INTRODUCTION

The question as to whether prostitution should be legalized undoubtedly remains one of the exigent issues of public discourse. The underpinning factors influencing the views of many people hinge on public morality, culture differences, religious considerations, human rights and so forth. Today, prostitution has been legalized either partly or wholly in Denmark, Canada, France, Mexico, Netherlands, Israel, England and Wales. Meanwhile, prostitution remains illegal in Ghana and all the states (except Nevada) in United States as well as others countries. Notwithstanding, prostitution and for that commercial sex is still traded in these countries. Advocates for and against legalization of prostitution continue to influence several national legislations to their favour. This piece attempts to answer the above question as well as stating some concrete recommendations to curb the menace.

Our discussion is going to be organized around the following contours:

I. Explaining what prostitution means

II. Causes of prostitution

III. Arguments against criminalization of prostitution

IV. Arguments in favour of criminalization of prostitution

V. The Ghanaian position

VI. Recommendation

I. EXPLAINING WHAT PROSTITUTION MEANS

Prostitution is generally defined to mean the act of engaging in sexual intercourse in exchange for money. In R v Webb[2], it was stated that: ‘prostitution is proved if it (can) be shown that a woman offers her body for the purpose of common prostitution’. The word ‘common’ involves procuring a woman to act as a prostitute on more than one occasion.[3] Prostitution is not limited to cases involving sexual intercourse. It is not, in itself, an offence, but it is an offence to cause others to become prostitutes or to live on the earnings of prostitution.[4] In R v Ansell[5] and R v Thomas[6], the accused were guilty of living off the earnings of prostitution. In the latter case, the accused, knowing a woman to be a prostitute, agreed to let her have the use of his room at specified times at a charge. It was held that he was knowingly living off the earnings of prostitution. According to P.K Twumasi in his book, The Criminal Law of Ghana, under the Ghanaian Criminal

code[7], to be guilty of prostitution, it must strictly be proved that:

· the accused lives on the earnings of prostitution;

· some female practices prostitution;

· she earns her money or money’ worth out of such practice;

· the accused depends for his livelihood wholly or in part on such earnings; and

· the accused knows that he is dependant or lives wholly or in part on such earnings.

II. CAUSES OF PROSTITUTION

Poverty is one of the major causes of prostitution. It is a fact that majority of prostitutes enter into the commercial sex business as the last option or as an involuntary way of making ends meet. ‘Most women in prostitution did not make a rational choice to enter prostitution. They did not sit down one day and decide that they wanted to be prostitutes. Rather, such “choices” are better termed “survival strategies.” Rather than consent, a prostituted woman more accurately complies to the only options available to her. Her compliance is required by the very fact of having to adapt to conditions of inequality that are set by the customer who pays her to do what he wants her to do.’[8] A survey reveals that in Ghana most prostitutes, especially girls between twelve and sixteen are among the numerous women who parade in the open to solicit for sex in return for money. These girls are sometimes compelled to satisfy the sexual desires of their male counterparts to get food to eat.

In Accra alone, there are one hundred and twenty five brothels where young girls are forced into prostitution. Girls, mostly from poverty-stricken families in rural areas are the victims.

Drug addicts may also end up in prostitution.

III. ARGUMENTS FOR LEGALINIZING PROSTITUTION

According the Wolfenden report (which was published) on 3rd September, 1957: ‘the law’s function is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and provide sufficient safeguards against exploitation and corruption of others…it is not, in our view, the function of the law to intervene in private life of citizens, or to seek to enforce any particular pattern of behavior.’[9] Mark Liberator in his article, Legalized Prostitution: The oldest Profession warned politicians and urged them to be careful as to how they address the philosophical limits of adult privacy. He questioned the limits for two consenting adults in privacy as against the illegality of prostitution in United States. According to Mark Liberator making prostitution legal and regulated:

1. will allow the act to be managed instead of ignored. Pimps and other organized crime figures, who regularly treat their workers on subhuman levels, would no longer control women;

2. provide the environment that brings about safety for both the customers and the prostitutes. Legalizing prostitution would prevent underground prostitution. It is estimated that 100,000 to 3 million teens are newly invisible prostitutes per year in the United States (Walker, 2002). ‘If we allow prostitution to remain hidden from view and basically invisible to the law as it is today, we allow a number of teens to be swept up to prostitution every year’, he argued. According to him, allowing prostitution to remain invisible only perpetuates the spread of sometimes-deadly sexually transmitted diseases.

3. has many benefits. Encounters can happen within controlled environments that bring about safety for both the customers and the prostitutes.

4. is sensible because it will monitor prostitution. That legalization would require prostitutes to undergo regular medical examinations, STDs would be prevented from being spread, reduce gender violence and prevent women from becoming infertile. Others advocates also regard criminalization of prostitution as an infringement against freedom of religion and trade. Accordingly, it is very wrongful to suppress such rights based on one’s view about morality.

IV. ARGUMENTS FOR CRIMILZATION OF PROSTITUTION

These advocates hold the view that criminalization of prostitution is the function of the law. Lord Patrick Devlin in his book ‘Enforcement of Morals’ writes: “I think it is clear that criminal law is based on moral principles. In a number of cases its function is to enforce morality and nothing else.” According to the Halsbury Laws of England[10], ‘…ordinarily, a crime is wrong which affects the security and well-being of the public generally so that the public has an interest in its suppression.’ In his article[11], HIV/AIDS is not an Excuse to Legalize Prostitution in Ghana, Ofori Stephen stresses that morality is that which keeps society alive. ‘Society without morality is not worth living in. And this morality cannot be sacrificed for anything such as AIDS which can be curbed in a more permanent way (such as abstinence). The act of offering by a person of his/her body for acts of sex for payment (prostitution) is a social canker; it is an affront and a serious threat to morality which is the breath of our society,’ he argued. Biblically, prostitution should not be encouraged. The Holy Bible in Leviticus 19:29 state that prostitution degrades a person and filled society with wickedness. The said quotation specifically states that: ‘do not degrade your daughter by making her a prostitute, or the land will turn to prostitution and be filled with wickedness.’[12]

In his article, 10 Reasons for Not Legalizing Prostitution, Janice G. Raymond[13] argued that legitimating prostitution does as ‘work’ does not empower the women in prostitution but does everything to strengthen the sex industry. “We hear very little about the role of sex industry in creating a global sex market in the bodies of women and children. Instead, we hear much about making prostitution into a better job for women through regulation and/or legalization, through unions of so-called ‘sex workers,’ and through campaigns which provide them alternatives to prostitution. We hear much about how to keep women in prostitution but very little about how to help women get out,” the article pointed out. According to the erudite author, governments that legalize prostitution as “sex work” will have a huge economic stake in the sex industry. This, according to the author, will foster their increased dependence on the sex sector. Besides, if women in prostitution are counted as workers, pimps as businessmen, and buyers as consumers of sexual services, it will mean legitimating the entire sex industry as an economic sector making governments to abdicate responsibility for making decent and sustainable employment available to women.

According to the author:

1. Legalizing/decriminalization of prostitution is a gift to pimps, traffickers and the sex industry. ‘Ordinary people believe that, in calling for legalization or decriminalization of prostitution, they are dignifying and professionalizing the women in prostitution. But dignifying prostitution as work doesn’t dignify the women; it simply dignifies the sex industry. People often don’t realize that decimalization, for example, means decriminalization of the whole sex industry not just the women. And they haven’t thought through the consequences of legalizing pimps as legitimate sex entrepreneurs or third party businessmen, or the fact that men who buy women for sexual activity are now accepted as legitimate consumers of sex,’ he argued among others.

2. Legalizing/decriminalization of prostitution and the sex industry promotes sex trafficking. ‘…one argument for legalizing prostitution in Netherlands was that legalizing prostitution would help end exploitation of desperate immigrant women trafficked for prostitution. A report done for the governmental Budapest Group stated that 80% of women in the brothels in the Netherlands are trafficked from other countries…As early as 1994, the International Organization of Migration (IOM) stated that in the Netherlands alone, “nearly 70 per cent of trafficked women were from CEEC Central and Eastern Europe Countries)” (IOM, 1995: 4)…. In one year since lifting the ban on brothels in the Netherlands, NGOs report that there has been an increase of victims from other countries of trafficking or, at best, that the number of victims from other countries has remained the same…,’ the article pointed out. It was further indicated that ‘…as early as 1993, after the first steps towards legalization had been taken, it was recognized (even by pro-prostitution advocates) that 75 per cent of the women in the Germany’s prostitution industry were foreigners from Uruguay, Argentina, Paraguay and other countries in South America…’

According to Raymond, the link between legalization of prostitution and trafficking in Australia was recognized in the U.S State Department’s 1999 Country Report on Human Rights Practices, released by the Bureau of Democracy, Human Rights and Labor. In the report on Australia, it was noted that in the State of Victoria which legalized prostitution in the 1980s, “Trafficking in East Asian women for the sex trade is a growing problem” in Australia…lax law – including legalized prostitution in parts of the country – make (anti-trafficking) enforcement difficult at the working level.

3. Legalizing/decriminalization of prostitution does not control the sex industry. It expands it. Legalization of prostitution in the State of Victoria, Australia, has led to massive expansion of the sex industry. Whereas there were 40 legal brothels in Victoria in 1989, in 1999 there were 94, along with 84 escort services. Other forms of sexual exploitation, such as tabletop dancing, bondage and discipline centers, peep show, phone sex, and pornography have all developed in much more profitable ways than before (Sullivan and Jeffreys: 2001).

Brothels in Switzerland have doubled several years after partial legalization of prostitution. Most of these brothels go untaxed, and many are illegal. In 1999. The Zurich newspaper, Blick, claimed that Switzerland had the highest brothel density of any country in Europe, with residents feeling overrun with prostitution venues, as well as experiencing constant encroachment into areas not zoned for prostitution activities (South China Morning Post: 1999).

Contrary to claims that legalization and decriminalization would regulate the expansion of the sex industry and bring it under control, the sex industry now accounts for 5 percent of Netherlands economy (Daley, 2001: 4). Over the last decade, as pimping became legalized and then brothels decriminalized in the Netherlands in 2000, the sex industry expanded 25 percent (Daley, 2001: 4). At any hour of the day, women of all ages and races, dressed in hardly anything, are put on display in the notorious windows of Dutch brothels and sex clubs and offered for sale—for male consumption. Most of them are women from other countries (Daley, 2001: 4) who have in all likelihood been trafficked into the Netherlands.

4. Legalizing/decriminalization of prostitution increases clandestine, hidden, illegal and street prostitution. Many women don’t want to register and undergo health checks, as required by law in certain countries legalizing prostitution, so legalization often drives them into street prostitution. And many women choose street prostitution because they want to avoid being controlled and exploited by the new sex “businessmen.”

In the Netherlands, women in prostitution point out that legalization or decriminalization of the sex industry cannot erase the stigma of prostitution but, instead makes women more vulnerable to abuse because they must register and lose anonymity. Thus, majority of women in prostitution still choose to operate illegally and underground. Members of Parliament who originally supported the legalization of brothels on the grounds that this would liberate women are now seeing that legalization actually reinforces the oppression of women (Daley. 2001: A1).

In New South Wales, brothels were decriminalized in 1995. In 1999, the number of brothels in Sydney had increased exponentially to 400-500. The vast majority have no license to operate. To end endemic police corruption, control of illegal prostitution was taken out of the hands of the police and placed in the hands of local councils and planning regulators. The council has neither the money nor the personnel to put investigators into brothels to flush out and prosecute illegal operators.

5. Legalizing of prostitution and decriminalization of the sex industry increases child prostitution. The Amsterdam-based ChildRight organization estimates that the number (of children in prostitution) has gone from 4,000 children in 1996 to 15,000 in 2001. The group estimates that at least 5,000 of the children in prostitution are from other countries, with a large segment being Nigerian girls (Tiggeloven: 2001).

Child prostitution has dramatically risen in Victorian compared to other Australian states where prostitution has not been legalized. Of all the states and territories in Australia, the highest number of reported incidences of child prostitution came from Victoria. In a 1998 study undertaken by ECPAT (End Child Prostitution and Trafficking) who conducted research for the Australian National Inquiry on Child Prostitution, there was increased evidence of organized commercial exploitation of children.

6. Legalizing/decriminalization of prostitution does not protect the women in prostitution. The Coalition Against Trafficking in women International (CATW) has conducted 2 major studies on sex trafficking and prostitution, interviewing almost 200 victims of commercial sexual exploitation. In these studies, women in prostitution indicated that prostitution establishments did little to protect them, regardless of whether they were in legal or illegal establishments. “The only time they protect anyone is to protect the customers.”

In a CATW 5-country study that interviewed 156 victims of international trafficking and local prostitution, 80% of all women interviewed suffered physical violence from pimps and buyers and endured similar and multiple health effects from the violence and sexual exploitation (Raymond et al: 2002).

7. Legalizing/decriminalization of prostitution increase the demand for prostitution. It boosts the motivation of men to buy women for sex in a much wider and more permissible range of socially acceptable settings.

8. Legalizing/decriminalization of prostitution does not promote women’s health. A legalized system of prostitution that mandates health checks and certification only for women and not for clients is blatantly discriminatory to women. “Women only” health checks make no public health sense because monitoring prostituted women does not protect them from HIV/AIDA or STDs, since male “clients” can and do originally transmit disease to the women.

It is argued that legalized brothels or other “controlled” prostitution establishments “protect” women through enforceable condom policies. In one of the CATW’s studies, U.S. women in prostitution interviewed reported the following: 47% stated that men expected sex without a condom; 73% reported that men offered to pay more for sex without a condom; 45% of women said they were abused if they insisted that men use condoms. Some women said that certain establishments may have rules that men wear condoms but, in reality, men still try to have sex without them. One woman stated: “It’s ‘regulation’ to wear a condom at the sauna, but negotiable between parties on the side. Most guys expected blow jobs without a condom (Raymond and Hughes: 2001).”

So-called “safety policies” in brothels did not protect women from harm. Even where brothels supposedly monitored the “customers” and utilized “bouncers,” women stated that they were injured by buyers and, at times, by brothel owners and their friends. Even when someone intervened to control buyers’ abuse, women lived in a climate of fear. Although 60 percent of women reported that buyers had sometimes been prevented from abusing them, half of those women answered that, nonetheless, they thought that they might be killed by one of their “customers” (Raymond et al: 2002).

9. Legalizing/decriminalization of prostitution does not enhance women’s choice. Most of the women interviewed in CATW studies reported that choice in entering the sex industry could only be discussed in the context of the lack of other options. Most emphasized that women in prostitution had few other options. Many spoke about prostitution as the last option, or as an involuntary way of making ends meet. In one study, 67% of the law enforcement officials that CATW interviewed expressed the opinion that women did not enter prostitution voluntarily. 72% of the social service providers that CATW interviewed did not believe that women voluntarily choose to enter the sex industry (Raymond and Hughes: 2001).

A 1998 ILO (UN International Labor Organization) report suggested that the sex industry be treated as a legitimate economic sector, found that “… prostitution is one of the most alienated forms of labour; the surveys (in 4 countries) show that women worked ‘with a heavy heart,’ ‘felt forced,’ or were ‘conscience-striken’ and had negative self-identities. A significant proportion claimed they wanted to leave sex work (sic) if they could (Lim, 1998: 213).

10. Women in systems of Prostitution do not want the sex industry legalized or decriminalized. In a 5-country study on sex trafficking done by the Coalitition Against Trafficking in Women and funded by the Ford Foundation, most of the 146 women interviewed strongly stated that prostitution should not be legalized and considered legitimate work , warning that legalization would create more risks and harm for women from already violent customer and pimps (Raymond et al, 2002). “No way. It’s not a profession. It is humiliating and violence from the men’s side.” Not one woman interviewed wanted her children, family or friends to have to earn money by entering the sex industry. One stated: “Prostitution stripped me of my life, my health, everything.”

V. THE GHAHAIAN POSITION

In Ghana, prostitution is a criminal act which attracts a fine or misdeamenour or both. The Criminal Code, 1960 (Act 29) defines prostitution to ‘(include) the offering by a person of his body commonly for acts of lewdness (sex) payment although there is no act of ordinary sexual connection.’ Section 276 of the code (as amended by section 14 of Act 554) provides that, “any person who persistently solicits or importunes in any public place or in sight of any public place for the purpose of prostitution shall be liable for a first offence to a fine not exceeding (500,000 cedis) and for a second or subsequent offences shall be guilty of a misdemeanor.” According to section 275, ‘any person who in any public place persistently solicits or importunes to obtain clients for any prostitute or for any other immoral purpose shall be guilty of a misdemeanor.’

According to Ofori Stephen, “a very important question that needs to be answered is: ‘on what basis did our lawmakers made prostitution a crime in our legal code?” In his view, one of the very main purposes of passing a criminal legislation in every legal system is the protection of public morals.

Chapter five of the 1992 Constitution of Ghana enshrines fundamental human rights. However, its article 12(2) states that such rights are subject to respect for the rights and freedoms of others and for public interest. The Wolfenden report stated that the law should intervene in private matters where they are shown to be against public good.

VI. RECOMMENDATIONS

From the above discussion it is worth admitting that there is no need for decriminalization of prostitution since such a move will only compound the unpleasant situations that we may purport to solve. Of a truth, no problem is solved by creating more deadly problems.

The following recommendations are appealing.

1. Governments should be more interested in getting people from prostitution rather than legalizing the so-called ‘sex industry.’

2. We should concentrate on how best we can reduce poverty.

3. More mechanisms should be put in place to effectively enforce laws that are made to protect public morals.

4. We should not interpret the right of two consenting adults to engage in sexual intercourse as a license to trade in sex since the activities of the ‘sex industry’ could be policed.

Views expressed by the author(s) do not necessarily reflect those of GhanaHomePage.

--------------------------------- [1] Author and freelance writer. He is with the Faculty of Law, KNUST; borncapy@yahoo.com.

[2] (1964) 1QB 357.

[3] R v Morris-Lowe (1985) 1 WLR 29.

[4] S.O.A. 1956. R v Bell (1978) Crim LR 233.

[5] (1974) 3 AII ER 568, CA.

[6] (1957) 2 AII ER 342.

[7] Section 274 of Act 29

[8] 10 Reasons for Not Legalizing Prostitution by Janice Raymond.

[9][9] Wikipedia, the free encyclopedia.

[10] Page 16, 4th Edition.

[11][11] Published in the Saturday, September 29, 2007 edition of the Chronicle

[12] New International Version (NIV).

[13] Coalition Against Trafficking in Women International (CATW)

Views expressed by the author(s) do not necessarily reflect those of GhanaHomePage.