Jeff Cumberbatch – Chairman of the FTC and Deputy Dean, Law Faculty, UWI, Cave Hill

“…the controversy surrounding Mary Magdalene speaks to centuries of the dominant ideology that shapes values around female sexuality and stigmatizes sex workers on a moralistic premise.” –Kate Edwards, University of Sheffield in “The Conversation” (2016)

For a people alternatively given to either the hagiolatry or denigration of the politician depending on one’s persuasion or current fancy, the entry into the local political fray for the upcoming general election of Ms Natalie (“Natlee”) Harewood, a self-confessed former prostitute, must present a conundrum to the Barbadian voter.

Should she be excoriated as undeserving, given her former vocation, of a seat in the august Lower Chamber or even of the chance to challenge therefor? Or should she be encouraged in her undertaking to be a voice for those likewise vulnerably situated?

There are, of course, those who perceive her candidacy as an admirable venture in the finest democratic tradition and those who have, at the same time, taken the opportunity to compare her favourably, despite, or perhaps because of, her antecedents, with the current membership of the local political class; while there are others, including at least one section of the media, that have played the card of righteous indignation and wondered “aloud “ if we are now prepared “to throw the baby out with the bathwater” and “to fully fling ourselves precariously into the moral abyss…”

Querying when if ever did prostitution become legal in Barbados, that organ’s leader asks, if it is not, “why does “Natlee” and her financier even have the gumption to vy (sic) for a place in our most honourable House of Assembly?” If not, it declaims further, why is there no warrant issued by the Royal Barbados Police Force for Natlee’s arrest? It gratuitously suggests a possible charge of “offending public morals” based on her previous affirmations that she is “a night jobber with an office located in Bush Hill” and that she performs sex acts for a living”. In the same vein, I have seen a social media post that states she has also confessed to being an agriculturalist, but this newspaper is not the place for any further details in that regard.

The indignation of that journal would be laughable if it were not so serious an issue, but that is not the point of my essay today. Rather, I shall seek to explore the frequently bruited and seemingly vexing question as to whether prostitution is criminal in Barbados.

At an elemental level, if we accept prostitution to be a transaction entailing the sale of sexual favours for a material consideration, then it is clear that technical acts of prostitution occur in every instance of transactional sex, whether the consideration for the favours should be in money or money’s worth and whether that transaction is between strangers or between individuals known to each other. The law cannot effectively regulate such conduct by criminalization -except perhaps other than where the sex act involves male homosexuals- and it does not attempt to.

What it does, however, is to prohibit overt displays of the conduct associated with prostitution and its commercialization. As to the criminalization of public conduct associated with prostitution, section 2 of the local Minor Offences Act 1998 provides at (d) and (e):

Any person who…

(d) in any street, highway or public place accosts a passenger and offers to take him to the house or residence of a prostitute;

(e) loiters in any street or highway and importunes passengers for the purpose of prostitution;…

commits an offence and is liable on conviction before a magistrate to a penalty of $2 500 or to imprisonment for 2 years or to both.

Also relevant in this connection, one supposes, is section 3 (1) (c) to the effect that “any person who … wilfully, openly, lewdly and obscenely exposes his person in any street, public road or highway or in the view thereof or in any place of public resort;… commits an offence and is liable on conviction before a magistrate to a fine of $3 500 or to imprisonment for 2 years or both.

My hesitancy to be dogmatic here is based solely on the notoriety of the limited circumstances in which a female may expose her person as compared to her male counterpart.

However, it is the Sexual Offences Act, Cap 154 of the Laws of Barbados, that criminalizes most of the matters associated with the commercialization of prostitution, including the procuration of an individual for prostitution, becoming an inmate of, or frequenting, a brothel [section 13]; being involved in the management of brothels [section 18]; detaining a person against their will in a brothel [section 15]; living on the earnings of prostitution [section 19];or exercising for the purpose of gain, control, direction or influence over the movements of a prostitute in a way that shows that the person is aiding, abetting or compelling the prostitution [section 20].

In summary then, while the concept of prostitution itself at a definitional level may not be criminalized, the local law prohibits its treatment as an organized business and the overt solicitation for this purpose by anyone.

Nor ought it to be thought that it is possible to regard prostitution as criminal for the prostitute’s being in contravention of section 19 (1). This provides:-

A person who knowingly lives wholly or in part on the earnings of prostitution; or in any place solicits for immoral purposes, is guilty of an offence and is liable on summary conviction to a fine of $5 000 or to imprisonment for 5 years or to both.

It might be presumed that this would clearly cover the prostitute herself. However, as the now retired legal scholar and fellow columnist, Clifford Hall, argues persuasively in a 1998 article in the Caribbean Law Review, there are at least three reasons why this may not be so:

First, he notes, the section is a composite of s. 30(5) and s. 32 of the Sexual Offences Act 1956 in England with slight modification. These provisions in the English Act had re-enacted in almost the same words a provision of the Vagrancy Act 1898 (UK) under which male persons who lived on the earnings of prostitution or who solicited for immoral purposes were deemed rogues and vagabonds within the meaning of the Vagrancy Act 1824…”

Second, section 19 of the Barbados Act is included in the fasciculus (bundle) of sections relating to trading in or exploiting prostitution. The position is the same under ss. 22-26, Sexual Offences Act 1956 in England. Neither Act, according to him, purports to declare illegal heterosexual sexual intercourse or other intimacy for payment between consenting adults, nor proscribes explicitly the activities of female prostitutes themselves….Thus the context of section 19 of the Barbados Act appears to exclude any suggestion that it applies to the prostitute herself. If it did, he posits, the soliciting provision of the Act would be otiose…”

Third, he remarks on the disparity of the penalties between those for s.19, which stipulates a fine of $5000 or imprisonment for five years or both, and those under the Minor Offences Act where the maximum penalty is a $2500 fine or two years imprisonment or both. An even greater disparity in penalties in the English law leads him to conclude that section 19 (1) would thus seem to be directed against those, whether male or female, who exploit prostitutes and not against prostitutes themselves.

He notes, finally, that this interpretation also appears to accord with current police practice; where there has never been a prosecution of a prostitute under section 19.

On this basis, prostitution itself is not criminal in Barbados unless the prostitute publicly displays his or her wares by importuning or soliciting individuals or turns it into an business by establishing and keeping a brothel.

A blessed Easter season to all…

I should wish to dedicate this column to the memory of Sir John Connell, eminent jurist, ardent conservationist, learned friend, brother and avid reader of this weekly essay who was called to higher service last week. I shall regret forever not having the opportunity to spend some time chatting with him as per his invitation last December. May his soul rest eternally in peace.