Youth Involvement in Prostitution: A Focus on Intrafamilial Violence - A Literature Review

2. Legislative History and Development

2. Legislative History and Development

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 prostitution are illegal such that it is difficult to prostitute without breaking the law. The Criminal Code of Canada currently prohibits several 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:

the 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 (Lowman, 1992: 78/80).

Throughout the twentieth century in Canada various special interest groups have provided the impetus for suppressing prostitution and for enacting and enforcing prostitution-related laws.

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 (Lowman, 1992: 71).  From the mid-seventies through the early nineties, the visibility of prostitution and its associated nuisances dominated debates (Brock, 1998; Lowman, 1992: 71). Multifarious in origin and influence these various reformist rhetorics intersect throughout history to produce a matrix of prostitution-related legislation, law enforcement, and extra-legal initiatives to address youth involvement in prostitution.

2.1 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 were harassed 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). The committee was later mandated to research youth prostitution (Badgley, 1984; Hornick and Bolitho, 1992; Lowman et al, 1986).

2.2 The Soliciting Law

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). 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, 1991; 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, 1994: 154). Further, 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, 1994: 154).  In this regard Boyle and Noonan (1986: 264) suggest that the gender-neutral wording of the soliciting law only veiled discriminatory practices embedded in law enforcement and judicial decision making.

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, 1992: 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, 1994: 154). Some police spokesmen argued the decision emasculated the soliciting law and therefore made it difficult to control street prostitution (Lowman, 1986: 1). Perception at the time was the number of adult and youth prostitutes working on the streets increased substantially following the court decisions.

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, 1992b: 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 there were 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 evidence therefore suggests 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. Larsen (1992: 173) notes that “...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 police helped construct the “public nuisance problem” as being central to the street prostitution debate (cf. Kinsman, 1994: 177).

2.3 The Fraser Committee

Amidst concerns about the expansion of prostitution on certain streets, the federal government convened the Special Committee on Pornography and Prostitution (Fraser Committee, 1985). The Fraser Committee was instructed to ...study the problems associated with pornography and prostitution, and carry out a program of sociolegal research to provide a basis for its work (Lowman et al, 1986: xiii).  To facilitate this mandate, the Department of Justice Canada commissioned a series of reports/studies that were categorized into three groups: 1) regional studies conducted throughout Canada that examined the business of prostitution and its control. 2) A national population study that gathered opinions towards prostitution. 3) Comparative studies that examined approaches to prostitution in Europe, Asia, Arabia, South America, and the United States (cf. Sansfacon, 1984) (for Working Papers, see Crook, 1984; El Komos, 1984; Fleischman, 1984; Gemme et al, 1984; Haug and Cini, 1984; Jayewardene, Juliani and Talbot, 1984; Kiedrowski and van Dijk, 1984; Laut, 1984; Lowman, 1984; Peat Marwick, 1984; Sansfacon, 1984(a) and 1984(b)).

The Fraser Committee argued that the law failed to meet its “theoretical object” of reducing prostitution and “...instead has operated in a way which victimizes and dehumanizes the prostitute” (Fraser, 1985: 533).  The Committee called on the government to develop long-term programs to address the social and economic conditions faced by women involved in prostitution (Fraser, 1985: 525/26).

In the short-term, the Fraser Committee argued that street prostitution is not likely to disappear as long as the government refuses to identify a location for it to go (Fraser, 1985: 534; cf. Lowman, 1992a: 10). The Committee recognized the need to address the public nuisances associated with street prostitution by identifying (private) locations where prostitution could occur (Fraser, 1985: 534-540).  To overcome this problem the Committee recommended comprehensive changes to the Criminal Code, including, among other things, repealing the bawdy house laws to allow one or two prostitutes over the age of eighteen to employ themselves in a private abode (Fraser, 1985: 538) and empowering provincial governments to license “small-scale” prostitution establishments (Fraser, 1985: 546): “[t]his approach suggested that better control of the public nuisance aspects of the trade would be best facilitated by curtailing the power of the criminal law over prostitution in private places” (Lowman, 1991a: 309).

When it came to research and issues pertaining to “youth prostitution,” the Fraser Committee largely deferred to the Badgley Committee (1984). However, one notable exception was that the Fraser Committee (1985: 658/59) disagreed with Badgley’s recommendation to criminalize young prostitutes as a means of protection; the Fraser Committee argued that creating an age specific offence contradicted the spirit of the Young Offenders Act. Nevertheless, the Fraser Committee did recommend new legislation censuring the sexual procurement of a person under the age of 18 for prostitution-related purposes. In addition, the Committee encouraged the enactment of specific legislation to criminalize those who purchase, or attempted to purchase, the sexual services of youth (1985: 659):

We think it is essential that the Criminal Code contain an offence specifically framed around sexual activity for reward with a person under 18...In our opinion, a person who is even approached by an adult should be able to invoke the law enforcement process. To await the completion of the sexual activity before triggering the criminal process is to lose a substantial portion of the deterrent value of this provision...The section is directed toward the party whom we think is more likely to be the “aggressor” in the contact between the user and provider of sexual services of youth.

2.4 The Badgley Committee

Emerging at the same time as campaigns to control street prostitution, there was a growing concern about youth participation in the sex trade. The Canadian government had recently responded to fears about the sexual abuse of young people by launching the Badgley Committee (1984). “Youth prostitution” was not part of the Committee’s original mandate, however, it was added at a later date. The apparent growth of sexually exploited street youth garnered enough concern to have this issue included as part of the mandate (Lowman, 1986: 195). Released one year prior to the Fraser Report, the Badgley Report contained 52 recommendations to help confront the sexual exploitation of youth, including several conclusions and recommendations the Committee made following interviews with 229 “juvenile prostitutes” (Badgley Committee, 1984: 967). The Badgley Committee’s research data produced substantial biographical information about youth prostitutes in Canada (Clark, 1986: 106); before this, academic information concerning the dynamics of “adolescent prostitution” was mainly from the United States (for example, Weisberg, 1985). To date, the Badgley Report remains a “definitive and official source of data on the sexual abuse of children and youths in Canada” (Brock, 1998: 115).

The Badgley Committee (1984) believed that the realities of youth prostitution justified the enactment of specific legislation aimed at customers (1984: 1055/56). The Committee (1984: 1056) further argued, “...[our] findings indicate that the clients of prostitutes pose at least an equal if not greater public nuisance than do the prostitutes themselves.” As a result, they recommended legislation that would make the sexual procurement of youth an indictable offence (Badgley, 1984: 1055/56).

Besides recommending legislation criminalizing the sexual procurement of youth, the Badgley Committee argued it was necessary to criminalize young prostitutes to keep them from a life of prostitution (1984: 1046). Therefore, the Committee recommended the enactment of a specific offence for people under 18 years of age who sell sexual services (Badgley, 1984: 95).

2.5 The Federal Government’s Response to Badgley and Fraser

Following on the heels of the Badgley (1984) and Fraser (1985) Committees, the federal government initiated two important legislative changes.  First, in December 1985 they enacted a new law to confront street prostitution, and then, in January 1988, new legislation was introduced to criminalize the sexual procurement of youth.

2.6 The Communicating Law

On 20 December 1985 the federal government repealed the soliciting law and replaced it with legislation that criminalized public communication for the purpose of buying or selling sexual services. The new legislation ignored the Fraser Committee’s recommendation that there be wholesale revision of Canadian prostitution law. The revision made it clear that prostitutes and customers meeting on the streets were equally culpable under the law (cf. Lowman, 1991a: 301/302) and, by criminalizing public communications for the purpose of buying or selling sex, confirmed the federal government’s commitment to confronting visible manifestations of prostitution (cf. Lowman, 1992b: 66) thus prioritizing concerns about the public ‘nuisances’ associated with the trade.

Initial survey data about the communicating law in some Canadian jurisdictions suggested that female prostitutes continued to be punished more frequent than male clients. Various regional assessments commissioned by Justice Canada (Brannigan et al, 1989; Flieschman, 1989; Gemme et al, 1989; Graves, 1989; Lowman, 1989; Moyer and Carrington, 1989) revealed that enforcement patterns focused primarily on female prostitutes: “...data from nine of the ten Canadian cities studied indicate that more prostitutes than customers are charged and that their sentences are more severe” (quote from Shaver, 1994: 133; also see, Lowman, 1992b: 66; Lowman, 1994: 155). However, Flieschman (1989: 41) noted considerable jurisdictional differences in charge rates for customers and prostitutes; in Vancouver and Montreal, a greater number of prostitutes were charged than customers.  In Toronto the charge rates were close to equal for prostitutes and their clients. Further, youth prostitutes in Vancouver [and other jurisdictions] continued to be targets of law enforcement; in 1986 and 1987, ten percent of all communicating charges were levied against youths (Lowman, 1989: 200).

Concern also surfaced about the role of the communicating law in perpetuating violence against female prostitutes (Lowman, 1989: 203; O’Connell, 1988: 142/43). Vigorous enforcement of the new law forced female (both youths and adults) prostitutes to meet their clients in more vulnerable and secluded locations of the city so as to avoid detection by authorities (cf. Lowman, 1989: 203). Prostitutes were therefore exposed to dangerous situations because they had to meet clients in areas where there were no witnesses or police officers to help in cases where clients turned violent.

2.7 Legislating Protection - Bill C-15

The second important legislative change occurred in 1988 when the federal government introduced Bill C-15 to help address the apparent increase of sexual offences against children and youth.  The Bill was to help protect victims of child sexual abuse, raise the number of prosecutions of child sexual abuse cases, increase the severity of sentences and improve conditions for child victims and witnesses (Hornick and Bolitho, 1992: xiv; Schmolka, 1992: 2).

 “By proclamation of this Bill, the federal government sent a clear message that the protection of children and youths was a priority in Canada and that sexual abuse of children was unacceptable and would not be tolerated” (Hornick and Bolitho, 1992: xiv).

Bill C-15 included provisions that criminalized the sexual procurement of youth. Section 212(2) and (3) (living on the avails of a young prostitute under the age of 18) was amended to make it easier for police to arrest pimps, and the maximum penalty was raised from 10 to 14 years.  In addition, s.212(4) criminalized obtaining, or attempting to obtain, the sexual services of someone under the age of 18.

Uniform Crime Reports fail to differentiate between various s.212 charges, therefore it is difficult to ascertain the number of section 212(2) and (4) charges across Canada.  Nevertheless, the literature provides some commentary on the effectiveness of legislation aimed at prohibiting the sexual procurement of youth. An early sign these laws were not effective came from a mandatory evaluation commissioned by Department of Justice Canada that focused on the package of laws introduced in Bill C-15 (see, Hornick and Bolitho, 1992; Schmolka, 1992).  The executive summary pointed out that there was a lack of charges under “subsection 212(2) (living on the avails) and subsection 212(4) (obtaining for sexual purposes)” (Hornick and Bolitho, 1992: xxix).  With respect to subsection 212(4), the authors noted that charges could only be obtained if the customer was caught in the act...Thus traditional police methods are not effective for enforcing” this law (Hornick and Bolitho, 1992: 65).

Lowman and Fraser found that “...during the first six years of the new law’s existence, there were apparently only six charges in Vancouver for offering to purchase the sexual services of a youth” (1996: 100). Police officers suggested that s.212(4) was difficult to enforce because to obtain a conviction they must catch the offender “in the act,” attempt to use undercover police decoys (it is difficult to get an officer who appears under the age of 18), or rely on a youth’s testimony (why would a youth alienate a potential source of income?) (Bittle, 1999; Lowman, 1997; F/P/T, 1998).  Lowman agreed that section 212(4) appears difficult to enforce, however he added that response (or lack thereof) to the ineffectiveness of this legislation was revealing about attitudes towards youth prostitution. When problems were perceived with the ‘soliciting law’ (from 1978 to 1985), the police and community groups were very vocal about the need to enact new legislation to control and suppress the street trade.  “They’ve mounted no such campaign on behalf of section 212(4).”

In Vancouver, British Columbia some service providers and community activists questioned why s.212(4) was not enforced.  In 1996 a Vancouver service agency commissioned a report to examine the lack of s.212(4) charges in British Columbia (Daum, 1996). The author argued that street children and youth must be protected from the sexual advances of pedophiles and sexual predators. Daum berated the police, the courts and politicians for not arresting customers of young prostitutes, and for not fixing the problems associated with the enforcement of s.212(4). In October 1998, another report (produced by the same author) criticized the enforcement of s.212(4) in British Columbia and other Canadian jurisdictions. The author acknowledged an increase in the number men charged for purchasing, or attempting to purchase, the sexual services of a youth; however, she argued that much more must be done to protect children and youth from sexual exploitation, i.e., more s.212(4) charges and the use of existing sexual offence legislation to prosecute male sexual predators.

In response to concerns about the sexual exploitation of street youth, the federal government amended s.212(4) to make it easier to enforce. Bill C-27 added subsection 212(5), making it illegal to purchase the sexual services of someone under the age of 18, or “who the offender believes is under the age of 18 years” (F/P/T, 1998: 25).  This addition was introduced to address police concerns by allowing undercover surveillance officers to present themselves as being under the age of 18 to people who propositioned them. Further, various jurisdictions across Canada have launched initiatives to increase protection afforded to youth involved in prostitution (for example, see British Columbia, 1996 and 1997, Manitoba, 1996; Sas and Hurley, 1997).

2.8 The Context of Responding to Youth Involved in Prostitution

A review of the literature concerning the legislative history and development reveals a marked difference in the legal approach towards female prostitutes and customers and men who sexually procure youth. Regardless of age, female prostitutes have been subjected to discriminatory legislation and unequal law enforcement. In contrast to female prostitutes, men associated with the demand aspect of the sex trade have enjoyed relative immunity from the law. As Sullivan notes:

Until now, Canadian law as it affects juvenile prostitution has historically been uneven and discriminatory both in its spirit and enforcement, essentially punishing rather than protecting, without significantly affecting those who benefit from prostitution (1986: 11).

Despite a history of discriminatory prostitution-related legislation and law enforcement, there are signs of change (cf. Lowman, 1997).  There are indications in the 1990s that discussions and efforts to suppress prostitution are shifting towards the male client and men who sexually procure youths.  Data produced by the Canadian Centre for Justice Statistics suggests that charge rates for prostitutes and their customers is close to parity. At the same time, national statistics indicate that youth involved in prostitution are not being charged with communicating as frequently as they have in the past (Duchesne, 1997).  “The relatively small portion of youth (12 to 17 years-old) charged may reflect their frequent diversion to social service agencies by police” (Duchesne, 1997: 1). Furthermore, questions have been raised by some service providers and community members about the virtual immunity from the law enjoyed by men who purchase the sexual services of youth, and they have lobbied for the protection of youth involved in prostitution (Bittle, 1999).