happen today if such a case were to come before our local Judiciary. This is especially if, as this paper is contending now may be an opportune time for the legislature to

examine the Acts touching and concerning prostitution.

The next case gives insight on judicial thinking in the High Court of Australia in 1972, about what elements had to be met for the nomenclature brothel to be met. In Samuels v Bosch [1972] HCA 46; (1972) 127 CLR 517. Menzies J said: ...prostitution is to take place away from the public place in which the woman loiters. Accordingly, the words "for the purpose of prostitution" cover meeting and making of arrangements for prostitution elsewhere than at the place of meeting. (at p521) Reading s. 27 in the light of s. 25 (b), it is clear that the word "brothel" is not limited in its meaning to the place where intercourse for money actually takes place. (at p521) Premises to which women and men resort for the purpose of arranging intercourse for money elsewhere constitute a brothel because that resorting is for the purpose of prostitution according to the generally accepted meaning of that word. It matters not that some of the men who resorted to the premises of the respondent went there only to obtain company for an evening. (at p521)

Furthermore, the premises were used by the women who, from time to time, were there for the purpose of prostitution in the sense already stated, that is, to offer their bodies to men for money. They were prostitutes and used the premises for the purpose of their trade. -

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

The Town and Communities Act also gives no definition for prostitution but at section 3r it states that “every person who shall loiter in any public place and solicit any person for the purpose of prostitution shall be guilty of an offence and shall be liable to a penalty not exceeding one thousand dollars.” At section 80 of the Offences Against the Person Act, it states that a constable can arrest, without warrant, anyone “lying or loitering in any highway, yard, or other place during the night, that is to say the interval between 7 o clock in the evening and 6 o clock in the morning . . . and whom he shall have good cause to suspect of having committed or being about to commit any felony in this Act mentioned. So then it appears that when sex workers ply their trade between these hours they will be arrested and charged accordingly but the reality is that such arrests are not done as a matter of course but appear sporadic and perhaps often in response to the current climate, as it were. So, for example is it that that such arrests are made at times when the police see an upsurge in the number of women “walking the streets, scantily dressed and unable to give a proper account of why they were out in the street. . . in the wee hours?” (see Jamaica Observer, Saturday January 23, 2016 “Clampdown on sex workers”. Accessed September 23, 2016). Or perhaps it is when unfortunately, someone has been murdered on Harbour Street, Montego Bay and police investigations reveal that that female was working as a prostitute in that and other nearby Montego Bay streets (see Jamaica Observer, Saturday January 23, 2016 “Clampdown on sex workers”. Accessed September 23, 2016). The cynic upon hearing this might say that the police turn a blind eye to prostitution but are still forced to confront it when a murder occurs in this manner. There is no definition in any of the Acts for loitering (“walking the street”, per the article) or for soliciting and so apart from giving these terms their ordinary meaning an examination of case law is useful in the discussion. “loitering” means to hang about and doing nothing in a public place (see Black’s Law Dictionary, 2nd ed.) and “soliciting” to lure or to tempt someone (se Black’s Law Dictionary 2nd ed.). Regina v Kemisha Robinson1 (1997) 34 JLR 661 is a Jamaican case and is so novel on the issues as well as the fact that it was the only case found on prostitution (the author welcomes information on others) that it is reproduced in some detail here. In a plaza in the town of Negril on November 25, 1997 at about 2.30am, the appellant was seen by a plain clothes policeman as she approached a male and touched him on his “private parts” as he sat on a motor cycle. She was heard to say “you got to come home with me tonight and make sure you have money to pay for my body”. The officer spoke her and the male person confirmed the words and action of the appellant. She was arrested and charged for soliciting prostitution. This was under section 4(1)(a) of the Tourist Board (Prescribed Areas) Regulations which read: 4.-(1) Subject to this regulation. no person shall engage in any 9

activities as a vendor(a)

in or on any street, sidewalk, park, beach or area of water adjacent to a beach;

(b)

in or on any other public place.

within a prescribed area, unless that person is the holder of a licence granted under these Regulations and such activities are carried out in accordance with the terms and conditions of that licence. Under these regulations vendor was defined in section 2 as: â&#x20AC;Śany person who(a)

sells or offers for sale, rents or offers for rent to members of the public any goods or services; or

(b)

solicits orders for. invites attention to, advertises or promotes in any manner whatsoever, any goods or services, but does not include a taxi operator or a contract car operator.

The defence rested on its no case submission and the defendant was convicted and sentenced to pay a fine of $3,000 or suffer ten days imprisonment. The fine was paid. On appeal, per Harrison, J.A at pages 5-7: The entire spirit of the statutory provisions, and in particular the Regulations is aimed at the control of and the regulating of the actions of persons involved in tourism activities, by licensing provisions and other procedural rules. The Regulations contemplate the licensing of persons involved in legitimate business activities, ancillary to the tourist trade, e.g. selling of goods and services, the operation of shops and stalls, transport services and similar activities.

Regulation is not aimed at prohibiting an offence by a "vendor" of prostitution services, who is "soliciting..." in an " area designated a prescribed area". Such services are not "carried out pursuant to a licence granted for that purpose." The said statute cannot nor did it purport to legitimize prostitution by requiring the appellant to be in possession of a licence. The fact that even the wording of the penal provision of paragraph 4 (1) (a) provides that "such person shall be guilty of a continuing offence and in respect of each day during which the offence continues shall be liable to a fine" demonstrates how inappropriate it would be if it included a reference to "soliciting prostitution." When the Tourist Board Act came into force on the 1st. day of April, 1955, Parliament must be taken to have been aware of the existence of the Town and Communities Act, which specifically provides for the offence of soliciting for the purpose of prosecution. Section 3 of the latter Act as amended by the Justices of the Peace Jurisdiction (Amendment) Act, 1995 provides: " 3. Every person who r) shall loiter in any public place and solicit any person for the purpose of prostitution, shall be guilty of an offence and shall be liable to a penalty not exceeding one thousand dollars." The prosecution of the appellant under the said Regulations was totally misconceived. The conviction was quashed. Rightly, we humbly submit. It is contended here that the rounding up of the sex workers/prostitutes in areas such as Port Henderson, St. Catherine and Montego Bay, St. James, at first blush, appears illegal and unjustified in that the Town and Communities Act requires that the persons not only have to loiter in a public place but that they also have to solicit another person for the purpose of prostitution. Whilst not being privy to the content of any of the informations laid there was nothing in the article that suggested that the police officers saw any soliciting in the manner of R v Kemisha Robinson or that contemplated in Behrendt v Burridge (see [1976] 3 ALL ER 285). In the latter, the issue was whether or not there was solicitation. Briefly, the Defendant sat in a downstairs window wearing very skimpy clothes, at night. She never spoke or otherwise communicated with 11

anyone on the outside. There was a red light illuminating her and later two men entered the house. One paid for sexual intercourse. Boreham J delivered the judgment of the Court. He found that although she had made no active approach to prospective clients by way of word or gesture, it was her presence at the window in these circumstances noted that was sufficient to constitute “soliciting” in the sense of tempting or allowing prospective clients to come in for the purpose of prostitution. This is the type of “tempting” contemplated by the Black’s Law Dictionary (supra) definition of soliciting. Furthermore, the Sexual Offences Act at section 23 (1) (b) speak to a person committing an offence, if in any place, public or private, s/he persistently solicits or importunes for immoral purposes. The police, therefore, if they were to persist in these cases might well be unable to meet the burden required by statute as illustrated through the case law. Could it be then, that these particular Acts which criminalize the behaviours related to prostitution have really only been succeeding in making law enforcement misinterpret the proof required for convictions. Furthermore, have they also led to the sex workers/prostitutes’ liberties and rights being infringed? -

Sixteen versus Eighteen. Which one?

Section 11 of the Sexual Offences Act indicates that an owner or occupier commits an offence if s/he induces or knowingly allows any child under sixteen to be upon said premises for the purpose of having sexual intercourse with any man or woman or engaging in any act with any man or woman that constitutes grievous sexual assault on said child. This is interesting as the Act speaks to a child as being anyone under the age of eighteen. This is obviously bearing in mind that the age of consent to sex in Jamaica is sixteen. In the Child Care and Protection Act at section 2, a child is defined as any person under the age of eighteen years. This author is mindful of the fact that section 8 of the Sexual Offences Act refers to a “child” as being a person under the age of sixteen years for the offence of sexual touching or interference and that the Child Care and Protection Act at section 2 a child is defined as any person under the age of eighteen years. There is therefore a crucial matter in the law which needs amendment. Furthermore, it should not be that in one Act, the Sexual Offences Act, there are two definitions for such a crucial term, in contemplation of the matter at bar, that the definition of “child” is twofold (section 2 versus section 8, albeit that the latter states that it is for that section) and that there is another Act, the Child Care and Protection Act at section 2 still relating to children that speaks of one of those definitions. Perhaps these aspects need amendment to make it either one or the other, sooner than later to prevent a possible miscarriage of justice. -

Procuration

Section 18 of the Sexual Offences Act makes it an offence for anyone to procure any other person to become, either within or outside Jamaica, a male or female prostitute. Importantly too the act of leaving Jamaica with the intent that the other person shall become a male or female prostitute, or an inmate of, or frequent a house of prostitution is also an offence. Where the act is to leave the other person’s usual place of abode in Jamaica with the intention that the other person may, for the purposes of prostitution become an inmate of or frequent a house of prostitution within or outside of Jamaica, that is also an offense. The penalty upon conviction in a Circuit Court is a fine or a maximum of ten years’ imprisonment or both fine and imprisonment (see section 36 and the Second Schedule, Sexual Offences Act. I daresay that this is the first bit of Jamaican legislation on this topic that speaks directly to the issue of the male prostitute, so obviously the law is attempting to address some current societal issues head on. I believe the question perhaps is, is it enough? -

Witholding clothing apparel or property

At section 21 (1) (b) of the Sexual Offences Act it states that anyone who detains another against his or her will in a “house of prostitution” upon conviction in a Circuit Court can be sentenced to ten years’ imprisonment. There is no provision for an alternate sentence of a fine for this offence. The offence is deemed to be sufficiently serious that at sub-section 2 the “acts that shall be deemed to detain a person are that if the offender withholds from the other person any clothing apparel or other property belonging to that other person or where such clothing apparel have been lent or otherwise supplied to the other person by the offender or at the offender’s direction, the offender threatens the other person with legal proceedings if the other person takes the clothing apparel so lent or supplied.” At sub-section 3, the Act clearly states that no legal proceedings, whether civil or criminal shall be taken against any such person who took such clothing or has same in their possession as was necessary for him/her to leave such a house of prostitution. This particular section is quite important as often there are stories of sex workers who indicate that they were told that the police would be called in to arrest them if they left the premises with clothes and other items that they were lent or given by the owners/ clients. The law is seeking to address one known ill of sex work which often gets little attention but which could offer such workers a way out of their situation when and if they choose to so do. But it may well beg the question are they even aware of this provision in the law? Those engaged in sex work in Jamaica vary from the consenting and willing adult women who enter it as a “profession” or “trade” and treat it as such to the insidious side, a child, who is under the age of eighteen years (see section 2 of the Sexual Offences Act) who cannot consent and is forced into this area by a variety of persons (friends, relatives and unfortunately even parents) who either trick or coerce them into this life. (see Leith L. Dunn, Child Prostitution in Jamaica, ILO Rapid Assessment, 2000 Executive Summary, at www.ilo.org/wcmsp5/groups/public ).

Living on the earnings of prostitution

In the Sexual Offences Act, at section 23 (1), it states that every person knowingly living wholly or in part on the earnings of prostitution commits an offence and on summary conviction before a Parish Judge can be fined $500,000 or serve a term of imprisonment of up to three years. A conviction in a Circuit Court sees a fine or to imprisonment for a term not exceeding ten years. It appears therefore that a conviction for this offence does not allow for both a fine and confinement as the sentence. Section 23 (2) of the Sexual Offences Act says if it appears that a house is wholly or in part being used for prostitution and that any person residing in or frequenting said house is living wholly or in part on the earnings of prostitution, a search and arrest warrant can be issued by the Parish Judge for such search of the house and arrest of said person. It means therefore that the defendant may well have to prove his innocence in such an offence, even as we are aware that that it is the prosecution that must prove the case beyond reasonable doubt. Obviously persons who have no “visible” means of support may well find themselves before the court for this offence if the other aspects are met. An interesting case was tried in the Home Circuit Court in late February/early March 2016 before LJ Lorna Shellie-Williams and a jury of seven, R v Nadine Pitt. The defendant was tried on an indictment with several counts, two being for living on the earnings of prostitution. The complainant testified that whilst still a minor she went to live with the defendant who dressed her in short clothes, took her to clubs, plied her with liquor and marijuana and then after she had sex with various men, the defendant took half of whatever the complainant was paid for these acts. The defendant in her unsworn statement said that the complainant engaged in the acts of her own volition. The jury returned a verdict of guilty. The case is of interest here as there appears not to have been any physical proof of the counts except for the complainant’s testimony. But it appears that the defendant was caught by subsection 3 where it states that “where a person is proved to live with, or to be habitually in the company of a prostitute, or is proved to have exercised control, direction, or influence over the movements of a prostitute in such manner as to show that the person is aiding, abetting or compelling prostitution, whether with any particular person or generally, the person shall, unless the court is satisfied to the contrary, be deemed to be knowingly living on the earnings of prostitution.” In this case, the complainant lived with the defendant, and the latter admitted that the complainant lived with her as she wanted to be free of her strict father. In essence, she stood in loco parentis to the complainant and I humbly submit that that fact could not have helped her defence. The case of DPP v Shaw (see [1961] UKHL1, [1962] AC 220) provides judicial examination of living on the earnings of prostitution in 1961 but still have great merit today. Per Viscount Simmonds, at page 2-3:

What, then, is meant by living in whole or in part on the earnings of prostitution"- It was not contended by the Crown that these words in their context bear the very wide meaning which might possibly be ascribed to them. The subsection does not cover every person whose livelihood depends in whole or in part upon payment to him by prostitutes for services rendered or goods supplied, clear though it may be that payment is made out of the earnings of prostitution. The grocer who supplies groceries, the doctor or lawyer who renders professional service, to a prostitute do not commit an offence under the Act. It is not to be supposed that it is its policy to deny to her the necessities or even the luxuries of life if she can pay for them. A person may fairly be said to be living in whole or in part on the earnings of prostitution if he is paid by prostitutes for goods or services supplied by him to them for the purpose of their prostitution which he would not supply but for the fact that they were prostitutes. It may be that cases will be equivocal . . . But a case which is beyond all doubt is one where the service is of its nature referable to prostitution and to nothing else. No better example of this could be found than payment by a prostitute for advertisement of her readiness to prostitute herself. I do not doubt that a person who makes a business of accepting such advertisements for reward knowingly lives in part on the earnings of prostitution.

Sex trafficking in persons

The Trafficking in Persons Act (Prevention, Suppression and Punishment) Section 2 indicates that: “Exploitation” includes the “exploitation of the prostitution of a person”; "exploitation of the prostitution of a person" means the “deriving by one person of monetary or other benefit through the provision of sexual services for money or other benefit by another person” and 'sexual exploitation" means “compelling the participation of a person in- (a) prostitution” . . . The legislation increased the penalties for these offences in 2013 in an effort to deter would be offenders. So then this legislation was specifically enacted to counter the evil of luring women (men and children) either from one Jamaican locale to another or cross-borders for the purpose of sexual exploitation, ie prostitution. At this juncture there is no definite data on the number of women in particular involved in prostitution. There is even less on the number who are there involuntarily. The US. State Department indicated in its 2016 Trafficking in Persons Report that Jamaica is a “source, transit and destination country for adults and children subjected to sex trafficking . . .” 15

(see www.state.gov/j/tip/2016. Page 219. Accessed September 23, 2016). The country remains at a tier two rating by the said agency regarding its minimum standards for the elimination of trafficking. The same report stated that Jamaican adults and children are subjected to sex trafficking, in the streets, night clubs, bars and private residences, throughout the country, including the resort towns. It goes on to say that traffickers in massage parlours often lure unsuspecting Jamaican women into prostitution under the false pretense of employment as legitimate massage therapists. These women’s wages are then withheld and their movements restricted. The report further noted that notwithstanding the legal structure, there were allegations of local police being complicit in prostitution rings which were coercing adults and minors into the sex trade. This information is provided as a backdrop to this section as it shows starkly what women (men and children as well, but who are unfortunately, not the main focus of this paper) may face if they either willing or unwilling become prostitutes. It is offered to acknowledge the extreme ills that attend prostitution and to assist in the examination of the question of if it is that the government was to maintain or loosen the current strictures on prostitution, would anything be different and if so how. The current provision under the legislation indicate that if a woman is being faced with the exploitation of the prostitution of a person, she can be considered as a victim and would not face prosecution in the courts for attendant offences. Obviously she would testify to the conditions as part of the court case against the person/persons so exploiting her (see R v Nadine Pitter supra). However, what if the woman is a prostitute/sex worker of her own free will? What if she has a “pimp” or a “john” who keeps her safe from possibly violent clients? Is she considered a victim under this Act? Is this an unfair discrimination against sex workers/prostitutes? -

Prohibition on entry at ports

The Immigration Restriction (Commonwealth Citizens) Act at section 4 (e) states that “any prostitute or any person who may be living on or receiving or may have lived on or received the proceeds of prostitution” is a prohibited person and will not be granted entry into the island unless he is deemed to belong to the island (see section 2(2) of the said act) or is granted an exemption by the Minister (see section 4 (2). The Act does not offer any assistance on how to ascertain that someone is “a prostitute” or someone “who may be living on or receiving or may have lived on or received the proceeds of prostitution”. It appears an Act that would require the immigration official to conduct an enquiry of the person at the port of entry and to make a subjective decision based on all the surrounding circumstances. The possibility of discrimination in such a scenario are very live. 16

The repeal of the Vagrancy Act makes prostitution semi legal. Doesn’t it?

The Town and Communities Act as noted earlier, also gives no definition for prostitution but at section 3r it states that “every person who shall loiter in any public place and solicit any person for the purpose of prostitution shall be guilty of an offence and shall be liable to a penalty not exceeding one thousand dollars.” It might be of interest to note that the fine is not very onerous and carries no custodial sentence or fingerprinting (see the Fingerprint Act) (which I am sure that many of us at the Defence Bar who had such a client would be happy to advise our clients!). This takes the discussion into the repealed Vagrancy Act and the implications thereto. The Act also did not define prostitution but at the now repealed section 4b stated that “every common prostitute who shall be found wandering in any public place and behaving in a riotous or indecent manner, or annoying passers by soliciting them is to be deemed an idle and disorderly person. Upon conviction the penalty was imprisonment with or without hard labour, for a term not exceeding two months and if again convicted as an idle and disorderly person within twelve months of a conviction for any offence under this Act, shall be liable to imprisonment, with or without hard labour for a period not exceeding nine months. Regarding the Town and Communities Act and the Vagrancy Act, a quick assessment of the two bits of legislation sees some similar language regarding this issue. Two examples suffice for our purposes. See section 2 of the two Acts, the Interpretation sections and section 3 regarding what is not to be done in thoroughfares or highways in the Town and Communities Act and section 4 of the Vagrancy Act regarding idle and disorderly persons. Since it appears that section 3r of the Town and Communities Act is reflected in section 4b of the Vagrancy Act, it would be expected that the offence and penalty would be similar. It is not, as the Town and Communities Act indicate that anyone loitering and soliciting persons for the purpose of prostitution on conviction is liable to a fine of one thousand dollars. So it would not be a farfetched view perhaps to say that with the repeal of the Vagrancy Act, with its fairly onerous penalty for prostitution, and with no similar provision under the Town and Communities Act, it appears that at the very least prostitution/sex work is operating in somewhat of a legal vacuum or maybe even a semi legal limbo of sorts. It is clear from the legislation above that prostitution in and of itself is not illegal in Jamaica, as no statute explicitly states prostitution is an offence with a conviction that carries a penalty. It is worth reiterating here that none of our statutes even define prostitution. Rather, it is that the attendant activities (all described above) which go with prostitution are proscribed and sanctioned. Sex work/prostitution is alive in Jamaica, anecdotally, from empirical studies, cases before the court, arrests by the police across the country (see Jamaica Observer, Saturday January 23, 2016 “Clampdown on sex workers”. Accessed September 23, 2016) and as per the evolving legislation to deal with its various aspects. The general literature speaks to sex work but the Jamaican legislation still uses the term prostitution as does the international legislation and related case

law. Both terms are used in this paper even as sex work/sex worker appears more palatable and politically correct. One critic has opined that “it is unfathomable why adults are still being prohibited by law from engaging in sex work…” offering that “it is crucial that going forward we decriminalize the activities relating to prostitution.” (see The Gleaner March 26, 2015, Time to decriminalize prostitution”. Is it that it is the law that has to now play catch up? Based on the foregoing, one might be forgiven to believe that sex work/prostitution is already legal or at is at least semi-legal in Jamaica. So the next section focuses on select jurisdictions where prostitution is either legal or decriminalized with regulatory frameworks. There is also some focus on available data and some trending case law internationally dealing with decriminalizing sex work/prostitution and the ramifications thereto. 2. Select jurisdictions where prostitution is either legal or decriminalized with regulatory frameworks. There is also some focus on available data and some trending case law internationally dealing with decriminalizing sex work/prostitution and the ramifications thereto. -

In The United Kingdom

The offence of loitering or soliciting for prostitution is in section 1 (1) of the Street Offences Act as amended by section 16 of the Policing and Crime Act. The offence is quite similar to the one in our section 3 ( r ) of the Town and Communities Act. It also states that the offence is made out as “persistent” if it takes place on two or more occasions in any period of three months. The Sexual Offences Act 2003 focuses on the offences of trafficking for sexual exploitation, causing, inciting and controlling prostitution, keeping a brothel, paying for the sexual services of a prostitute (which came into effect in 2010, in a bid to reduce the demand for prostitution services and also to reduce all forms of commercial sex exploitation), advertising prostitution and kerb crawling. The latter is a new offence which is at section 51A of the Sexual Offences Act whereby a person in a street or public place solicits another for the purpose of obtaining a sexual service as a prostitute. Interestingly, as noted earlier, if there a single woman in a house selling her sexual favours to a number of men, it is not prostitution (see also Gorman v Standen (1964) 48 Cr App R 30). So it is that even though in the United Kingdom, the act itself of prostitution is not illegal, the associated acts are illegal and appear likely to be for some time to come. Since most of these acts are literally necessary for the final sexual relation to occur, it seems that in effect prostitution is illegal. -

In Germany

The Act Regulating the Legal Situation of Prostitutes (Prostitution Act) came into force on 1 January 2002 in Germany (see The Act Regulating the Legal Situation of Prostitutes. Social Research Institute of Applied Science, Freiburg. www.cahrv,uni.osnabrueck.de Accessed September 24, 2016) Prostitutes may work as regular employees with contract, though the vast majority work independently. Brothels are registered businesses that do not need a special brothel licence. Notably, if food and alcoholic drinks are offered, the standard restaurant licence is required. Prostitutes have to pay income taxes and have to charge value added taxes for their services, paid to the tax office. All of these provisions would suggest that prostitutes in Germany are considerably better off than their counterparts in other parts of the world. However, earlier this year suggestions were being made for amendments to strengthen the provisions to include a minimum age to work, special licences and mandatory health examinations. It appears that Germany recognizes that prostitution is a reality that will be perhaps work better with regulation. There, the law does not operate to, in effect, make the selling of sex illegal. That is not to say that there are no problems, as there remains the more nefarious aspect of prostitution, that of sex trafficking, which according to the US State Departmentâ&#x20AC;&#x2122;s 2016 report on Germany, saw many persons, such as undocumented women becoming entangled in Germanyâ&#x20AC;&#x2122;s sex trade. These women were often from Africa, such as Nigeria and Eastern Europe (see www.state.gov/j/tip/2016. Accessed September 25, 2016). In fact, it appears that the government is currently examining amendments that would make it illegal to buy sex from women who have been forced into prostitution (see www.cbc.ca.news/world/prostitution-laws-europeans-debate Accessed September 23, 2016). -

In South Africa

The case of Jordan and Others v the State (see CCT 31/01) involved the appellants, a brothel employee and a prostitute or sex worker (and interestingly this is the only case that has used this phrase of sex worker that the author has found). They appealed to the Court their convictions under the Sexual Offences Act, that the provisions were unconstitutional. The Constitutional Court held unanimously, that the provisions relating to the keeping or managing a brothel to be valid and constitutional. The provisions relating to the criminalization of carnal intercourse for reward was also not upheld but by a majority. Interestingly, two of the learned Judges felt that the prostitution provision constituted unfair discrimination. In effect, the prostitute they argued was the primary offender and the patron seen at best as an accomplice. In so doing they argued that the law was in effect reinforcing sexual double standards and perpetuating gender stereotypes in an era and a country where advances and commitment to gender equality was a commitment. -

In Canada

This landmark judgement, Attorney General of Canada v Terri Jean Bedford, Amy Lebovitch and Valerie Scott and Between Attorney General of Ontario v Terri Jean Bedford, Amy Lebovitch and Valerie Scott (with multiple interveners) (see 2013 SCC 72) examined three main 19

issues which essentially are also area reflected in our Jamaican legislation. These were provisions against keeping a common bawdy house or brothel, living on the avails of prostitution and communicating in public for the purpose of prostitution (i.e. with clients). The Supreme Court struck down all three laws in the unanimous decision and in the 9-0 decision noted that “The prohibitions at issue do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution, they prevent people engaged in a risky – but legal – activity from taking steps to protect themselves from the risks (see # 61).” The Court also gave the Parliament a year to formulate new legislation if it so wished to replace the invalidated provisions. The Chief Justice also noted that it is not an offence to sell sex for money (see #61) and at #165 that “I have concluded that each of the challenged provisions, considered indecently, suffers from constitutional infirmities that violate the Charter” (ie the Canadian Charter of Rights and Freedom and are hence void). The final section deals with the possibility of regulation in Jamaica of prostitution and any lessons that we can take from the other jurisdictions going forward in consideration of if it is just and would augur well for justice that new legislative approaches be considered regarding sex workers. 3. The possibility of decriminalization and regulation of prostitution in Jamaica Leading off from the Attorney General v Bedford case (supra) could a viable constitutional challenge be mounted under our Charter of Fundamental Rights and Freedom relating to the various provisions concerning prostitution in Jamaica? There certainly are two powerful cases cited above that could provide at least the basis of a provocative argument. The author submits that if sex work/prostitution was to be considered for regulation in Jamaica, the following questions would need to be asked and answered (in no particular order of importance). Firstly, what has criminalization of the related aspects of prostitution achieved? The sex industry continues to thrive and unfortunately with the burgeoning internet, it goes cross-borders in seconds as when persons solicit via social media sites. From time to time prostitutes have been arrested in “sweeps” all over the island. The fact of criminalization means that prostitutes cannot legally work in a brothel, or even offer their trade in the relatively safe ways illustrated in the UK above. Secondly, what could decriminalization and regulation achieve? The police could divert resources from arresting and charging prostitutes for breaches of the Town and Communities Act. Or if the legislature felt it could not go that far, the ticketing framework of the amended Dangerous Drugs Act could be utilized. Prostitutes have anecdotally stated that they have been physically abused, raped and robbed as they ply their wares. 20

With decriminalization and regulation, they may well be more inclined to report these abuses to the police. They would possibly seek a wider scope of health services which are currently available to offer counselling and testing and if the regulations went far enough, and the trade was taxed, the funds could assist in helping women who wanted to get out and to successfully remove minors from the trade by ensuring that they had economic assistance. However, the future in Jamaica of the legislation considering prostitution will of necessity have to contemplate the views of our religious groups, the political climate at the time, the fact that there are few groupings organized that support our sex workers/prostitutes, as well as the countryâ&#x20AC;&#x2122;s international treaty obligations. The words of Viscount Simmonds, DPP v Shaw (supra) at pages 5-6 appear an apt note on which to end: In the sphere of criminal law I entertain no doubt that there remains in the Courts of Law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the State, and that it is their duty to guard it against attacks which may be the more insidious because they are novel and unprepared for. That is the broad head (call it public policy if you wish) within which the present indictment falls. It matters little what label is given to the offending act. To one of your Lordships it may appear an affront to public decency, to another considering that it may succeed in its obvious intention of provoking libidinous desires, it will seem a corruption of public morals. Yet others may deem it aptly described as the creation of a public mischief or the undermining of moral conduct. The same act will not in all ages be regarded in the same way. The law must be related to the changing standards of life, not yielding to every shifting impulse of the popular will but having regard to fundamental assessments of human values and the purposes of society.