LITERATURE REVIEW OF THE INTRICACIES OF COMMERCIAL SEX AS A VICTIMLESS CRIME IN NIGERIA


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).
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