Youth Involvement in Prostitution: A Literature Review and Annotated Bibliography

2. Legislative History and Policy Responses

2. Legislative History and Policy Responses[4]

Prostitution per se is legal in Canada; buying and selling sexual services are not prohibited by legislation. However, many peripheral activities necessary to engage in the sex trade are illegal such that it is difficult to prostitute without breaking the law. The Criminal Code currently prohibits five categories of prostitution-related activities:

  1. Being found in or operating a bawdy-house.
  2. Living on the avails of prostitution.
  3. Procuring, or attempting to procure, an individual to “...have illicit sexual intercourse with another person, whether in or out of Canada.”
  4. Obtaining, or attempting to obtain, the sexual services of a youth.
  5. Communicating in public, “for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute.”

Together these laws make it virtually impossible to practice prostitution without running afoul of the law. As Lowman (1992: 78/79) notes:

[t]he prostitute has been legislatively encircled; prostitution is permitted as long as it is not practiced. It is virtually impossible to conceive of a location where prostitution can occur on a regular basis without one of the parties to the act risking criminal prosecution.

Throughout the twentieth century in Canada various special interest groups have provided the impetus for combating prostitution and for enacting and enforcing prostitution-related laws and implementing policies. There are examples of opponents who rejected prostitution on moral grounds because it encouraged sex outside marriage (Lowman, 1992: 70/71; McLaren, 1986). At times epidemiological concerns propelled the enactment of anti-venereal disease legislation (Backhouse, 1985: 390; Lowman, 1992: 71; McLaren, 1986). At other times, feminist groups rejected prostitution because of its exploitation of women. From the mid-seventies through the early nineties, the visibility of prostitution and its associated nuisances dominated debates (Brock, 1998; Lowman, 1992: 71).

Starting in the mid-1980s, prostitution-related policy and legislative discussions focused on the apparent increase of youth involvement in the sex trade. The discovery of youth prostitution as a social problem inspired an unprecedented quantity of research and policy initiatives aimed at better understanding and addressing youth prostitution.[5] During this period, three major federal government responses in Canada considered – in whole or in part – youth involvement in prostitution: the Committee on Sexual Offences Against Children and Youth (the Badgley Committee, 1984) the Special Committee on Pornography and Prostitution (hereafter referred to as the Fraser Committee, 1985) and the Federal-Provincial-Territorial Working Group on Prostitution (1998).

Since the early 1990s, discussions and efforts to suppress prostitution have emphasized that young prostitutes are victims in need of protection. This philosophical shift has produced various programs and policy initiatives aimed at increasing the protection afforded to youth who are sexually exploited through their involvement in prostitution. The most recent response has been the introduction of secure care legislation in the province of Alberta, which empowers authorities to detain young prostitutes in “protective confinement,” where they receive emergency care and treatment. Other Canadian jurisdictions (e.g. British Columbia, Ontario, and Nova Scotia) are contemplating similar legislation and policy strategies.

The purpose of this chapter is to review the historical developments concerning prostitution-related legislation and law enforcement, including an examination of the various federal, provincial and municipal government policies, reports and initiatives that have helped to shape social and legal policy responses to the youth sex trade in Canada.

2.1 Early Prostitution-Related Legislation in Canada

Vagrancy laws imported to Canada from England during the mid-1800s criminalized the status “prostitute” – merely being a prostitute was sufficient to evoke a criminal charge (Backhouse, 1985: 389). A prostitute “…who could not explain her presence in a public place to a police officer (or any woman who could not give a ‘satisfactory account of herself’) was arrested” (O’Connell, 1988: 113). Police identified a “common” prostitute by issuing a warning about her suspected involvement in the sex trade, and then used it against her if a subsequent vagrancy charge was laid (i.e., the warning was used as evidence in court that the woman was indeed a common prostitute) (Lowman, 1991b: 191/192). Legislation during this period (circa 1867) did not provide special protection for young prostitutes, as “…children were seen as small adults who reached social and sexual maturity at an early age and were accordingly not entitled to special protection by the law” (McLaren, 1986: 126).

The late 1800s witnessed a marked change in the philosophical approach to prostitution. A growing concern emerged among several Canadian religious groups that an international “white slavery” trade had developed, which involved the trafficking of young women and children in prostitution. Several special interest groups lobbied the federal government to introduce legislation that would protect young women and children who were believed to be duped into a life of prostitution (Backhouse, 1985: 393; O’Connell, 1988: 115).

Prostitution, a glaring illustration of promiscuity and the commercialization of sexuality, was challenged as antithetical to the goal of harmony between the sexes. Attention was focused upon the exploitation of innocent young women who were widely believed to have been manipulated or forced into a life of prostitution (Backhouse, 1985: 393).

In general, reformers of the time wanted to protect women and children from the “…wiles of procurers, seducers and abductors by the enactment of stiff criminal law provisions” (McLaren, 1986: 135).

In 1892, the federal government introduced a series of laws to the Criminal Code aimed at protecting young women and children from “sexual predators” who led them into prostitution (McLaren, 1986: 135/36). Moreover, moral reformers expressed outrage over the sexual exploitation of women and children, and as a strategy to combat the sex trade, some Christian women’s groups threatened to publish the names of men who purchased sexual services (Backhouse, 1991: 237). Despite the claim of protecting young women and children involved in prostitution, however, laws that criminalized prostitutes continued to be enforced (McLaren, 1986: 139). Reformers wanted male exploiters punished, but when it came to enforcement it was female prostitutes who were arrested (O’Connell, 1988: 116/117; Shaver, 1994: 162).

Not only the prostitutes, but the procurers who set them up in a life of prostitution, the pimps who lived off their earnings, the owners and keepers of bawdy houses, and the men who frequented their establishments were all theoretically subject to criminal punishment. When it came time for enforce ment, however, a completely male police force and judiciary applied the statutes almost exclusively against women (Backhouse, 1985: 388).

The early 1900s witnessed renewed efforts to protect young women and children from the exploitative aspects of prostitution (McLaren, 1986: 142). Sullivan (1986: 180) notes that several child protection statutes were enacted to prevent children from entering a life of prostitution. Government officials had the power to detain children who were “wandering” or without a “settled place of abode” (Backhouse, 1991: 243) and whose parents were deemed to be involved in sexually inappropriate behaviours (Sullivan, 1986: 180). However, many youth found themselves serving lengthy prison sentences under the guise of rehabilitation:

…these rehabilitative approaches, promoted by middle and upper class women who advanced the argument that hookers were blameless for their condition, sometimes resulted in greater discrimination. It was the working class and immigrant families who found their children apprehended, and it was again the working class prostitutes who served terms in the new women’s prisons” (Sullivan, 1986: 180).

The actions of male customers and the conditions that led to youth prostitution, including male sexual socialization and female poverty, were largely ignored. In many respects, social reformers failed to recognize a young woman’s decision to enter prostitution “…in terms of the prepubescent violation of their sexuality, the menial wages and constricting and often sexually abusive environments in which they were forced to work…” (McLaren, 1986: 153). (For detailed discussions of conditions faced by young prostitutes during this period, see Nilsen, 1980 and Rottenberg, 1974.)

Concerns over the “white slave trade” in women and children surfaced at the beginning of the twentieth-century. Various women’s groups, social purists and religious organizations lobbied the federal government to enact laws to confront prostitution and criminalize the international trade of young women (McLaren, 1986: 147). In response, the government amended legislation pertaining to procuring and living on the avails of prostitution (Shaver, 1994: 128).

In 1913, the Criminal Code of Canada was amended to bolster procurement and bawdy-house laws (Larsen, 1992: 140; McLaren, 1986: 149). In part, the changes were enacted to address the short-comings of earlier laws that discriminated against females involved in prostitution (Larsen, 1992: 139/140). However, legal amendments did not alter discriminatory law enforcement practices.

Following the 1913 changes there was an increase in the number of charges for procuring, pimping and living on the avails of prostitution (Larsen, 1992: 140; McLaren, 1986: 151). Notwithstanding, it was primarily female prostitutes who were arrested. Men who purchased sexual services did so with little fear of criminal censure (Larsen, 1992: 139):

A complex of legal provisions which was designed primarily to attack exploiters of prostitutes was used predominately to harass and victimize the prostitutes themselves. True for the first time prosecutions were brought in some numbers against the procurers and pimps, but their number pales into insignificance alongside the host of women charged with vagrancy and bawdy house offences (McLaren, 1986: 151).

Interestingly, there is a scarcity of academic literature on prostitution-related legislation and law enforcement activities from the First World War to the 1960s. This is further evidenced in Lowman’s (2001) on-going analysis of prostitution-related items in the Globe and Mail, Vancouver Sun and Province from 1920 to 1975, which reveals “few items on prostitution” during this period. Lowman argues that, “…after the flurry of interest in prostitution at the beginning of the twentieth century, it was more than sixty years before prostitution became a national issue again.”

2.2 The Soliciting Law and Concerns with Youth Involvement in Prostitution

Beginning in the 1970s, the academic literature describes two main developments in attempts to confront and suppress prostitution. First, beginning with the enactment of the soliciting law in 1972, there was a growing concern with the visibility of street prostitution and its associated nuisances (Lowman, 1986). During this period, female prostitutes working on the streets faced harassment by residents and police who wanted prostitution removed from certain areas of the city. Second, starting in 1980 there was an increased recognition of child sexual abuse and exploitation cases (Hornick and Bolitho, 1992: xiv; Sullivan, 1986: 177). In response to concerns about the sexual abuse of youth the federal government convened the Committee on Sexual Offences Against Children and Youth (Badgley, 1984). Given the limited information available about youth prostitution in Canada, the committee was later mandated to carry out research on the youth sex trade (Badgley, 1984; Hornick and Bolitho, 1992; Lowman et al, 1986).

It was not until 1972 that the federal government repealed the vagrancy law and replaced it with legislation that criminalized public solicitation for the purposes of prostitution. Section 195.1 of the Criminal Code of Canada stated: “Every person who solicits any person in a public place for the purpose of prostitution is guilty of an offence punishable on summary conviction.” Under this law the section defining a prostitute as female was removed, and, at least theoretically, the actions of male customers were not excluded (cf. Boyle and Noonan, 1986: 229/30; Lowman, 1991a; 118).

Despite the gender-neutral wording of the soliciting law, the evidence suggests that prostitutes continued to be the main focus of law enforcement (Lowman, 1997: 154). In this regard, as Boyle and Noonan (1986: 264) suggest, the gender-neutral wording of the soliciting law only veiled discriminatory practices embedded in law enforcement and judicial decision making.

During this period, there was much debate in the courts as to whether a male could be charged with soliciting for the purposes of prostitution. The British Columbia courts ruled that a client could not be found guilty of soliciting, while the Ontario courts ruled they could (Lowman, 1997: 154). Amidst the confusion over the meaning and applicability of the soliciting law came a series of court decisions commonly thought to have rendered the law unenforceable (Lowman, 1997: 157). The main catalyst was the now infamous 1978 Hutt decision in which the Supreme Court of Canada determined that, for someone to solicit for the purpose of prostitution, their behaviour had to be “pressing and persistent” (Lowman, 1997: 154). Some police spokespersons argued the decision emasculated the soliciting law and therefore made it difficult to control street prostitution (Lowman, 1986: 1). The view at the time was that the number of adult and youth prostitutes working on the streets increased substantially following the court decisions (Lowman, 1986).

In contrast to the events attributed to the Hutt decision stands Lowman’s claim that, “...the evidence available does not appear to show that the Hutt decision had a significant impact on the geography of the city’s [Vancouver’s] prostitution ‘strolls’: at most it consolidated a pattern already well established” (Lowman, 1986: 2; see also, 1991). During the early 1970s prostitution had already expanded into new areas of the city:

As early as 1972, journalists were starting to talk about the problems besetting Vancouver’s West End, the most densely populated square mile in Canada, and that hitherto had not been thought of as a red light district (Lowman, 1992: 72).

Further, in 1975, three years before the Hutt decision, an investigation by the Vancouver police resulted in the closure of two prominent cabarets that acted as a place for prostitutes to meet their customers (Lowman, 1986: 8). The net effect of these closures was to displace prostitutes onto the streets (Lowman, 1992b: 73) and encourage the trade to expand into areas of the city that had not formerly contained prostitution strolls (Lowman, 1986: 8).

Similar patterns of displacement occurred in Toronto during the late 1970s when, in an effort to “clean up Yonge Street” (cf. Kinsman, 1994: 177), prostitutes were forced to turn to the streets to ply their trade (Brock, 1998: 43). Brock notes long-standing plans for a “...renewal of commercial development on Yonge Street” (1998: 32). As a result of this gentrification process, certain resident groups and politicians wanted to clear the area of several body-rub, or massage parlours – meeting places for prostitutes and their customers (Brock, 1998: 31/32). During the attack on the Yonge Street sex industry, a twelve-year-old ‘shoeshine boy’, Emanual Jaques, was found dead next to a well-known massage parlour. “Emanual Jaques had been sexually assaulted and reportedly drowned in a sink during what McLean’s described as a 12-hour orgy of abuse by homosexuals” (Brock, 1998: 35). The ensuing public panic led the police on a series of bawdy house raids that resulted in the closure of the Yonge Street massage parlours, and the subsequent displacement of prostitutes onto the streets (Brock, 1998: 43). In this regard the Jaques case was a catalyst for an already established agenda to clean-up Yonge Street (Brock, 1998: 35).

The literature therefore suggests that the Hutt decision was not responsible for the expansion of the street trade, but that the court decision acted as a timely rationale for those demanding new laws to control and suppress the street trade (Lowman, 1988: 74). Indeed, it appears that the Vancouver police stopped enforcing the soliciting law to compel legislators to enact new laws. As Larsen (1992: 173) argues, “...the Vancouver police clearly wanted tougher laws dealing with street prostitution, and it appears that their ‘hands off’ attitude was designed to instigate public pressure on politicians.” In the process, the literature notes that the police helped construct the “public nuisance problem” as being central to the street prostitution debate (cf. Kinsman, 1994: 177).