Prostitution

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This article is a topic within the subject Crime & the Criminal Process.

Contents

Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 814- 835.

Introduction

[1] prostitution is defined in s 3(1) of Summary Offences Act 1988:

‘prostitution’ includes acts of prostitution between persons of different sexes or of the same sex, and includes:
  • (a) sexual intercourse as defined in section 61H of the Crimes Act 1900 , and
  • (b) masturbation committed by one person on another,
for payment.

The criminalisation of prostitution has a long history in criminal law:

  • 1908-1979: Intensification of criminal prohibitions.
  • 1979-1983: Decriminalisation.
  • 1983-1995: Backsliding.
  • 1995-Present: Further Reform.

The current law regulating prostitution is found in the Summary Offences Act 1988 (NSW), the Disorderly Houses Act 1943 (NSW) and, to a lesser extent, the Environmental Planning and Assessment Act 1979 (NSW).

Soliciting

[2] The soliciting offences are in s 19 of the Summary Offences Act 1988 (NSW):

(1) A person in a road or road related area shall not, near or within view from a dwelling, school, church or hospital, solicit another person for the purpose of prostitution.
(2) A person shall not, in a school, church or hospital, solicit another person for the purpose of prostitution.
(3) A person shall not, in or near, or within view from, a dwelling, school, church, hospital or public place, solicit another person, for the purpose of prostitution, in a manner that harasses or distresses the other person.
(5) In this section:
  • (a) a reference to a person who solicits another person for the purpose of prostitution is a reference to a person who does so as a prostitute, and
  • (b) a reference to soliciting includes a reference to soliciting from a motor vehicle, whether moving or stationary.

The maximum penalty for all three offences is imprisonment for 3 months. Note that subsection 19 (5) (a) says that s 19 applies to prostitutes soliciting other people. s 19A duplicates these offences but from the point of view of the client - the section is the same, with the exception of subsection (5) (a), which specifies:

  • (a) a reference to a person who solicits another person for the purpose of prostitution is a reference to a person who does so as a prospective client of a prostitute, and

The meaning of 'solicit' in s 19 (1) was considered in Coleman v DPP:[3]

  • Soliciting involves a mere offer or invitation relating to sexual activity for money (gestures and clothing may also be relevant), and no persistence is necessary.

Note that according to the definition of s 19, street soliciting is legal so long as it is not near or within view of a school, church, hospital or dwelling. The definitions of road, road-related area, hospital etc are in s 3 of the Act.

Public Acts of Prostitution

Public acts of prostitution (where a client/prostitute have sex in/near a public place) are an offence under s 20. The maximum penalty is 6 months imprisonment:

  1. Each of the persons taking part in an act of prostitution:
    • (a) in, or within view from, a school, church, hospital or public place, or
    • (b) within view from a dwelling,
    • is guilty of an offence.
  2. Each of the persons taking part in an act of prostitution in a vehicle that is:
    • (a) in, or within view from, a school, church, hospital or public place, or
    • (b) within view from a dwelling,
    • is guilty of an offence whether or not the act of prostitution can be seen from outside the vehicle.
  3. A person is not liable to be punished for an offence under both subsections (1) and (2) in respect of the same act of prostitution.

Where it occurs in a vehicle, it doesn’t matter if it can be seen from outside the vehicle.

Living on the Earnings of Prostitution

[4] Living on the earning of prostitution of another person is prohibited by s 15 (1).

  • Subsection (2) specifies that a person (over 18) who lives with or is in habitually in the company of a prostitute and has no visible means of income is automatically deemed to be living off the earnings of a prostitute, and must satisfy the court otherwise or be convicted.
  • Subsection (3) makes an exception owners, receptionist, cleaners etc of a brothel.

The purpose of this section is to prevent exploitation (people 'pimping' out girls). However, the section can also potentially apply to those who non-exploitative dependents of a prostitute, such as adult child (ie, 19 year old son still living at home) or partner.

Living on the earnings of the prostitute is discussed in Shaluga:[5]

  • Facts: the defendant drove a prostitute and a client to and from a place once.
  • Held: there must be some continuous association and some habitual receipt of money from the earnings of prostitution - this was an isolated accident.

And also in Thomas (UK):[6]

  • Facts: defendant was sub-letting a room for prostitution purposes, for a grossly inflated rent
  • Held: offence may be established in such cases where he knew the premises were being used for prostitution.

And in the highly critcised Shaw v DPP (UK):[7]

  • Facts: defendant lived off a booklet of prostitution advertisement.
  • Held: his net reward is the direct and intended result of the ladies’ prostitution.

Other offences which relate to 'pimping' and exploitation are:

  • s 15A (Summary Offences Act):
  1. A person must not, by coercive conduct or undue influence, cause or induce another person to commit an act of prostitution.
  2. A person must not, by coercive conduct or undue influence, cause or induce another person to surrender any proceeds of an act of prostitution.
  • s 91A (Crimes Act) - it is a crime to ‘procure, entice or lead away any person (not being a prostitute)’, with or without the person’s consent, for prostitution: up to 7 years.
  • s 91B (Crimes Act) - it is a crime where procurement is done ‘by means of any fraud, violence, threat, or abuse of authority, or by the use of drug/liquor’: 10 years.

Premises Used for Prostitution

[8] There are specific laws relating to premises used for the purposes of prostitution. s 16 deals with places which are ostensibly used for other purposes (such as massage parlors) but are also used for prostitution:

A person shall not use, for the purpose of prostitution or of soliciting for prostitution, any premises held out as being available:
  • (a) for the provision of massage, sauna baths, steam baths or facilities for physical exercise, or
  • (b) for the taking of photographs, or
  • (c) as a photographic studio,
or for services of a like nature.
Maximum penalty: 5 penalty units or imprisonment for 3 months.
  • Note: s 17 duplicates this offences to owners and managers etc ('allowing premises to be used for prostitution').

This offence was considered in Franklin v Durkin:[9]

  • s 16 creates two offences:
    1. Using premises for the purpose of prostitution - act of prostitution is a necessary ingredient.
    2. Using premises for the purpose of soliciting for prostitution - offer to perform a sexual service for payment is sufficient.

The meaning of what exactly in is act of prostitution was discussed in Begley v Police:[10]

  • Facts: the defendant had a 'nude thai message' which involved no intercourse, but the masseuse was naked and rubbed her body on the defendant.
  • Held: sexual intercourse is not necessary for prostitution to occur. The massage was likely to provide sexual gratification to the customer and therefore it is prostitution.

Disorderly Houses

[11] The Disorderly Houses Act 1943 was introduced to combat wartime growth of gambling, sly grog and prostitution. Originally, the act allowed brothels to be declared as 'disorderly houses' (under s 3) regardless of they were well-run or badly run, but after the 1995 amendments, a declaration may not be made against a premises solely because the premises are a brothel. The act has since been renamed the Restricted Premises Act 1943 (NSW).

The operations of brothels in Australia is now regulated by the law in 3 ways:

  1. It is still possible for the police to apply to the Court for a declaration that the brothel is a disorderly house, but the mere that the premises are a brothel will not be sufficient grounds for a declaration. It is necessary for one of the other grounds in s 3 to be established.
  2. Under s 17, an application can be made by the Local Council to the NSW Land and Environment Court to make an order for the premises not to be used for the purposes of being a brothel.
    • An application can only be made if the Local Council has received complaints.
    • The Court still has to consider whether it’s operating in a dwelling, school, hospital, near where children are, whether it creates problems, etc.
    • The court considers a wide array of evidence in determining whether the place is a brothel.
    • For the purposes of this section, a brothel is a place which offers 'related sex uses' (defined in s 2 and include stripping, erotic messages etc).
  3. Under the Environmental Planning and Assessment Act 1979, a development application to establish a brothel may be rejected by a local council.
    • Considerations are laid down in s 79C.
    • Blanket bans on brothels are not allowed, although they can be restricted to industrial areas.

Australia has gone from a criminal approach to a planning approach, giving the power to the Local Council. This has led to some corruption.

Advertising Prostitution Services

[12] Advertising prostitution services is prohibited under s 18 of the Statutory Offences Act 1988. s 18A prohibits advertisements for the recruitment of prostitutes.

  • Most years, there are no prosecutions for these offences.

Child Prostitution

[13] Child prostitution is illegal. The Crimes Act 1900 prohibits the following acts related to child prostitution:

  • s 91D(1) - inducing a child to participate in an act of child prostitution. Max penalty of 10 years (14 years if the child is under 14 years of age).
  • s 91E - gaining a material benefit from child prostitution. Max penalty of 10 years.
  • s 91F - being owner a premises for child prostitution. Max penalty of 7 years.
  • s 91G: child pornography. Max penalty of 14 years.

Sexual Servitude and Trafficking

[14] As a result of the UN Protocol to stop the trafficking of persons, the Commonwealth introduced a number of offences into the Criminal Code dealing with sexual servitude and slavery:

  • s 270.4 Definition: 'the condition of a person who provides sexual services and who, because of the use of force or threats … is not free to cease providing sexual services; or … Is not free to leave the place or area where the person provides sexual services'.
  • s 270.5: Conduct and/or sexual services or part of it must occur outside Australia.
  • s 270.6(1): Intentionally or recklessly causing another person to enter/remain in sexual servitude: 15 years.
  • s 270.6(2): Conducting a business that involves sexual servitude: 15 years.
  • s 270.7: Inducing another person to engage in sexual services by deception about the fact that sexual services are required.
  • Div. 271 (2005): Trafficking in persons and debt bondage.

The mens rea requirement of sexual servitude were considered in Tang:[15]

  • Facts: the defendant owned a brothel and entered into a 'contract' with 5 thai women that she would bring them over to Australia and in return they would work 6 days a week for her to pay off the debt (ie, money they earn goes straight to the repayment). Meanwhile, the defendant retained their passports and return tickets. They were well taken care of though, and those who repaid the debt in full continued to work there.
  • Held: the physical element is the conduct which amounts to the description in the act. The mens rea requirement is that the defendant intended that conduct (as per the description of the act) to occur - no specific level of knowledge about the person being a slave or anything is required to be proved.

The defendant must have had knowledge that the condition as described in the Code is being caused, it is not necessary to prove that the defendant intended the slave to be an actual slave.

Enforcement

[16] Prostitution is essentially decriminalised in NSW.

  • Most common charges in the local court are for soliciting, especially by worker, with virtually none under other statutory provisions.
  • There has been a substantial reduction in police involvement in the sex industry, including police corruption in the area.
  • However, some instances of corruption in Local Council are emerging.

End

This is the end of this topic. Click here to go back to the main subject page for Crime & the Criminal Process.

References

Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. Textbook, pp. 814-8.
  2. Textbook, pp. 8189.
  3. [2000] NSWSC 275.
  4. Textbook, pp. 820-1.
  5. (1958) 75 WN (NSW) 120.
  6. [1957] 2 ALL ER 181.
  7. [1962] AC 220 (HL).
  8. Textbook, pp. 821-2.
  9. Unreported, NSWSC, 21 October 1994.
  10. (1996) 188 LSLJ 326.
  11. Textbook, pp. 822-4.
  12. Textbook, pp. 824-5.
  13. Textbook, p. 825.
  14. Textbook, pp. 826-30.
  15. [2008] HCA 39.
  16. Textbook, pp. 830-2.
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