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Tuesday, October 29, 2013

Sex, Money, Lies and Punishment

Sex, Money, Lies and Punishment

"The timeline of the sexual milestones in a law-abiding young person’s life in Singapore could, therefore, be conceivably presented as follows:


Permissible Activity


Engage in consensual sex without remuneration


Engage and pay for the services of a sex worker


Become a sex worker and engage in consensual sex for remuneration


Watch a film containing explicit depictions of sexual intercourse

As shown in the timeline above, a person may lawfully work as a prostitute for three years before being legally permitted to watch a film containing explicit depictions of sexual intercourse. This exposes a major paradox in public policy. This article is primarily concerned (as are the over 50 men referred to above) with the differing ages at which commercial sex and non-commercial sex become legally permissible, in the context of a legal regime where prostitution is legal...

It appears that the maturity of an 18-year-old is required to conduct a holistic assessment of the benefits and disbenefits of engaging in sex for money. At the same time, this policy recognises the autonomy of adults to make the decision to enter the world’s oldest profession and of persons over 16 years of age to buy sexual services from strangers. Without making any value judgement on this policy, this reasoning can certainly be said to be entirely plausible.

This reasoning starts to break down when the full force of the law is applied to those whose sex workers lie to them about their age by holding themselves out to be 18 years or older when in fact they are under the age of 18...

Almost all the men who have been prosecuted to date in the ongoing series of prosecutions referred to previously claimed that they had no idea that the sex worker they engaged was under 18. Many of them asked the sex worker for her age and she assured them that she was 18-years-old. Some apparently even asked for ID but were refused. All of these men were convicted and given a custodial sentence despite never having intended to have commercial sex with a person under 18 years of age. Herein lies the great paradox of public policy. Here we have a legal regime that allows people to pay others for sexual services on the one hand but punishes them for doing so if, in doing so, through no fault of their own and despite their best efforts, they inadvertently engage the sexual services of a person under 18 years of age. The message this sends to the general public is that there is no safe way to engage the services of a sex worker without exposing oneself to criminal liability. This is a most unsatisfactory conclusion with regard to an activity which, strictly speaking, in the eyes of the law, is as innocuous as flying a kite or walking a dog.

The Courts’ response to this legislative dichotomy has been to issue judgements that betray an implicit disapproval of the buying of sexual services generally, without regard for its legality, and to suggest that each of the men convicted of inadvertently engaging an underage sex worker was the author of his own misfortune for having the audacity to seek out legitimate commercial sex in the first place.

He chose to use the services of a commercial sex worker. He chose to take the risk that she may well be below 18 years of age. He chose to be reckless and therefore must bear the consequences.

With respect, the legislative dichotomy referred to above seems to have, quite understandably, created confusion in the Courts on the legal legitimacy of commercial sex in Singapore generally. In various other jurisdictions, debate has raged on whether prostitution should be legal. In jurisdictions where prostitution is illegal, the main argument for decriminalisation is removing the socially damaging impact of criminal gangs and human traffickers from the sector and the benefits that regulation can bring to public health, public safety and the protection of vulnerable minors. The debate on whether to criminalise prostitution has been conspicuously absent in Singapore, from which one would have to presume that there is no public support for the idea. However, also absent is the most significant justification for decriminalising commercial sex: full regulation.

Although there is some regulation of the sex industry in Singapore, this has yet to result in the benefits one would expect. Singapore has, for the last few years, been ranked by the US State Department as a Tier 2 trafficking destination... some minors continue to be exploited in the sex industry despite the inclusion of ss.376B and 377D to the Penal Code. The latter is due to a combination of factors, but one of those factors is the Government’s “farming out” of its regulatory responsibilities to the general public.

If a person wishes to purchase cigarettes or see an R21 movie, he is required to produce on demand an identification card proving that he is old enough. If he produces a forged identification card which claims that he is old enough, the merchant selling the cigarettes or screening the movie is absolved from all liability. There is no equivalent of s 377D for these industries that would deny these merchants recourse to the defence of mistake. In fact, in the case of the sale of tobacco, the defence of reasonable mistake as to age is explicitly provided for in legislation. Persons selling these goods and services have to be licenced by the Health Sciences Authority and Media Development Authority respectively. The Government sees potential risks to the health and welfare of minors in these sectors and, therefore, regulates their access to them but ultimately does not penalise merchants who are duped by unscrupulous minors.

Sex workers are not licenced per se. They are not legally required to produce identification to their customers on demand. Although sex workers are issued permits to ply their trade by the police, there is no legal requirement for them to produce these permits to customers on demand and no legal consequences for them if they refuse to do so. Nor are there any consequences for them should they provide paid sexual services after lying and explicitly claiming to be over 18 years of age when they are not. This is in stark contrast to the law relating to minors’ purchase of cigarettes. Any person under 18 years of age who purchases, uses or has in his possession a tobacco product is guilty of an offence and liable upon conviction to a fine of up to $300. Only in the sex industry is the party who is deceived, after making reasonable enquiries as to age, guilty of an offence, with the deceiving party remaining innocent.

The untenable position that the law has created is that all of the responsibility for ensuring that a sex worker is old enough to be a legal sex worker lies with the customer who, unlike a statutory licencing authority, has no statutory powers to demand proof of age in order to allow the sex worker to engage in her occupation. To say that a customer has the power to simply refuse to engage a sex worker who cannot produce ID fails to acknowledge that: (i) for obvious reasons, it is common practice for all sex workers to refuse to provide ID; and (ii) that refusal to engage a sex worker who cannot produce ID does nothing to protect underage sex workers from being exploited by actual paedophiles, which is the purported parliamentary intent behind ss 376B and 377D.

The existence of absolute liability in these circumstances muddies the already murky waters of public policy on commercial sex and creates an inherent paradox in the law that can only be resolved by changing the law in one of two ways:

1. Criminalise prostitution: If the public policy on this issue is that prostitution is just bad and not in the public interest, then the only way to express this through legislation is to ban it outright on pain of criminal conviction, whether of the sex worker, customer, brothel owner or some combination of these; or

2. Fully regulate prostitution: If the public policy on prostitution is that it is acceptable because its potential adverse effects on public health, the safety of children and law and order can be properly managed, then the only sensible way to express this through legislation is to create a comprehensive and transparent regulatory regime that clearly defines and enforces what is acceptable and what is not. To do this properly, a statutory board should be established to regulate and licence the sex industry, as has been done in other jurisdictions. All sex workers should be licenced by this statutory board, who would have the responsibility of ensuring that every licensee was over 18, free of venereal disease and entering the sex industry of her own free will. This board would issue a permit which would include a passport photograph and date of birth to each sex worker who would then be required to carry it and produce it upon demand to customers. Customers should be required to demand its production before engaging a sex worker. Having sight of a plausibly forged permit would be a complete defence to any charge of engaging an underage sex worker. Implementing such a regime would not place a financial burden on the state that would be significantly more onerous than the regulation of taxi drivers and doing so could lead to the creation of an environment where the exploitation of child sex workers becomes highly impracticable. In formulating such a regulatory regime, we should draw upon the experience of other developed countries where prostitution is licenced...

Where the accused asked for the sex worker’s age, he was given some credit, particularly if he asked for identification. However, where the accused relied on written representations of the sex worker’s age in advertising material, he was chastised for not making further enquiries, regardless of their futility. For the reasons outlined earlier in this article, an accused person’s lack of knowledge of a sex worker’s underage status should be a complete defence but as this is not the case, it makes sense for it to be a mitigating factor. However, the Courts have insisted on delving into this lack of knowledge to a level of granularity that attaches importance to the number and nature of inquiries made by the accused as to the sex worker’s age. This unfortunately ignores the fact that a sex worker will never produce identification with her name on it as well as the fact that if sex workers and pimps are untruthful in advertising material, they are unlikely to develop a conscience and become truthful when questioned in person. Accordingly, this factor has little bearing on the likelihood that children will be protected from a life of prostitution.

Although not mentioned in the leading High Court authority of Tan Chye Hin v Public Prosecutor, an aggravating factor that the District Court has applied in sentencing is the existence of a wide age gap between the accused and the sex worker. The rationale for this is not immediately obvious. Perhaps it represents a misapplication of the approach taken in non-commercial underage sex cases where both consenting parties are relatively young and about the same age and the assumption is that the sex took place in the context of a juvenile relationship. Under these circumstances, both parties are regarded, to some extent as victims of their own immaturity, and sentences are usually minimal if there is any prosecution at all. However, this cannot be said to be the case in the context of prostitution where there is no suggestion of the existence of a relationship. Surely in the context of a commercial transaction of money for sex, the age of the client cannot be a relevant factor in whether or to what extent the transaction itself is wrongful. Nevertheless, this seems to be the approach taken by the legislature by making ignorance of the sex worker’s age a complete defence for accused persons under 21. The Courts seem to have extended this approach by allowing an accused person’s relative youth to operate as a mitigating factor in itself and accused persons in their mid-twenties have received slightly lower sentences as a result...

The State has taken an unusually hostile stance towards customers of sex workers by stripping them of all defences notwithstanding that they have been victims of deceit. Ultimately, only the state possesses the coercive power and the moral authority to regulate prostitution. Instead, it has chosen to push this obligation onto unsuspecting individual consumers. The current law as outlined above, reflects an inert political compromise between pragmatic considerations regarding the inevitability of prostitution in one form or another, and the preservation of conservative values in society. This has been achieved by enshrining in law a tacit disapproval of commercial sex generally without an accompanying strong public effort to properly gate-keep entry to the sex industry by children. This mere disapproval is as cold a comfort to underage sex workers as it is to members of the public who have served prison sentences for having been deceived by them. They are both victims of a legal framework that, in trying to achieve the important objective of protecting children, has instead focused on deterring legitimate consumers from participating in the sex industry at all in order to avoid the hard work and responsibility inherent in properly regulating it."

Addendum: I would add that for cases where there is no payment, a reasonable mistake is still not a defence if she is under 16.
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