Edwards, Kirsten --- "Soliciting: What is the Go?" [1999] AltLawJl 14; (1999) 24(2) Alternative Law Journal 76

CS: I’m a little bit nervous because I’ve never done this before. But what is the go?

J: What do you mean?

CS: My boyfriend and I want to know what is the go.

J: You’re not the police are you?

CS: No.

J: Well it’s $65 for oral but I don’t do sex.

John was then arrested and charged under s.19 of the Summary Offences Act 1988 (NSW) (the Act) which makes it an offence for inter alia ‘[a] person in a public street to solicit another person for the purposes of prostitution ... near or within view from a dwelling, school, church or hospital’.

‘Soliciting’

There is no doubt that John agreed to exchange sexual services for money. John has in fact previously engaged in sex work, although he stated that he had no intention of doing so that evening until Constable Smith approached him.

The issue in John’s case, however, is not whether John is a ‘prostitute’ nor even whether he has been ‘entrapped’. The issue is whether his conduct could be regarded as soliciting for the purposes of prostitution.

So what is it to ‘solicit for the purpose of prostitution?’

Prostitution

A fundamental starting premise is that in Australia prostitution itself, that is, the exchange of sexual services for payment,[2] is not illegal.[3] For example, the Victorian Full Court has commented ‘that the Legislature, both in England and Victoria, has studiously refrained from making prostitution itself an offence’.[4] John’s conduct must involve more than an exchange of sex for money before he can be considered guilty of an offence.[5]

Statutory interpretation

Any court when presented with a statutory provision will endeavour to interpret the meaning using the natural and ordinary meaning of the words in accordance with the guidance provided by the Acts Interpretation Act 1981.

Natural and ordinary meaning

The most common and often quoted dictionary definition of ‘solicit’ is contained in the Shorter Oxford English Dictionary: ‘to accost or importune for immoral purposes’. Other dictionary definitions use words such as ‘flaunt, pester, beg, incite’. What can be drawn from these words is a suggestion of activity and conduct going beyond a discussion or mere presence.

Case law

No case concerning the definition of ‘solicit’ under s.19 has come before a NSW Superior Court. However, Jitjarden v Thompson (1995) 38 NSWLR 611 involved a charge under s.16 of the Act which prohibits the use of massage parlours and other premises for the purpose of prostitution.

The case suggests that the separate offence of using premises for the purposes of prostitution does not require ‘accosting, importuning or flaunting’. This holding, however, was made in the context of distinguishing street offences from those involving ‘massage parlours’. Allen J states (at 613-4):

soliciting for prostitution commonly conveys an element of pestering or flaunting when used in the context of street offences and the like. In respect of those offences it is the pestering, the flaunting in public, that is the ‘more repugnant aspect’ which legislation prohibiting soliciting in streets or public places is designed to prevent or at least discourage

Allen J also makes a distinction between an offer of prostitution and the acceptance of an offer, holding that only the former would relevantly constitute ‘soliciting’ (at 614).

A review of cases where conduct was found insufficient to constitute soliciting illuminates the necessity for some overt conduct or intrusion into privacy.

In Fingleton v Bryson (1980) 26 SASR 208 an ad was placed in the local newspaper for a ‘discreet visiting service for mature gentleman at home, motel, house’. A policeman rang the number, without disclosing his identity and arranged to meet the defendant at a hotel for the purpose of sexual intercourse. At the bar of the hotel he said to the defendant ‘I am a bit nervous, I’m from the country and I don’t know much about this sort of thing’. She then informed him of the cost and scope of her services. Her conduct was held to be outside the scope of soliciting as it did not amount to ‘accost[ing] ... or an invitation to other persons’ (at 212).

In Newman v Paties [1979] Qd R 402 a police officer rang ‘Sheeba’s Home Massage Service’ and made an appointment for a massage. He then said ‘before we go, can I only get a massage or can I get something else?’ The defendant replied ‘Well, if you want you can have sex with me but it will cost you extra’. A discussion about price ensued.

Lucas J stated (at 403):

in order to constitute soliciting by a woman there must be an active approach from the woman charged with the offence. In this case ... the moving spirit throughout the whole of the transaction was the police officer.

English and Canadian cases have also consistently required some level of accosting or importuning to constitute ‘soliciting’.[6]

Statutory intention

Soliciting for the purposes of prostitution was first made an offence in NSW in 1908 when a provision concerning soliciting was added to the offence in the Vagrancy Act 1902 targeting ‘idle and disorderly persons’. The precursor to s.19 of the Summary Offences Act 1988, s.8A, was added to the Prostitution Act 1979 in 1983. In the second reading speech concerning the amendment to the Prostitution Act 1979, Attorney-General Frank Walker stated:

The aim of this legislation is to ensure that persons who reside in basically residential areas are not subjected to the flagrant and unseemly aspects of prostitution, which cause severe inconvenience.[7]

This description is consistent with the aims of similar sections in different jurisdictions, which have been interpreted in the cases to be ‘[to] clean up the streets, to enable people to walk along the streets without being molested or solicited’,[8] to prevent behaviour ‘offensive and annoying to citizens’[9] and to prohibit a ‘contribution to public inconvenience or unrest’.[10]

The result

A cursory overview of relevant authority and the apparent purpose of s.19 of the Summary Offences Act 1988 suggest that any attempt to prosecute John would be both outside the terms of the section and contrary to legislative policy. John’s conduct, far from being offensive, or involving accosting and importuning, was to offer a polite greeting as he strolled past a car. His agreement, when approached, to provide sexual services for money has never been considered illegal conduct. The police were made aware of the case law prior to the hearing but proceeded regardless.

John was acquitted by a magistrate of the charge. While his claim that he was not working was doubted, the magistrate accepted that he had merely provided information in answer to a question and that his behaviour could not constitute soliciting for the purposes of prostitution.

Carol

The next case does involve some conflict of evidence.

The police version

The facts, as alleged in the police brief, were that Carol had approached their unmarked car and said ‘do you want a lady? It’s $50 for French, $80 for French and sex and $100 for half an hour’, the police officer stated ‘OK I’ll have French for fifty’.

Carol was then arrested ‘for soliciting’.

Carol’s version

Carol stated she had been walking to meet her boyfriend. A car passing by very slowly came to a stop next to her. The driver caught her eye and smiled and she went over to the car. The following conversation took place:

Police: Hi, how are you, are you a worker?
Carol: I do work.
Police: What do you charge?
Carol: What were you after? ... it’s $100 for half an hour and you pay for the room.

She was then arrested.

The result

In Carol’s case the magistrate opened his decision by stating that at first glance the facts of the case — a woman in an area well known for prostitution discussing prices for sexual services — seemed obviously sufficient to base a soliciting conviction. But he then stated that the conduct must meet elements of the charge. He accepted that, on the evidence, the police officer had made the first move when he slowed down, made eye contact and smiled. The conversation that followed was a discussion as to prices. The magistrate found that Carol’s behaviour could certainly not be considered ‘accosting’ and, therefore, there was real doubt if it could ever be considered ‘soliciting’.

Commentary

Obviously two incidents, albeit close together, have little significant precedent value, nor can they be conclusive evidence of a policing trend. What they do illustrate is both a misunderstanding by some police of legal requirements and perhaps a more fundamental problem in the prioritisation of police resources.

The solicitor acting for Carol was approached by one of the arresting officers after the hearing. He informed her that the next night he had seen Carol doing the same thing, at the same place for the same purposes and that ‘next time [he] would lock her up’. The solicitor replied ‘lock her up for what? She’s just been found not guilty of soliciting, she’s not doing anything wrong.’

The basis of the police officer’s concern was that he had received complaints from residents about undesirable ‘soliciting’ practices in the area. The solicitor’s answer gets to the core of the problem: there was no soliciting. Residents complain about many things, especially the congregation of young people in any area, but that does not make those practices illegal.

The areas where police regularly patrol for soliciting, such as Kings Cross, Darlinghurst, Canterbury and Surry Hills, require policing for a number of genuinely illegal activities — ranging from violent offences and robberies to minor theft and vandalism. Despite the difficulty of obtaining detailed statistical information on the allocation of police resources,[11] anecdotal evidence from a number of sources suggests that police resources are being used to target activity which lies on the borderline, if not well outside the scope of, soliciting for the purposes of prostitution.

A spokesperson for Sex Worker’s Outreach Program (SWOP)[12] reports that a number of sex workers have been approached by police and asked for prices. When they have replied they have been arrested and charged under s.19 of the Act. The problem this practice presents for street sex workers goes beyond the expense and inconvenience of a trial. Sex workers have been unaware that this conduct cannot be considered illegal ‘soliciting’. Many of them plead guilty to the offence or do not raise the issue of what conduct constitutes ‘soliciting’ in their defence. Some sex workers simply assume they will be found guilty and fail to appear at court. It is important to remember that street sex workers are some of the most disadvantaged members of the community, rarely represented by lawyers or appraised of their legal rights. It is a common assumption by sex workers that police versions will be preferred to their version in court and it is easier to accept a fine than to contest sex work charges.[13]

The conviction rate for those charged in NSW under s.19 of the Act was 98% in 1990-94 and 95% in 1994-97.[14] This seems a strikingly high rate considering the obvious misunderstanding which some members of the police have of the elements of the charge. The conviction rate leads to the suspicion that the figures are probably more reflective of the fact that sex workers routinely plead guilty to s.19 charges for the reasons explored above.

This police practice of approaching street workers and asking for prices is one of a number of concerning issues which have arisen during police ‘blitzes’ on prostitution ‘hot spots’ such as Forbes St, Darlinghurst and Canterbury Road, Canterbury. Another practice of concern is of the placement of ‘no loitering’ signs in Canterbury Road. This allows police to intervene and interfere with an otherwise legitimate activity — standing on the street.

The police ‘blitzes’ have come as a result of residents’ complaints about the undesirable side effects of prostitution — unseemly disposal of used condoms and needles.[15] While it is understandable that any resident would find this unpleasant, sex workers argue that these problems can be adequately addressed by better provision of waste facilities and needle disposal bins.[16] The police blitzes merely add to the vicious cycle of poverty whereby sex workers are compelled to go back onto the street to pay for fines they have accumulated undertaking street sex work.[17] SWOP also points out that if police continue their current practices sex workers will be driven to more dark and inaccessible areas, thus increasing the risk of violence and decreasing their ability to insist on safe sex practices. The current cycle of police action in response to residents’ complaints overlooks these more fundamental and sinister consequences.

Conclusion — soliciting, why bother?

The justification for any law prohibiting the exchange of sexual services for money is emotionally and politically charged and therefore unlikely to be easily resolved. But if these laws are to exist at all in NSW, police resources should be focused on conduct that Parliament has decided as most meriting attention. It has been pointed out that s.19 of the Summary Offences Act 1988 has never been used to charge a client of a sex worker, despite being equally applicable.[18] Sex work will continue to exist while there is demand from clients. Furthermore, provisions designed to capture exploitative conduct such as living off the earnings of prostitution attract a higher penalty, suggesting that they are regarded as more serious.[19] Yet between 1990-1997 there were 4472 appearances in local courts by people charged with ‘soliciting’ under s.19, resulting in 4092 convictions. In contrast, there were just 50 appearances for people charged with ‘living off the earnings of prostitution’ and 35 convictions.[20]

Sex workers may be the most visible dimension of the trade in sexual services but they are typically the most vulnerable. Practices used by the police to remove them are both contrary to principles of law and contrary to the purposes underlying the law.

References

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[1] All names in this article are fictional.
[2] See s.3(1) of the Summary Offences Act 1988 (NSW).
[3] Bridgett, Madeleine, ‘Sex Work and Myths’, (1999) 7 Policing Issues and Practice Journal 39 at 41.
[4] Barrington v Rochford [1926] ArgusLawRp 75; [1926] VLR 492 at 495.
[5] This approach seems to be based on the philosophy exemplified by the Wolfenden Report (the Report of the Committee on Homosexual Offences and Prostitution 1957) that the criminal law should regulate aspects of sexual behaviour only where it causes harm or offence to society and remove itself from private matters.
[6] See Ex parte Langley (1953) 70 WN 217, Weisz v Monahan [1962] 1 WLR 262, Hutt v The Queen (1978) 82 DLR(d) 95.
[7] NSW Parliamentary Hansard, Legislative Assembly, 29 March 1983, at 5243.
[8] Behrendt v Burridge [1972] 1 WLR 29 concerning s.1(1) of the Street Offences Act 1959 (UK).
[9] Fingleton v Bryson (1980) 26 SASR 208 at 211 concerning s.25 of the Police Offences Act 1953-1979 (SA).
[10] Hutt v The Queen (1978) 82 DLR (2d) 95 at 102 concerning s.195(1) Criminal Code (Canada).
[11] Such information cannot be obtained from the NSW Bureau of Crime Statistics and Research. A written request must be made to the Police Service itself. At the time of writing the author is still waiting on approval for a request for this information.
[12] Interview with Madeleine Bridgett, Project Officer for the Sex Workers Outreach Project in Australia, 19 December 1998; for police conduct towards sex workers see also Madeleine Bridgett ‘Sex Work, Feminism and Violence — The Need for Law Reform’, 1998 unpublished SWOP paper; Treleaven, Jane, ‘Sex Workers and Sexual Assault — A National Perspective’, Proceedings of the National Conference on Sexual Assault, 1996, p.298.
[13] Interview with Jane Sanders, Senior Solicitor of the Shopfront Legal Centre, Kings Cross, 25 March 1999; Interview with Madeleine Bridgett, Project Officer for the Sex Workers Outreach Project in Australia, 19 December 1998; interviews with a number of street sex workers who preferred to remain anonymous.
[14] Brown, D., Farrier, D., Neal, D., Weisbrot, D., Criminal Laws, 2 edn, Federation Press, 1996 at 1010.
[15] Discussion with two Kings Cross police officers who preferred not to be named, on 11 September 1998 and 25 March 1999.
[16] The increased presence of disposed needles in residential areas has been directly linked by SWOP to the closure of ‘shooting galleries’ in Kings Cross.
[17] See Treleaven, Jane, ‘Sex Workers and Sexual Assault: A National Perspective’ Proceedings of the National Conference on Sexual Assault, 1996.
[18] Brown, D. and others, above, p.1010. In fact it is arguable that some police conduct in approaching sex workers would come close to the provisions of s.19 ‘soliciting’.
[19] Australia is a signatory to the UN Convention on the Elimination of All Forms of Discrimination Against Women which includes Article 6 ‘Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women’.
[20] NSW Bureau of Crime Statistics and Research 1999; Brown, D. and others, above, p.1010.