Two of the most relevant criminological theories regarding how women
slide into prostitution are the theories of general strain and labeling[1].
These theories explain the fact that most women in the sex trade do not intend
to end their career as sex workers.
General Strain Theory
There is little literature on prostitution as
it relates to the general strain theory, but there is adequate literature on
juvenile delinquency and drug use, which examines the general strain theory.
The theory was first developed by Emile Durkheim in his study on suicide but
was later refined by Robert Merton and then by Ronald Agnew in the 1990s.
Agnew
in his work, “Pressured into crime” states that,
According to general strain theory, people engage in crime because they
experience strains or stressors. For example, they are in desperate need of
money or they believe they are being mistreated by family members, teachers,
peers, employers, or others. They become upset, experiencing a range of
negative emotions, including anger, frustration and depression. And they cope
with their strains and negative emotions through crime. Crime may be a way to
reduce or escape from strains[2].
The strain theory proposes that crime,
especially delinquency occurs as a result of the feelings generated by negative
relationships with others. Prostitution frequently begins in adolescence and is
considered a delinquent act. The average age of entry into prostitution, according
to Farley’s study is 15. Much of the literature on sex workers paints a
portrait of early childhood abuse, neglect and confusion.
It is important to note, that, it is the
experience and feelings of anger and frustration from failed attempts at
achievement, failure of primary relationships with caregivers, or victimization
that leads to the experience of strain[3]
How people cope with that strain appears to
be of two ways. The coping may be inner directed, with depression, or through
substance abuse to mute emotional pain. The coping may be directed outwardly,
such as violent anger, aggression etc[4].
Clearly with sex workers, the strain is mainly inner directed.
Labeling Theory
The labeling theory found its roots in the
early 1930s with studies of symbolic interactionist, conducted by George
Herbert Mead, who believed that the self was totally constructed in
relationship to others in the society. The labeling theory, however, had its
roots in a theory developed by Frank Tannenbaum in the 1930s known as the
“dramatization of evil”. The theory did not fully materialize until Howard
Becker presented it in 1960s in his groundbreaking book, “The outsiders: Studies
in the sociology of Deviance”.
Labeling has been
called one of the most prominent theories in criminology, but it has many
critics. One of the biggest criticisms is that labeling focuses on lower
classes, while ignoring white-collar crime.
Once a woman enters into prostitution, often
as a result of difficulties in childhood or her teen years, often coerced by
relatives or pimps, it is very difficult for her to exist out of this
lifestyle. This is where the labeling theory enters into the picture. Once
labeled as promiscuous, or as a sex worker by the police or peers, the road to
a normal way of life for such a person is often difficult and virtually
impossible to navigate out successfully.
The labeling theory
may apply especially in the case of transgendered prostitutes who are doubly
stigmatized both by their gender differences and their prostitution, where they
experience a “host of issues ranging from sexual identity conflict, shame and
isolation[5].
There is little
literature on point regarding labeling theory and prostitution; however, there
is a great deal of literature available regarding labeling and drug use. A more
deviant self-label at baseline predicted greater drug use in research, or
follow-up, and that gives direct support to the labeling concept of resulting
deviance.
Once self labeled, it is extremely difficult
for the labeled person to shed his or her stigma. In addition, self-label and
drug if found to be cyclical, indicates that, once adolescents categorizes
themselves as drug users after that behavoiur has occurred, they are likely to
stay stuck in that mind set and limit their associations to cohort, who engage
in like criminal behavior[6].
Natural Law Theory
The natural law theory
posits that the standards of morality are derived from or construed from the
nature of human beings. According to St. Thomas Acquinas,
The rule and measure of
human acts is reason, which is the first principle of human acts, since people
are by nature rational beings, it is morally appropriate that they should
behave in a way that conforms to this is morally acceptable[7].
In
one of his numerous articles[8],
Thomas Aquinas discusses his view on the practice of prostitution and several
issues relating to this topic. However, the main question, which raises concern
in his position on the social toleration of prostitution is his strong view on
the morality of it.
Historically,
Aquinas notes that there has been three patterns of social policy towards
prostitution. These are, toleration, prohibition and abolition, which in some
cases have been enforced simultaneously[9]. The medieval period witnessed a shift in
thinking concerning the social practice of prostitution. This shift was from
the strict condemnation and uncompromising intolerance of prostitution `by the
early church fathers.
The Religious Perspective
The
two broad religions to be considered under this are; The Christian doctrine and
the Muslim Thought.
The Christian Doctrine: The bible which is the corner stone of the Christian faith is divided into two parts, that is, the old and new testaments. The bible speaks of different types of prostitutes most especially priests and priestesses to foreign gods. The practice was strictly condemned in the bible and was prevalent in the Old Testament. The kingdom of Israel had neighbours who practiced fertility rites[10] in which prostitution constituted a major aspect[11]. God detested prostitution right from the very beginning when he destroyed the cities of Sodom and Gomorrah as recorded in the book of Genesis[12]. Prostitutes are viewed with disdain, as harlotry is strongly condemned as a demonic manifestation of pagan influence, with the bible warning against sexual union with prostitutes.
In
the new testament, the bible abhors all forms of sexual sins and called it
wickedness in the church. The Apostle Paul in his epistle to the Corinthians[13] emphasizes that that the human body is the
temple of the Holy Spirit and not for sexual sins. He stressed that the body
belongs to Christ and should not be joined to a prostitute.
The Muslim Thought: The Quran strictly abhors prostitution and all other forms of sexual perversion. It is stated that right from the beginning, Allah detested the acts of prostitution and homosexuality. In the Quran[14], the cities of Sodom and Gomorrah were destroyed because Allah had turned his back on the people due to their sinful lifestyle, which had loose sexual ideas as one of the points. Homosexuality is also not left out of issues that incur Allah’s wrath[15].
Under
the Sharia Law, sexual intercourse is meant exclusively for the married. Dating
couples and the engaged are prohibited from having any form of carnal knowledge
of each other. A person is considered a prostitute once he or she has sexual
intercourse outside the confines of marriage. The punishment for prostitution
is the hacking off of limb’s death by stoning.
Dichotomy between Law and Morality on
Prostitution.
What
is the relationship between the legal and moral perspective on prostitution?
From the inception, we can see that prostitution is morally based. The question
is, “Should the issue of morality influence the legality of a particular act?”
it was J.S. Mill’s[16]
thesis that legal coercion could only be justified for the purpose of
preventing harm to others. This view was adopted by the publishers of the Wolfenden
Report on Prostitution and Homosexuality, which observed that there was a realm
of private life which the law has no business.
The
report gave rise to a debate between Hart and Devlin. The debate was about the
legal enforcement of morality. Devlin [17] argued
that there is a public morality, which provides cement of human society. He argued
that the law, especially the criminal law, has a primary function to maintain
this public morality. The law should be brought into play by specific criminal
sanctions, which should depend upon the state or public feeling.
According
to him, conduct which causes a wide spread feeling of re-probation, a mixture of
intolerance indignation, and disgust should be suppressed by the law. He
concluded that if vice is not suppressed, the society will crumble.
To him, “the suppression of vice is as much
the laws business as the suppression of subversive activities”. Devlin’s view
received a lot of support from the House of Lords in the case of Crown v. Brown[18],
which condemned consensual and private sadomasochistic practices and held the
parties liable, despite the act being consensual.
Hart
in his argument, discussed as fantastic, the notion that all morality forms a
single seamless web, so that deviation from one part would inevitably produce destruction
of the whole. This is contestable for the mere fact that, conventional morality
may change a permissive direction, does not mean that the society is going to
be destroyed or subverted.
Devlin
assured us that there is a degree of moral solidarity in human society, which
have existed in earlier periods of our history but which is hardly discernable
today.
Hart
[19]
pointed out that the real solvent to social morality is not the failure of the
law to endorse its restriction, but rather, the operation of critical
discussion. He also admitted along with Devlin, some shared morality are
essential to human society. This he called universal values.
The Legal Perspective.
The
law is still unprepared to fully understand the issues relating to
prostitution. In some countries, prostitution carries death penalty, while it
is not so in some other countries. Different countries have their legal
attitudes towards prostitution. In Canada for example, prostitution
itself is legal but most other activities around it are not. For instance, it
is illegal to live of the avails of prostitution[20],
(the law intended to outlaw pimping).
In
Argentina,
1954, a group of catholic priests were accused of plotting against the
government. In retaliation, the government enacted several anti-clerical
measures, which included legalizing divorce and prostitution[21].
In Bulgaria,
prostitution itself is legal, but most activities around it, such as pimping
are outlawed[22].
In Sweden,
it is legal to sell sex but it is illegal to be a pimp, or buy sexual services[23].
The reason for this law is to protect prostitutes as many of them have been
forced into prostitution by someone or some economic necessity.
Norway has the same laws as Sweden. There,
prostitutes are generally viewed by the government as oppressed, while their
clients are viewed as oppressors[24].
In Netherlands,
being the client or pimp is illegal but being the prostitute is not, except if
the client is under-aged[25].
In
United Kingdom and France,
prostitution is a legitimate business, hence, prostitution and employment of
prostitutes is legal but they are regulated (with respect to health)[26].
In the United States
originally, prostitution was widely legal and was made illegal in all but two
states between 1910 and 1915. However in the 1980s, many states increased penalties
for prostitution, where the prostitute is knowingly HIV positive. Under the United States Criminal Code,
Prostitution is contained in Article 251 as
public indecency. Section 251 (2)
entitled prostitution and related
offences, sets out the required elements of prostitution and includes
sub-section: promoting prostitution, grading of offences, presumption of living
off prostitutes, patronizing prostitutes and evidence.
The crime of prostitution is defined as
follows:
1.
A petty misdemeanor, if he or she:
a.
Is an inmate of a house of prostitution or
otherwise engages in sexual activity
as a business; or
b. Loiters in or within view of any public place for the purpose of being
hired to engage in sexual activity.
“Sexual activity” includes homosexual and other deviate
relations. A house of prostitution” is any place where prostitution or
promotion of prostitution is regularly carried on by one person under the
control, management or supervision of another. “An inmate” is a person who
engages in prostitution. “Public Place” means any place to which the public or
any substantial group thereof has access.
2. Promoting prostitution
A person who knowingly
promotes prostitution of another commits a misdemeanor or felony as provided in
subsection
3.
Constitute promoting prostitution.
The
following acts shall, without limitation of the foregoing, constitute promoting
prostitution:
(a) Owning, controlling, managing, supervising or
otherwise keeping, alone or in association with others, a house of prostitution
or a prostitution business.
(b) Procuring an inmate or a
house of prostitution of a place in a house of prostitution for one who would
be an inmate.
(c) Encouraging,
including or otherwise, purposely causing another to remain a prostitute.
(d) Soliciting a person to patronize a prostitute;
or procuring a prostitute to a patron.
(e) Transporting
a person into or within a state with purpose to promote that person’s engaging
in prostitution, or procuring or paying for transportation with that purpose.
(f) Leasing or
otherwise permitting a place controlled by the actor, alone or in association
with others, to be regularly used for prostitution or for promotion of
prostitution or failure to make reasonable effort to abate such use by ejecting
the tenant, notifying law enforcement authorities, or other legally available
means.
(g) Soliciting,
receiving or agreeing to receive any benefit for doing or agreeing to do
anything by this subvention.
Grading of Offenses under Subsection (2)
An offense under subsection
(2) constitutes a felony if:
(a)
The offenses fall with paragraph
(a), (b), or (c) of subsection (2).
(b)
The actor promotes prostitution of a child under 16, whether or not he is aware
of the child’s age.
(c)
The actor promotes prostitution of
his wife, child, ward or any person for whose care, protection or support, he
is responsible. Otherwise, the offense is a misdemeanor.
(4) Presumption from living
off prostitutes.
Person other than a
prostitute or the prostitute’s minor child or other legal department incapable
of self support, who is supported in whole or substantial part by the proceeds
of prostitution is presumed to be knowingly promoting prostitution in violation
of the subsection.
(5)
Patronizing prostitutes
A person commits a violation
if he hires a prostitute to engage in sexual activity with him or if he enters
or remains in a house of prostitution for the purpose of engaging in sexual
activity.
(6) Evidence
On the issue of whether a
place is a house of prostitution, the following shall be admissible evidence; Its
general repute, the repute of the person who resides in or frequent the place,
the frequency, timing and duration of visits by non-residents.
To be guilty of
prostitution, a crime that will affect primarily women, is to be guilty of
petty misdemeanor under the code. A petty misdemeanor is defined as an offense
punishable by imprisonment for a maximum of less that one year. To be guilty of
patronizing a prostitute, a crime that will primarily affect men, is to be
guilty of a violation. A violation is
defined as punishable by fine or fine and forfeiture or other civil penalties.
The code specifically provides that conviction of a violation shall not give
rise to any disability or legal disadvantage based on conviction of a criminal offense.
In Nigeria,
criminal law is guided by the criminal and penal code. Chapter 21 of the
Criminal code provide for offenses against morality. Prostitutes are mentioned
in Section 222A as whoever, having the custody, charge or care of a girl under
the age of sixteen years, causes or encourages the seduction or unlawful carnal
knowledge. Or prostitution of, or commission of an indent assault upon a girl
who has been seduced, unlawfully carnally known, or indecently assaulted, or
who has become a prostitute. If he has knowingly allowed her to consort with or
to enter or continue in the employment of any prostitute or person of known
immoral character.
According to section 222B of the
Criminal Code,
1. Whoever, having custody, charge or care of a child or young person who
has attained the age of 4 years and under the age of sixteen years, allows that
child to reside in or frequent brothel shall be liable to a fine of one hundred
naira or to imprisonment for six months or both.
Section 225A, further provides that;
1) Every person who;
a. Knowingly lives wholly or
in part of the earnings of prostitution or
b. In any place persistently
solicits for immoral purposes, shall be liable to imprisonment for two years.
1.
Any magistrate, who is
satisfied by evidence upon oath, that there is reason to suspect that any
premises or any part of any premises are/is used by a female for purpose of
prostitution and any male person residing in or frequenting the premises is
living wholly or in part on earnings of the prostitute may issue a warrant under his hand authorities
any constable to enter and search the premises to arrest that male person.
2.
Where a male 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 movement of
a prostitution in such a manner as to show that he is aiding, abetting or
compelling her prostitution with any person or generally, shall be liable to
imprisonment for two years.
Furthermore, under Section 225B, it is stipulated that:
Whoever;
a.
Keeps or manages or assists in the management of a brothel; or
b.
Being the tenant, leasee or occupier or person in charge of any premises, knowingly permits such premises
or any part thereof to be used as a brothel or for the purposes of habitual
prostitution; or
c.
Being the leasee or landlord, lets the same or any part thereof with
the knowledge that such premises or some part thereof, are or is to be used as
a brothel, or is willfully party to the continued use of such premises or any
part thereof as brothel shall be liable.
Finally, Section 226, provides that;
Any person who,
1. Detains a woman or girl against her will in or upon any premises in
other to her, being lawfully carnally known by any man, whether a particular
man or not; or
2. Detains a woman or girl against her will in a brothel, is guilty of
misdemeanor and is liable for two years imprisonment.
The interpretation of a brothel in the criminal Code means any premises
or room, set of rooms in any premises kept for the purpose of prostitution.
The Criminology Perspective of Prostitution
It is argued that the society is faced with
the critical question of whether the criminal law should be used to regulate
activities that may be considered religious or moral, but not legal issues[27].
The problem is to define acts which should be considered criminal. The
definition of crime and its elements have been explored above, but the
explanation does not solve the problem of which behavior should be included
within those elements[28].
Sexual behaviours between consenting adults
is another area in which criminal law is used to regulate private behaviors.
Sex offence laws are designed to protect and preserve chastity, encompassing the
whole population and proscribing everything both solitary masturbation and
coitus outside wedlock called fornication. Fornication comes from the Latin
word “Fornix” and it means unlawful sexual intercourse between two unmarried
persons[29].
Fornication also means voluntary sexual intercourse between two unmarried
persons. Fornication remains a crime under the Nigerian penal code, applied in Northern Nigeria. From the look of things, criminology is
faced with the dilemma of where to place the issue of prostitution.
Victimology
Dating
back to 1880s, anything resembling victimology was simply the study of crime
from the perspective of the victim. The scientific study of victimology can be
traced back to the 1940s and 1950s. Two criminologists, Von Hentig and
Mendelsohn explored the field of victimology by creating new insight into the
topic. The are considered the fathers of the study of victimology.
New
victimologists began to study the behaviours and vulnerabilities of victims
such as the resistance of rape victims and the characteristics of the type of
people who were victims of crime, especially, murder victims. Von Hentig (1948)[30]
studied victims of homicide and stated that the most likely type of victim is
the ‘Depressive Type’ who is an easy target, careless and unsuspecting. The
“Greedy Type” is easily duped because of his other motivation for easy gain,
and this lowers his or her natural tendency to be suspicious. ‘The Wanton Type’
is particularly vulnerable to stress that occur at a given period of time in
his life cycle, i.e. a juvenile victim. “The tormentor” is the victim of attack
from the target of his or her own abuse such as, a battered woman. Victimology,
which is a subfield or area of specialization within criminology, is defined as
the:
Scientific study of
victimization, including the relationships between victims and the criminal
justice system i.e. the police and courts and correction officials and the
connection between victims and other societal groups and institutions such as
the media business and social movement[31].
A victimologist, since the
subject matter is a scientific study, (dealing on empirical data, viz:
collection and analysis) often uses surveys of large numbers of people about
the crime, that have been committed against them because official police
statistics are known to be incomplete.
Crimes Associated With Prostitution
Assault
In law, assault is a crime which involves
causing a victim to apprehend violence[32].
In Nigeria, Section 253 of the Criminal
Code Act defined assault as a misdemeanor punishable by one year imprisonment;
assault with “intent to have carnal knowledge of him or her” or who indecently
assaults another, or who commits other more-serious variants of assault (as
defined in the Act) are guilty of a felony, and longer prison terms.
Prostitutes in the course of business are
exposed to all sorts of violence. A prostitute is a frequent target of physical
and sexual assaults. From survey and research done, we can see that physical
assault is associated with prostitution. Prostitutes take physical abuses as
part of their lifestyle and they are trained to accept the situation helplessly[33].
The main perpetrators of this crime are the pimps, clients, corrupt law
enforcement agents and random strangers. Sometimes, the prostitute is assaulted
in a bid to deprive her of money (after having sexual intercourse) and
sometimes the prostitute is forced to perform different forms of degrading
sexual acts. Generally, a prostitute lives the life of hustling and the nature
of their job requires submission.
Rape
Black’s
law Dictionary defines rape as unlawful sexual intercourse with a person
(usually female) without consent. It is also termed sexual assault, sexual abuse
and sexual battery. For the offence of rape, “force” need not be a criterion.
So force, truly speaking, is not an element of rape in the commission of the
crime.
Prostitutes are the major targets of rapists,
and based on the different surveys carried out, we can see that prostitutes are
more often then not, prone to the unfortunate attack, especially where the law
is prejudicial towards them. In people v.
Berry[34]
a rape case, the court dwells on the victim’s behavior, which it characterizes
as immoral conduct. The court gave the impression that their immoral conduct is
to be blamed. In the case of wood v. Alaska[35]
(a sexual assault case), the plaintiff wanted to introduce evidence that the
defendant was a porn-star cum prostitute, the court excluded it because it
would have been prejudicial.
Murder
Prostitutes
are killed every day by serial killers, clients, pimps, fanatic religious
activities, etc. This is against the provision of section 33 (1)[36]
of the constitution which provides
that a every person has a right to life, and no one shall be deprived intentionally of his life, save in execution
of the sentence of a court in respect of a criminal offence of which he has
been found guilty in Nigeria. The
homicide rates are alarming. From time to time, serial killers and homicidal
psychopaths get away with their killing of prostitutes, basically because most
often, the disappearance are noticed immediately. Moreover, law enforcement
officers do not put much pressure in dealing with homicide cases affecting
prostitutes.
In the case of Bedder v. DPP,[37]
a prostitute called her client ‘impotent’, and was killed.
[1] http:// because
she matters.blogspot .com/2009/06/
[2] Agnew Robert, Pressured into Crime: An overview of General
Strain Theory (1st Oxford,
Oxford Press, 2007).
[3]
Neff, Joan L. Dennis E., and Waite, “Comparing Strain and Social learning
Variables”. Justice Quartely 24 (2007) pp 106-132.
[4] Ibid.
[5]
Crosby, Richard, and Nicole L. pitts. “Caught between two worlds: How
Transgenerated Women may be Forced into Risky Sex.” Journal of Sex Research 44 (2007) pp. 43-48
[6]
William R., Downs. “Control Theory. Labeling Theory, and the Delivery of
Services for Drug Abuse to Adolescents.” Adolescence
Spring (1997).
[7] Aquinas T., The Practice of Prostitution, 1991, P.1.
[8] Ibid.
[9] Ibid.
[10]
Ancient ceremonies in honour of the goddess of fertility, which involved sexual
orgies amongst priests and priestesses of the Heathen Temples.
[11] Exodus 34: 15-126, Judges
8:27b.
[12] Genesis 19:24-25.
[13] 1 Corinthians 6: 19.
[14] Qu’oran, chapter 27:
54-56.
[15] Ibid.:
[16] Llyod, Introduction to Jurisprudence, (2001) 7th
Edition, Sweet and Maxwell, p. 302.
[17] W. Thomas (1994) American criminal law. Pg 49.
[18] (1994) I.
A. C. 212.
[19] A. H. M. Jones, The Decline of the Ancient World, 1996.
[20] Matthews R., Prostitution in London (1997),
[21] www. aboutsociology. com/sociology/prostitution.
[22] Ibid.
[23]
Ine Vanwesen Beeck, “Another Decade of
Social Scientific Work on Sex, A Review of Research”, P. 242
[24] http:// www. aboutsociology .com/sociology/prostitution.
[25] Ibid.
[26] Ibid.
[27] Sue Titus Reid; McGraw
Hill Group, Crime and Criminology,
(1997) 8th ed, , p. 18.
[28] Ibid.
[29] Black’s Law Dictionary, op cit .p. 664.
[30] Von Heintig; The Criminal and His Victim, New Haven press, 1949.
[31] Andrea Karmen, “Crime
Victims: An Introduction to Vitimology,” A Journal (1990).
[32]
En.Wikipedia.Org(Wiki/Assault).
[33] Mim H. Sobert and Ayalam.
Pines, Early Sexual Exploitations as an
influence to prostitution work, (1983), p 285.
[34] People v. Berry
(1909) Ac pg. 220.
[35] 957 F. 2d 1544
[36] 1999 Constitution of the Federal
Republic of Nigeria (As Amended).
[37] Bedder v. DPP (1954) 1, WLR 119