Youth Involvement in Prostitution: A Literature Review and Annotated Bibliography

2. Legislative History and Policy Responses (continued)

2. Legislative History and Policy Responses (continued)

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On 20 December 1985 the federal government repealed the soliciting law and replaced it with legislation that criminalized public communication for the purpose of buying or selling sexual services.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

Initial survey data on the impact of the communicating law in some Canadian jurisdictions suggested that female prostitutes continued to be punished more frequently than male clients. Regional assessments commissioned by Justice Canada (Brannigan et al, 1989; Gemme et al, 1989; Graves, 1989; Lowman, 1989; Moyer and Carrington, 1989) revealed that police enforcement patterns focused primarily on female prostitutes: “ 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). However, Fleischman (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. Furthermore, youth prostitutes in Vancouver (as well as other jurisdictions) continued to be targets of law enforcement; in 1986 and 1987, ten percent of all communicating charges were levied against youth (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 youth 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). The argument has been made that prostitutes were more likely to be exposed to dangerous situations because they would need to make quicker decisions before engaging with a client, and meet clients in more secluded areas where there were no witnesses or police officers to assist when clients turned violent. (See next chapter for further discussion of violence against prostitutes).

2.9 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, rendering it difficult to ascertain the number of section 212(2) and (4) charges across Canada. However, the literature provides some commentary on the effectiveness of legislation aimed at prohibiting the sexual procurement of youth. An early sign that these laws were not effective came from an evaluation commissioned by Department of Justice Canada on the package of laws introduced in Bill C-15 (see, Hornick and Bolitho, 1992; Schmolka, 1992). The evaluation revealed 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 (and it is difficult to get an officer who appears under the age of 18), or rely on a youth’s testimony (which is difficult given that a youth would alienate a potential source of income) (Bittle, 1999; Lowman, 1997; F/P/T, 1998). While Lowman and Fraser (1996) agreed that section 212(4) appears difficult to enforce, he added that response to the ineffectiveness of this legislation was revealing about attitudes towards youth prostitution. For instance, 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, B ritish 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 of 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 and the ability of police to enforce s.212(4), 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 to address police concerns by allowing undercover surveillance officers to present themselves as being under the age of 18 to people who propositioned them. Subsection 212(5) was subsequently repealed due to concerns that the Crown had to prove the accused believed the youth was less than 18 years of age.

2.10 From Villain to Victim: the Context of Policy Responses to Youth Prostitution[8]

A review of the literature concerning the legislative history and development reveals a marked difference in the legal approach towards female prostitutes 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:

…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 have been some signs of change (cf. Lowman, 1997). During the early 1990s, discussions and efforts to suppress prostitution shifted towards the male client and men who sexually procure youth. Data produced by the Canadian Centre for Justice Statistics suggested that charge rates for prostitutes and their customers were close to parity. At the same time, national statistics indicated that youth involved in prostitution were not being charged with communicating as frequently as they had 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, some service providers and community members questioned the virtual immunity from the law enjoyed by men who purchase the sexual services of youth, and they lobbied for the protection of youth involved in prostitution (Bittle, 1999).

In 1992 the federal/provincial/territorial (F/P/T) deputy justice ministers instructed a working group on prostitution to examine “legislation, policy and practices concerning prostitution-related activities and bring forward recommendations to address problems posed by prostitution.” Youth involvement in prostitution, violence against prostitutes, and neighbourhood concerns associated with the street sex trade were earmarked by the working group as primary issues of concern. The Working Group released its final report in December 1998, which included several recommendations with respect to youth involvement in prostitution:

The development of legal and social intervention strategies to combat youth involvement in the sex trade, and youth involved in s.213 offences should be dealt with as in need of assistance and “distinct from being treated as offenders.”

  • Increased awareness of the “dynamics of youth involved in prostitution” among criminal justice personnel.
  • Amend s.212(4) to make it easier for police to arrest customers of young prostitutes.
  • Special witness protection programs to help young prostitutes testify in court against pimps and customers.
  • The development of “interdisciplinary protocols” involving child welfare, the police and the crown – using the criminal justice system as a measure of last resort.
  • Alternative measures for youth involved in prostitution.
  • Improved services (i.e., education, prevention, harm reduction and exit supports) for youth involved in the sex trade “or at risk of such involvement.”

By the mid 1990s, a policy shift had occurred whereby young prostitutes were no longer conceptualized as “deviants” or “criminals” in need of punishment. Instead, youth prostitution was viewed as a form of sexual abuse, and therefore young prostitutes were victims who need protection (i.e. the youth prostitute had been redefined as a ‘victim’ not ‘villain’) (see Bittle, 1999 for an account of this philosophical shift in Vancouver, British Columbia). During this period there were numerous youth prostitution-related reports, committees, task forces and initiatives launched by provincial and municipal governments.

There are examples of projects developed to help understand the characteristics and dynamics of the youth sex trade (for example, see LeBlanc, 1997; Sas and Hurley, 1997). There are initiatives and reports aimed at preventing youth involvement in prostitution, i.e., prevention programs for families and schools, and improved services for street involved youth (for example, see British Columbia, 1994; C/S Resors Consulting, 1996; Daum and Dion, 1996; Recommendations of the Prostitution Policy, Service and research Committee for the Calgary Community, 1996; Madsen and Moss, 1996). Other reports focus on harm reduction strategies for youth involved in prostitution, i.e., substance abuse programs, initiatives to reduce violence against prostitutes, and protection for youth witnesses (for example, see Committee for Sexually Exploited Youth in the CRD, 1997; British Columbia, 1994; Halldorson Jackson, 1998). Finally, several committees and reports recommend counseling, education, employment, housing and support services for youth who want to exit prostitution (for example, see C/S Resors Consulting, 1996; Canadian Child Welfare Association, 1987; Safer City Task Force, 1993).

Several recent reports and initiatives emphasize the need for co-operation and communication between agencies responsible for dealing with youth prostitution. The Report of the Working Group on Juvenile Prostitution (Manitoba Child and Youth Secretariat, 1996) recommended that the Department of Family Services foster networking and coordination among Winnipeg agencies that “provide significant services to juveniles in prostitution and in street life.” In 1996, the British Columbia government launched a provincial action plan on prostitution that encouraged police, service providers, parents, youth and communities to work together to develop “initiatives that target pimps and johns, violence towards prostitutes, and safety and nuisance issues in neighbourhoods.” Further, Sas and Hurley (1997: 185) recommended an “inter-agency investigative protocol to combat child sexual exploitation, including significant authorities such as the CAS [Children’s Aid society], police, Crown Attorney’s office, local boards of education, and health unit.” The authors also recommended a national strategy to “combat child sexual abuse.”

Regardless of their scope or purpose, the overall theme of these various reports and initiatives is that youth prostitution represents a form of sexual exploitation and that new policy strategies are necessary to protect children and youth in the sex trade. This new policy shift contrasts sharply with the “nuisance” debates that characterized prostitution-related discussions to control and suppress the sex trade during the 1980s.

[8] The phrase “villain to victim” is taken from O’Neil (2001).

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