Our
literature review will entail the consideration of the following prevalent
subject matters. They are:
·
Commercial Sex
·
Crime
·
Victim
·
Victimless crime
·
Prostitution
·
Types of prostitution
Commercial Sex
Commercial sex is described as
sexual intercourse in exchange for remuneration. The widely acclaimed coinage
for the trade is the term prostitution. The Black’s Law Dictionary defines
prostitution as the act or practice of engaging in sexual activity for money or
its equivalent.
The English word “Whore” referring
to female prostitutes is taken from the old English word, “Hora” meaning “to
like or desire” but the word is presently considered prejorative or demeaning.[1] Prostitutes and their
clients represent both sexes and all sexual orientations.
Prostitution
is rejected by many religions as being improper or sinful and prostitutes are
considered repugnant individuals of a shameful disposition and representing the
odious, lowest cadre of the society.[2]
Crime
Crime is an:
Intentional
act or omission of an act that violates criminal, statutory or case law and for
which the state provides punishment[3].
Paul W. Tappen
views it as;
An
intentional act or omission in violation of criminal law (statuary and case
law) without defense or justification and sanctioned by the state as a felony
or misdemeanor.[4]
Crime
is a breach of rules or laws for which some governing authorities (via
mechanisms such as legal systems) can ultimately prescribe a conviction. Crimes
may also result in cautions, rehabilitation, or to be unenforced.[5]
Individual human societies may each
define crime and crimes differently. However,
while every crime violates the laws, not every violation of the law counts as a
crime. For example, breaches of contract and of other civil law may rank as
“offences” or as “infractions”.[6]
Modern societies generally regard
crimes as offences against the public or the state, as distinguished from torts
(wrongs against private parties that can give rise to civil cause of action). However,
whether a given act or omission constitutes a crime does not depend on the
nature of that act or omission but the nature of the legal consequences that
may follow it.[7] An
act or omission is a crime if it is capable of being followed by criminal proceedings.[8]
Under
S. 243 (2)[9] A crime means,
An offence punishable on indictment or
an offense punishable on summary conviction, and for the commission of which
the offender is liable under the statute making the offence punishable to be
imprisoned either absolutely or at the discretion of the court as an
alternative for some other punishments.
Finally, crime can also be defined as:
A social harm that the law makes
punishable, the breach of legal duty treated as the subject matter of a
criminal proceeding termed criminal wrong.[10]
Thus, a legislative definition, summing up the above shows that
crime, is any culpable action or omission prohibited by law and punishable by
the state. Crimes are distinctively drawn into two categories and they are:
·
Malum
in se, meaning a crime or an act that is inherently
immoral, such as murder, arson or rape, also termed malum perse.
·
Malum
prohibitum, meaning an act that is a crime merely
because it is prohibited by statute although the act itself is not necessarily
immoral, such as gambling homosexuality and prostitution.
This distinction is important
considering that Nigeria’s
regulation of crime is governed by the Criminal or Penal Codes, which embraces
two categories of crime. For example, alcohol consumption and adultery, which
are crimes under the Penal Code, are not under the Criminal Codes. The
implication of this is that, the law decides from the time to fix the
demarcation and acknowledge what actually constitutes crime.
Lord Akin in the case of proprietary
Articles Trade Association v. AG for Canada[11] posits;
The domain of criminal jurisprudence
can only be ascertained by examining what acts at any particular period are
declared by the state to be crimes. The only common nature they will be found
to posses is that they are prohibited by the state and that those who commit
them are punishable.
Victim
The concept of victim dates back to ancient culture and
civilization, such as that of ancient Hebrews. Its original meaning was rooted
in the idea of sacrifice or scapegoat and the execution or casting out of a
person or criminal to satisfy a deity or hierarchy.[12]
Among cultures, the word victim has come to have additional
meanings. During the emergence of victimology in the 1940s, victimologists such
as Mendelsohn, von Hentig and wolfgang tended to use text book or dictionary
definitions of ‘victims as helpless dupes who instigated their own
victimization’
Today, the concept of victim involves any person who experiences
injury, loss or hardship due to any cause.[13] It can also be defined as
a person who suffers from a destructive or injurious action or agency.[14] A victim also means a
living being sacrificed to a deity or in the performance of a religious rite.[15] Or anyone harmed by a
crime, tort, or other wrong.[16]
A victim encourages immediate action of law. For example, when a
man’s house has been robbed or his brother murdered, he is likely to take his
complaint vigorously to the police and demand action. Victims are very
important in perceiving the nature and extent of crime.[17]
Crime without victims, on the face of it is more difficult to
handle and curtail because it is an entirely different atmosphere; here it is
only the police and law enforcement agencies that assure the initiative. These
are known as victimless crimes.
Victimless Crime
This refers to actions that have
been ruled illegal but do not directly violate or threaten the rights of any
other individual. It often involves consensual acts in which two or more
persons agree to commit a criminal offence in which no other person is
involved. For example, in the United
States, current victimless crimes include
prostitution, gambling, and illicit drug use etc[18].
The term “victimless crime” is not
used in jurisprudence but is rather used to cast doubt on the efficacy of past,
existing and proposed legislation or to highlight the unintended consequences
of the same. In politics for example, a lobbyist might use this word with the
implication that the law in question should be abolished.
Victimless crime are in the harm
principle of J.S. Mill,
“Victimless”
from a position that considers the
individual as the sole sovereign to the exclusion of more abstract bodies such
as a community or a state against which
criminal offences may be directed.[19]
One of the questions a victimologist
is prone to ask based on the intricacies of the subject matter: Is prostitution
a victimless crime?. By definition, a victimless crime is an offence that
interferes with the normative order of the society and it is also called public
order of the society or public order crimes. Examples are gambling, different
types of sexual behaviours etc[20]
It
is,
A crime that is considered to have no
direct victim, usually because only consenting adults are involved. Examples
are possession of drugs and deviant sexual intercourse between consenting
adults. Also termed consensual crime; crime without victims[21].
When
a man’s house has been robbed for example, he is likely to take the complaint
to the law enforcement agents and demand action. His presence on the scene
dramatises the need for law enforcement and gives a sense and purpose to the
work of the police and public prosecutor. In contrast, the absence of a
prosecuting witness surrounds the issue of victimless crimes with an entirely
different atmosphere. Here, it is the police who must assume the initiative. If
they attempt to work without the aid of informers, they must resort to spying,
and this spying is rendered all the more, distasteful because what is spied
upon is sordid and pitiable.
Keeping in mind, that a victim is
any one harmed by a crime, tort or wrong, prostitution is listed among crimes, though
referred to as consensual crimes. In most countries, prostitution or exchange
of financial gratification for sexual relations is legal because of the general
attitude that it does not harm, has no victims and it occurs between consenting adults.
Prostitution
Prostitution
is generally referred to as the oldest profession in the world.[22] This assumption probably
stems from the fact that it is a trade derived from sexual relations, which is
a first act of carnal and spiritual knowledge shared between a man and a woman[23].
Some jocularly remark that, if the
bible regarded as a collation of homilies, has stores of heroes that engage in
the act, then it should be the oldest profession. The enlistment of a prostitute
in the bible story recognises the profession.
For the purpose of an introduction,
“prostitution is the act of trading sexual relations between two consenting
adults for a consideration”.[24] It also means the use of
ones skill, ability etc in a way that does not show its true value.[25]
It is a trade
which has been lucrative from time immemorial. However, it is only rewarding in
terms of financial gratification, but there are risks involved in the practice
of prostitution. More often than not, the players are unwilling and are victims
rather than consenting persons. With this, factors such as vulnerability to vicious
criminals come to the fore.
According
to Farley,
Prostitution is sexual harassment, rape, battering, verbal abuse…
a violation of human rights. It causes harm to women, whether it is being sold
by one’s family, running away from home and then being pimped by one’s
boyfriend or payment of college tuition, working behind a glass in a strip
club… these are all forms of prostitution that hurt[26].
To believe that prostitution has no
victims, one must ignore these statistics published in Farley’s fact sheet.
·
78 percent of
women sought help from Council for Prostitution reported being raped at least
16 times a year by pimps and were raped 33 times a year, by clients.
·
73percent
reported having experienced physical assault in prostitution.
·
73 percent
were currently or formerly homeless.
·
92percent
stated they wanted to escape prostitution immediately.
·
83 percent of
prostitutes were victims of assault with weapon.
·
75 percent of
women, in escort prostitution have attempted suicide.
·
All of them
have at different times, been verbally abused; and
·
67 percent
diagnostic criteria for post traumatic stress.
Research and study made in San Francisco Bay Area in which 200
juveniles and adults, current and former female street prostitutes participated
as subjects, when asked why they had entered prostitution, most citied an
immediate need for money, and more than three quarter of them reported having
no option. Furthermore, more than 90% of the women came from poor backgrounds
and felt they had no option.
·
60% reported
being sexually exploited as juveniles.
·
62% reported
having been beaten while growing up.
·
50% reported
abuse of drug and alcohol.
·
92% reported
having fled from home; and
·
68% were
suffering from psychological and emotional problems.
A research done in Lagos (Saka-Tinubu, Obalende, Sanusi Fafu-nwa),
Port-Harcourt (Toby jug GRA), Ebonyi (Behind Spera n’deo Junction) and Enugu
(Beside Presidential Hostel) show that prostitutes experience the same
situation as their counterpart in other countries with regard to physical
assault, rape and other criminal activities.
These studies exhibit a pattern. The young people generating this
pattern run away from home to escape molestation and because of their history
of abuse, and loneliness, poverty and inexperience, were overtly recruited by a
pimp. These people continue to show a higher degree of victimisation. Very few
people who enter into prostitution are lured in by friends and social
connections. Moreover, these women who enter into prostitution feel they have
no other option. They are the victims of aggression and abuse. Because they are
young and have fled from their homes, it is reasonable to conclude that a vast
majority lack a high school diploma or any legitimate work experiences, so they
are technically helpless. This feeling of helplessness even makes them more
vulnerable to pimps and they are exposed to social degradation, denial,
threats, intimidation and sexual.
Working in the sex industry is not having a job you can just walk
from. It is more than work. It is a life of endurance, finding the next place
you can numb the pain for a while. Most of the women interviewed have at some
point, tried to find a way out of the sex industry.
In short, the victims of prostitution are mostly the prostitutes
themselves. It may just be that they no longer have the ability left to consent
to be a willing participant in their so-called victimless crime. Existing
services are not geared towards helping women in the sex industry, and
addressing problems they are confronted with[27].
Most of these women have been in the street, engaging in all forms of sex work
since their early teens. Their skills are limited and they do not have the
pre-requisite skills to succeed in the society.
Prostitutes are at risk of violent crime as they have higher risk
of occupational hazard than any other group of women ever studied. For example,
the homicide rate[28].
For female prostitutes, it was estimated at 204 per 100,000. However, there are
substantial differences between street prostitutes and indoor prostitutes who
work as escorts, or call girls brothels[29]
Perpetrators
of these crimes include the clients, and corrupt law enforcement officers.
Prostitutes are easy targets of rapist serial killers who use the religious and
social stigma associated with prostitutes as jurisdiction for their murder.
Generally, criminals and prostitutes are seen as undeserving of protection by
law. Thus, they are less likely than the law abiding citizens to be looked for
when and it they disappear. This makes them favoured targets by predators. In
December 2006, a serial killing of prostitutes occurred in Ipswich England[30].
In People v. Berrry,[31]
the courts opinion dwells on the victim’s behaviour and what the court
characterizes as sexually provocative conduct. The court held the impression
that her immoral conduct was to blame and therefore, deserves the consequences
of her behaviour.
A prostitute woman is seen as either
the autonomous entrepreneur in the market place who assumes the risk of her
“business” or the immoral woman who is a source of disease and corruption[32].
In either construction, she is unworthy of protection of the law. At the same
time, the purchase of the woman in prostitution is viewed as a figure to be
pitied or ridiculed and his behaviour is not assured in terms of how it might
affect the women he has purchased for sex.
The prostitutes themselves are the
victims of this evil. As a result of discriminatory practices, submissions to
another’s will in exchange for survival, prostitution when viewed in this
perspective, throws prostitutes in the light of victims. The question is: Does
allowance of the use of one’s body in exachanges for money, food or a place to
study signify consent? Or does it highlight the exploitative nature of the
transaction? In this situation, the real victim of prostitution is the
prostitute. In the case of prostitutes, girls under eighteen who had commercial
sex, are nonetheless seen as innocent victims and in need of protection[33].
The laws on prostitution punish individuals who need legal
protection[34].
For instance, where a child lives in an abusive home and finds no recourse in
the legal system and environment is a prompt reason for the child to run away.
Because escape is illegal, any legitimate act of survival will be met with
legal obstacles. Prostitution as an option remains one of the first means of survival[35].
Criminal law seeks to protect the
public from dangerous persons. In past decades, prostitution was considered a
victimless crime[36].
In the 1990s, it was transformed to a quality life crime. That is, crime that
is not wrong in itself, but interferes with the quality of life of other people[37].
In reality, no matter how supportive
people may be of sex workers, they do not want to witness solicitation in front
of their homes, on their streets corners and in front of the neighborhoods[38].
The negative impacts of prostitution also affect the wholeness of families in
multifarious ways. Some families have lost their beloved ones to prostitution.
It could be the head of the family who diverts his resources, time and
attention from his primary responsibility and directs it to a prostitute. A
family can also loose a mother, son or daughter to prostitution. In any of
these salutations, there is a moral breakdown. Prostitution is like a canker
worm eating the moral values of both young and the old, the weak and strong and
the family being the stepping stone of a society.
Another negative impact from the
liaison of a family member and prostitutes is the introduction and transmission
of HIV in the family. Many men and women have received and passed along sexually
transmitted diseases without knowing and some without even caring. It is
important to note that it is not always the prostitute that does that passing
of the sexually transmitted diseases or other form of infectious diseases. Many
people with the sexually transmitted diseases feel that they cannot have a
sexual relationship with the partner in fear of passing disease to them.
However, they find it acceptable to find a prostitute on the corner who they
will never have to meet again, and pass the sexually transmitted diseases along
in order to relieve sexual frustration. In return, he or she will sleep with
several other people before even knowing they have an sexually transmitted
diseases.Then the sexually transmitted diseases gets passed on by those people
as well. Wives, husbands and innocent sexual partners become victims to the sexually
transmitted diseases, many of which are severe and even life threatening. In
addition to passing on diseases, many
men and woman pick up prostitutes not caring about how their wife or husband at
home may feel, if they ever found out.[39]
Today our society is threatened much more by diseases and divorce related to
prostitution. Violent crimes are one of the most severe effects on society.[40]
Many prostitutes have been raped, beaten and killed over many decades and the
number continues to grow. Prostitutes are seen as weak, vulnerable and an easy
target for men to get their sexual favours and after that kill and dispose them.
Men are not the only culprit in violent prostitution related
crimes. Many prostitutes have beaten and killed their buyers as well. Many
prostitutes will rob their clients during or after the sexual acts while the
client is not expecting it. After all, they cannot call the police and tell
them they were robbed by a prostitute as prostitution is illegal.
Finally, prostitutes are seen for the ability to give men and
woman a good time by offering sexual favours for money or gifts.
Types of Prostitution
There are many types of prostitution. Below are some of them:
a.
Female
Prostitution
b.
Male
prostitution
c.
Child
prostitution
d.
Online
prostitution
e.
Street
prostitution
f.
Sex tourism
prostitution
Female prostitution: This is the most famous type of prostitution. Here, apparently, the sex worker is of the feminine gender, whether old or young, single or married.
The female prostitute can be:
i.
Homosexual
ii.
Heterosexual;
or
iii.
Bisexual
The homosexual female (Lesbian) prostitute, solicits and engages
in sexual relations with the same sex for an agreed consideration.
A heterosexual female prostitute engages in sexual activity with
the opposite sex, while the bisexual is open to consensual relationship with
both sexes.
Male Prostitution: This is the sale of sexual services by a male to either male or female clients[41]. Male prostitutes could also be homosexual or bisexual. Male prostitutes offering services to male clients are called hustlers or rent boys. Those offering to female clients i.e heterosexual male prostitutes are better known as “gigolos”. For the gigolos, financial incentives are usually the primary reason as with all forms of prostitution, though hustling may confer a sense of self worth or social status. Clientele in this regard are not restricted to homosexual men but include married men and women, single men and women, businessmen, experienced homosexuals, etc
Child Prostitution: This refers to the use of children as commercial sex workers. The definition of a child prostitute can vary depending on who is making use of the term. Under many laws, a child is defined as anyone under the age of eighteen.
The operational protocol on the sale of children, child
prostitution and child pornography to the Convention
on the Rights of a Child states that the prostitution of children is;
“The practice whereby a child is used by others for sexual activities
in return for remuneration or any other form of consideration”[42].The
remuneration or other consideration could be provided to the child or to a
patron. Generally, the prostitution of children means that a party other than
the child benefits from a commercial transaction in which the child is made
available for sexual purposes on the prompting of an exploiting intermediary
(called a “pimp”) who contends and oversees the child’s activities for profit[43].
It must be noted that a pimp is not restricted to child
prostitution. The pimp is an abusive individual who negotiates an exchange
directly with a child in order to receive sexual gratification.
Online Prostitution: This is one of the latest forms of prostitution as well as the easiest. This form of prostitution shields the identity of both parties, where explicit conversations and sometimes photographs are exchanged.
According to Siegal Larry J,
[44]
use of internet by prostitutes and customers is now common. He stated that prostitutes
may use adult boards or create a website of their own contract details such as,
email and postal addresses. Adult contact sites, chats and on-line communities
are also used. He also noted that this has brought increased scrutiny from law
enforcement agents, public officials and activist groups towards on-line
prostitution.
In 2009, Craiglist came under fire for its role in facilitating
online prostitution and was sued by some 40 US State Attorney Generals, local
prosecutors and law enforcement officials[45].
In on-line prostitution, consideration is negotiated through the use of credit
cards or money transfer. This form of prostitution is made possible due to the
access of computers and internet facilities and the development of high
technology both in electronics and communication.
The advantage of online prostitution over all other forms of
prostitution is the preservation of dignity of the participants and the
avoidance of stigma associated with prostitution in our society.
Street Prostitution: This is the most popular type of prostitution. Here apparently, the prostitute solicits customers while waiting at street corners. They usually dress in provocative, skimpy clothing, regardless of the weather.
The 2009, UN Report on TIP stated that in Russia and other countries of the former USSR, street
prostitution takes the form of an open-air market. “lot lizard” is a commonly
encountered special case of street prostitution[46]. Lot lizards mainly serve those in trucking industry at
truck stops and stopping centers. This is very evident in place like Spear
n’deo Junction in Ebonyi
State.
Sex Tourism Prostitution: The world Tourism Organization, a specialized agency of the United Nations defines sex tourism as:
Trips organized from within the tourism sector, or from outside
this sector but using it’s structures and networks with the primary purpose of
effecting a commercial sexual relationship by the tourist with residents at the
destination.
Often times, the term “sex tourism” is mistakenly interchanged
with the term, “child sex tourism”. As opposed to regular sex tourism, which is
often legal, a tourist who has sex with a child prostitute will usually be
committing a crime in the host country under the laws of his own country and
against international law.
REFERENCES
[1]
http:www.aboutsociology.com/sociology/prostitution
[2] Rollin
M. Perkins and Ronald N. Boyce, Criminal Law, 3rd ed; 1997, p. 20.
[3] Sue
Tutus Reid; Crime and Criminology, 8th ed. (MC Graw Hill
International Group, 1997) p. 4.
[4] Paul
Tappen W.J. Sanction by the State, A Journal; 2003.
[5] en.m
Wikipedia.Org.
[6] Ibid.
[7] Seaman
v. Burley (1896)2QB, at 346.
[8]
Glanville Williams, Learning the Law,
11th Edition, Stevens, 1982, p.3.
[9] Trade
Unions and Labour Relations (Consolidation) Act, 1992.
[10] Bryan
A. Garner, Black’s Law Dictionary, 8th ed. p 399.
[11] (1931)
AC. 310 at 324
[12]
Hentig, Von Hans, The criminal and his
victim, New Haven,
(ed) (Yale University press, London,
1948) p.3.
[13] Ibid.
[14]
Dictionary.Reference.com/browse/victim.
[15] www. Merriam-webster. com/../victim
.
[16] Blacks
Law Dictionary, op.cit. p. 1561.
[17] Ibid.
[18]
en.m.Wikipedia. org.
[19] J
S.Mill 0n liberty (1859). Oxford University
Press Pp 21-22.
[20] Sue
Titis Reid, Op.cit p. 18.
[21] Blacks
Law Dictionary, op.cit. p. 378.
[22] James
Jeniffer. Prostitution Microsoft student 2007, Redmond WA;
Microsoft crop 2006.
[23]
Genesis 4:1,King James Version of the
Holy Bible.
[24] Longman
contemporary English Dictionary p. 1134
[25] Ibid.
[26]
Raymond, J.G, Ten Reasons for not
legalizing prostitution and a legal Response to the Demand for prostitution,
(Haworth press, 2004.) pg 7.
[27] Debra
Boyer, “Survival sex: Helping women out”, A Report, (1993) pg 2.
[28]
Potteral et al, 2004.
[29] Ibid.
[30] Pswischmurder Investigation, Encarta 2007.
[31] 18 Cal. 3 d 509, 134 Cal.
Rptr. 415, 556 (Cal.
1976) p. 2.
[32] “Pretty
woman” Silver Screen partners/ Touch stone pictures, 1990. p.5.
[33] Faedia
Lazar Wesis, Prevention and Protection of
Girls in Juvents System, 1996. p.40.
[34] Section
647 (b) of California
Penal Code, 1872.
[35] Broken
Window/mended kids, www. Ujdp. Ncjrs. Org.
[36]
City of Seattle
police Department Crime Data. Http://Www. City of Seattle.
Net/police/Crime/stas.Htm July 18,2004.
[37]
Kay Isenin, judicial perspective on the
sex trade, enhancing police and practice through research. Vol.2 No. 17
available at http:// ncjrs. Org/pdffles/nj.pdf 2004.
[38] Hearing
on assem. Common public safety AB 1035,1995 leg.
[39]
Stephanie Manning, April 4, 2008 contributor network p.8.
[40] Voices.
Yahoo. Com.
[41] http:// www. About
sociology.com/sociology/prostitution
[42] Article 2 (6)
[43] Nguyen
N; op cit p.4
[44]
Amazon.Com: Siegal Larry J,
[45] UN
Report on Trafficking In Persons, 2009
[46] Siegal
Larry J. (2005). Criminology: (2nd edition).