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Alternative Law Journal |
Kirsten Edwards
Kirsten Edwards teaches law at the University of
Technology, Sydney.
The author would like to thank Jane Sanders of the
Shopfront Legal Centre, Madeleine Bridgett of SWOP, ‘John’ and
‘Carol’, the anonymous reviewer, and Andrew Lynch for their helpful
comments and suggestions.
Two recent decisions in the NSW Local Court
have highlighted a misunderstanding by some police as to the elements of the
charge of soliciting. This misunderstanding may exemplify a more fundamental
conflict between their perceived role and the law which they are employed to
enforce. The following case studies concern two incidents that occurred within
three months of each other. If they are to be regarded as common occurrences,
they demonstrate that police resources are being directed towards activity which
is neither clearly illegal nor necessarily in the public interest to
restrict.
The first case involves John.[1]
The following information is drawn primarily from statements contained in the
police brief which comprises a statement of the charge and the statements of the
police witnesses. The account, therefore, assumes the police version of events.
John was standing on the corner of Darley and Burton Streets,
Darlinghurst. Police statements described the location as ‘a well known
area for male prostitution’. He was observed to stand on the corner for
about five minutes and ‘appeared to be looking into vehicles as they drove
past’. As he started to walk down Darley St, he passed an unmarked police
car containing two plain clothes police constables. Constable Smith wound down
the window of the car as John passed. John said ‘hello’ and
Constable Smith replied ‘hi’. John then continued to walk down the
street and around the corner.
Constable Smith then approached John and
the following conversation transpired:
CS: I’m a little bit nervous because I’ve never done this before. But what is the go?
J: What do you mean?
CS: My boyfriend and I want to know what is the go.
J: You’re not the police are you?
CS: No.
J: Well it’s $65 for oral but I don’t do sex.
John was then arrested and charged under s.19 of the
Summary Offences Act 1988 (NSW) (the Act) which makes it an offence for
inter alia ‘[a] person in a public street to solicit another person for
the purposes of prostitution ... near or within view from a dwelling, school,
church or hospital’.
There is no doubt that John agreed to exchange sexual services for money.
John has in fact previously engaged in sex work, although he stated that he had
no intention of doing so that evening until Constable Smith approached
him.
The issue in John’s case, however, is not whether John is a
‘prostitute’ nor even whether he has been ‘entrapped’.
The issue is whether his conduct could be regarded as soliciting for the
purposes of prostitution.
So what is it to ‘solicit for the
purpose of prostitution?’
A fundamental starting premise is that in Australia prostitution itself, that
is, the exchange of sexual services for
payment,[2] is not
illegal.[3] For example, the Victorian
Full Court has commented ‘that the Legislature, both in England and
Victoria, has studiously refrained from making prostitution itself an
offence’.[4] John’s
conduct must involve more than an exchange of sex for money before he can be
considered guilty of an
offence.[5]
Any court when presented with a statutory provision will endeavour to
interpret the meaning using the natural and ordinary meaning of the words in
accordance with the guidance provided by the Acts Interpretation Act
1981.
The most common and often quoted dictionary definition of
‘solicit’ is contained in the Shorter Oxford English
Dictionary: ‘to accost or importune for immoral purposes’. Other
dictionary definitions use words such as ‘flaunt, pester, beg,
incite’. What can be drawn from these words is a suggestion of activity
and conduct going beyond a discussion or mere presence.
No case concerning the definition of ‘solicit’ under s.19 has
come before a NSW Superior Court. However, Jitjarden v Thompson (1995) 38
NSWLR 611 involved a charge under s.16 of the Act which prohibits the use of
massage parlours and other premises for the purpose of prostitution.
The
case suggests that the separate offence of using premises for the purposes of
prostitution does not require ‘accosting, importuning or flaunting’.
This holding, however, was made in the context of distinguishing street offences
from those involving ‘massage parlours’. Allen J states (at
613-4):
soliciting for prostitution commonly conveys an element of pestering or flaunting when used in the context of street offences and the like. In respect of those offences it is the pestering, the flaunting in public, that is the ‘more repugnant aspect’ which legislation prohibiting soliciting in streets or public places is designed to prevent or at least discourage
Allen J also makes a distinction between an offer
of prostitution and the acceptance of an offer, holding that only the former
would relevantly constitute ‘soliciting’ (at 614).
A review
of cases where conduct was found insufficient to constitute soliciting
illuminates the necessity for some overt conduct or intrusion into
privacy.
In Fingleton v Bryson (1980) 26 SASR 208 an ad was placed
in the local newspaper for a ‘discreet visiting service for mature
gentleman at home, motel, house’. A policeman rang the number, without
disclosing his identity and arranged to meet the defendant at a hotel for the
purpose of sexual intercourse. At the bar of the hotel he said to the defendant
‘I am a bit nervous, I’m from the country and I don’t know
much about this sort of thing’. She then informed him of the cost and
scope of her services. Her conduct was held to be outside the scope of
soliciting as it did not amount to ‘accost[ing] ... or an invitation to
other persons’ (at 212).
In Newman v Paties [1979] Qd R 402
a police officer rang ‘Sheeba’s Home Massage Service’ and made
an appointment for a massage. He then said ‘before we go, can I only get a
massage or can I get something else?’ The defendant replied ‘Well,
if you want you can have sex with me but it will cost you extra’. A
discussion about price ensued.
Lucas J stated (at 403):
in order to constitute soliciting by a woman there must be an active approach from the woman charged with the offence. In this case ... the moving spirit throughout the whole of the transaction was the police officer.
English and Canadian cases have also consistently required some
level of accosting or importuning to constitute
‘soliciting’.[6]
Soliciting for the purposes of prostitution was first made an offence in NSW in 1908 when a provision concerning soliciting was added to the offence in the Vagrancy Act 1902 targeting ‘idle and disorderly persons’. The precursor to s.19 of the Summary Offences Act 1988, s.8A, was added to the Prostitution Act 1979 in 1983. In the second reading speech concerning the amendment to the Prostitution Act 1979, Attorney-General Frank Walker stated:
The aim of this legislation is to ensure that persons who reside in basically residential areas are not subjected to the flagrant and unseemly aspects of prostitution, which cause severe inconvenience.[7]
This
description is consistent with the aims of similar sections in different
jurisdictions, which have been interpreted in the cases to be ‘[to] clean
up the streets, to enable people to walk along the streets without being
molested or solicited’,[8] to
prevent behaviour ‘offensive and annoying to
citizens’[9] and to prohibit a
‘contribution to public inconvenience or
unrest’.[10]
A cursory overview of relevant authority and the apparent purpose of s.19 of
the Summary Offences Act 1988 suggest that any attempt to prosecute John
would be both outside the terms of the section and contrary to legislative
policy. John’s conduct, far from being offensive, or involving accosting
and importuning, was to offer a polite greeting as he strolled past a car. His
agreement, when approached, to provide sexual services for money has never been
considered illegal conduct. The police were made aware of the case law prior to
the hearing but proceeded regardless.
John was acquitted by a magistrate
of the charge. While his claim that he was not working was doubted, the
magistrate accepted that he had merely provided information in answer to a
question and that his behaviour could not constitute soliciting for the purposes
of prostitution.
The next case does involve some conflict of evidence.
The facts, as alleged in the police brief, were that Carol had approached
their unmarked car and said ‘do you want a lady? It’s $50 for
French, $80 for French and sex and $100 for half an hour’, the police
officer stated ‘OK I’ll have French for fifty’.
Carol
was then arrested ‘for soliciting’.
Carol stated she had been walking to meet her boyfriend. A car passing by
very slowly came to a stop next to her. The driver caught her eye and smiled and
she went over to the car. The following conversation took place:
Police: Hi, how are you, are you a worker?
Carol: I do work.
Police: What do you charge?
Carol: What were you after? ... it’s $100 for half an hour and you pay for the room.
She was then arrested.
In Carol’s case the magistrate opened his decision by stating that at first glance the facts of the case — a woman in an area well known for prostitution discussing prices for sexual services — seemed obviously sufficient to base a soliciting conviction. But he then stated that the conduct must meet elements of the charge. He accepted that, on the evidence, the police officer had made the first move when he slowed down, made eye contact and smiled. The conversation that followed was a discussion as to prices. The magistrate found that Carol’s behaviour could certainly not be considered ‘accosting’ and, therefore, there was real doubt if it could ever be considered ‘soliciting’.
Obviously two incidents, albeit close together, have little significant
precedent value, nor can they be conclusive evidence of a policing trend. What
they do illustrate is both a misunderstanding by some police of legal
requirements and perhaps a more fundamental problem in the prioritisation of
police resources.
The solicitor acting for Carol was approached by one of
the arresting officers after the hearing. He informed her that the next night he
had seen Carol doing the same thing, at the same place for the same purposes and
that ‘next time [he] would lock her up’. The solicitor replied
‘lock her up for what? She’s just been found not guilty of
soliciting, she’s not doing anything wrong.’
The basis of the
police officer’s concern was that he had received complaints from
residents about undesirable ‘soliciting’ practices in the area. The
solicitor’s answer gets to the core of the problem: there was no
soliciting. Residents complain about many things, especially the congregation of
young people in any area, but that does not make those practices
illegal.
The areas where police regularly patrol for soliciting, such as
Kings Cross, Darlinghurst, Canterbury and Surry Hills, require policing for a
number of genuinely illegal activities — ranging from violent offences and
robberies to minor theft and vandalism. Despite the difficulty of obtaining
detailed statistical information on the allocation of police
resources,[11] anecdotal evidence
from a number of sources suggests that police resources are being used to target
activity which lies on the borderline, if not well outside the scope of,
soliciting for the purposes of prostitution.
A spokesperson for Sex
Worker’s Outreach Program
(SWOP)[12] reports that a number of
sex workers have been approached by police and asked for prices. When they have
replied they have been arrested and charged under s.19 of the Act. The problem
this practice presents for street sex workers goes beyond the expense and
inconvenience of a trial. Sex workers have been unaware that this conduct cannot
be considered illegal ‘soliciting’. Many of them plead guilty to the
offence or do not raise the issue of what conduct constitutes
‘soliciting’ in their defence. Some sex workers simply assume they
will be found guilty and fail to appear at court. It is important to remember
that street sex workers are some of the most disadvantaged members of the
community, rarely represented by lawyers or appraised of their legal rights. It
is a common assumption by sex workers that police versions will be preferred to
their version in court and it is easier to accept a fine than to contest sex
work charges.[13]
The
conviction rate for those charged in NSW under s.19 of the Act was 98% in
1990-94 and 95% in 1994-97.[14] This
seems a strikingly high rate considering the obvious misunderstanding which some
members of the police have of the elements of the charge. The conviction rate
leads to the suspicion that the figures are probably more reflective of the fact
that sex workers routinely plead guilty to s.19 charges for the reasons explored
above.
This police practice of approaching street workers and asking for
prices is one of a number of concerning issues which have arisen during police
‘blitzes’ on prostitution ‘hot spots’ such as Forbes St,
Darlinghurst and Canterbury Road, Canterbury. Another practice of concern is of
the placement of ‘no loitering’ signs in Canterbury Road. This
allows police to intervene and interfere with an otherwise legitimate activity
— standing on the street.
The police ‘blitzes’ have
come as a result of residents’ complaints about the undesirable side
effects of prostitution — unseemly disposal of used condoms and
needles.[15] While it is
understandable that any resident would find this unpleasant, sex workers argue
that these problems can be adequately addressed by better provision of waste
facilities and needle disposal
bins.[16] The police blitzes merely
add to the vicious cycle of poverty whereby sex workers are compelled to go back
onto the street to pay for fines they have accumulated undertaking street sex
work.[17] SWOP also points out that
if police continue their current practices sex workers will be driven to more
dark and inaccessible areas, thus increasing the risk of violence and decreasing
their ability to insist on safe sex practices. The current cycle of police
action in response to residents’ complaints overlooks these more
fundamental and sinister consequences.
The justification for any law prohibiting the exchange of sexual services for
money is emotionally and politically charged and therefore unlikely to be easily
resolved. But if these laws are to exist at all in NSW, police resources should
be focused on conduct that Parliament has decided as most meriting attention. It
has been pointed out that s.19 of the Summary Offences Act 1988 has never
been used to charge a client of a sex worker, despite being equally
applicable.[18] Sex work will
continue to exist while there is demand from clients. Furthermore, provisions
designed to capture exploitative conduct such as living off the earnings of
prostitution attract a higher penalty, suggesting that they are regarded as more
serious.[19] Yet between 1990-1997
there were 4472 appearances in local courts by people charged with
‘soliciting’ under s.19, resulting in 4092 convictions. In contrast,
there were just 50 appearances for people charged with ‘living off the
earnings of prostitution’ and 35
convictions.[20]
Sex workers
may be the most visible dimension of the trade in sexual services but they are
typically the most vulnerable. Practices used by the police to remove them are
both contrary to principles of law and contrary to the purposes underlying the
law.
References
[1] All names in this article are
fictional.
[2] See s.3(1) of the
Summary Offences Act 1988
(NSW).
[3] Bridgett, Madeleine,
‘Sex Work and Myths’, (1999) 7 Policing Issues and Practice
Journal 39 at 41.
[4]
Barrington v Rochford [1926] VLR 492 at
495.
[5] This approach seems to be
based on the philosophy exemplified by the Wolfenden Report (the Report of the
Committee on Homosexual Offences and Prostitution 1957) that the criminal law
should regulate aspects of sexual behaviour only where it causes harm or offence
to society and remove itself from private
matters.
[6] See Ex parte
Langley (1953) 70 WN 217, Weisz v Monahan [1962] 1 WLR 262, Hutt v
The Queen (1978) 82 DLR(d)
95.
[7] NSW Parliamentary Hansard,
Legislative Assembly, 29 March 1983, at
5243.
[8] Behrendt v
Burridge [1972] 1 WLR 29 concerning s.1(1) of the Street Offences Act
1959 (UK).
[9] Fingleton v
Bryson (1980) 26 SASR 208 at 211 concerning s.25 of the Police Offences
Act 1953-1979 (SA).
[10]
Hutt v The Queen (1978) 82 DLR (2d) 95 at 102 concerning s.195(1)
Criminal Code
(Canada).
[11] Such information
cannot be obtained from the NSW Bureau of Crime Statistics and Research. A
written request must be made to the Police Service itself. At the time of
writing the author is still waiting on approval for a request for this
information.
[12] Interview with
Madeleine Bridgett, Project Officer for the Sex Workers Outreach Project in
Australia, 19 December 1998; for police conduct towards sex workers see also
Madeleine Bridgett ‘Sex Work, Feminism and Violence — The Need for
Law Reform’, 1998 unpublished SWOP paper; Treleaven, Jane, ‘Sex
Workers and Sexual Assault — A National Perspective’, Proceedings of
the National Conference on Sexual Assault, 1996,
p.298.
[13] Interview with Jane
Sanders, Senior Solicitor of the Shopfront Legal Centre, Kings Cross, 25 March
1999; Interview with Madeleine Bridgett, Project Officer for the Sex Workers
Outreach Project in Australia, 19 December 1998; interviews with a number of
street sex workers who preferred to remain
anonymous.
[14] Brown, D.,
Farrier, D., Neal, D., Weisbrot, D., Criminal Laws, 2 edn, Federation
Press, 1996 at 1010.
[15]
Discussion with two Kings Cross police officers who preferred not to be named,
on 11 September 1998 and 25 March
1999.
[16] The increased presence
of disposed needles in residential areas has been directly linked by SWOP to the
closure of ‘shooting galleries’ in Kings
Cross.
[17] See Treleaven, Jane,
‘Sex Workers and Sexual Assault: A National Perspective’ Proceedings
of the National Conference on Sexual Assault,
1996.
[18] Brown, D. and others,
above, p.1010. In fact it is arguable that some police conduct in approaching
sex workers would come close to the provisions of s.19
‘soliciting’.
[19]
Australia is a signatory to the UN Convention on the Elimination of All Forms of
Discrimination Against Women which includes Article 6 ‘Parties shall take
all appropriate measures, including legislation, to suppress all forms of
traffic in women and exploitation of prostitution of
women’.
[20] NSW Bureau of
Crime Statistics and Research 1999; Brown, D. and others, above, p.1010.