The Jeff Cumberbatch Column – The Nightwalker and the Honourable Member

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.

120 comments

  • Well Well & Cut N' Paste At Your Service

    Lawson old perv…Wynne wont let you watch..lol

    Like

  • Having met many barbadians Hal, I am sure they are very capable of, if not winning a nobel prize, certainly a darwin award

    Like

  • Lawson,
    I have my money on the Scottish Canadians. The Bajans capable of winning any awards are the ones looking forward; the ones dreaming of home will never progress.

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  • Hal bajans are not stupid you just have to read the back of the newspaper to see that…. Bob also known as Monkey ASS Face would like to invite you to his fete bar solid etc…now bajans know, hundreds of people are going to come to this thing, not to wuk-up but just hoping to get a glimpse of this guy LOL …Do you think there would be as much attention paid if it was Natlee the bakers assistant running,? people are going to show up to her events hoping she might blow some guys in the front row.the govt loves the distraction of this stuff. so you dont notice other things going on. As the first job of a new govt I would review all appointments , hirings or promotions that have occurred in the last 6 months to assure they are merit based not political or family cronyism, and roll them back, or re-tender the jobs. ..

    Like

  • @Lawson,

    You are attributing too much thinking to this government. There is no grand strategy in a government that includes Donville Inniss, Jepter Ince and Chris Sinckler.
    If nothing else, Natalee would shake up the snobbery and cloud of ignorance that casts a dark shadow over our governance. I think she should have a policy of sending all unemployed Bajans to Canada. Nothing better than black pudding and souse in Montreal on a cold winter’s day.
    Seriously, you are right. Governments hand out jobs as the price of electoral support. They have lost the concept of governing in the interest of the entire nation. In fact, not a single member of our parliament grew up when this noble idea was part of our political culture.
    Hope you are voting for Natalee, doesn’t matter if you are not on the electoral register, that can be arranged.

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  • I would vote for her, just like trump said what have you got to lose.Hal you are too funny,what are you saying you want a white majority island, Like coals to newcastle or appletons when you could have mount gay Why would you send pudding and souse here …we already have the chieftain of the pudding race haggis But it is not just support, watch, some contracts go out ,that when they are out of power they have a soft landing as a director or partner in a firm. But it is not always the high profile guys, watch the second layer closely.

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  • @lawson April 3, 2018 5:18 AM “Having met many barbadians Hal, I am sure they are very capable of, if not winning a nobel prize, certainly a darwin award”
    http://www.darwinawards.com/
    Darwin Awards
    http://darwinawards.com/darwin/darwin2018.html
    2018 Darwin Awards winners

    Kindly note that no Bajan has even won a Darwin Award.

    Like

  • Nor have we won any Ignobel prizes
    https://www.improbable.com/ig/winners/

    Like

  • @lawson April 3, 2018 5:18 AM “Having met many barbadians Hal, I am sure they are very capable of, if not winning a nobel prize, certainly a darwin award”
    http://www.darwinawards.com/cgi/search.pl?keywords=canada&maxresults=40&swishindex=darwin.data&swishindex=stupid.data&swishindex=legend.data&swishindex=personal.data&show_description=yes

    Can’t find any Bajan Darwin Award winners, but it looks as though our Canadian friends are well represented, perhaps over represented.

    Lolll!!!

    Like

  • @Hal Austin April 3, 2018 1:42 AM “I am not sure why these Bajans in Canada are always referring to an effective third world country as the home of progress. Canada punches above its weight because it is a white majority country. Please remind me of the last Nobel Prize winner from that sorry country?”

    Arthur Macdonald–was awarded the 2015 Nobel prize in physics; and below some others who went before him:

    Sidney Altman
    Frederick Banting
    Saul Bellow
    Willard Boyle–2009 Nobel prize inphysics
    Bertram Brockhouse
    William Giauque
    Gerhard Herzberg
    David Hubel
    Charles Huggins
    John Macleod
    Rudolf Marcus
    Robert Mundell
    Alice Munro–was awarded the Nobel Literature Prize in 2013
    Lester Pearson
    John Polanyi
    Myron Scholes
    Michael Smith
    Ralph Steinman–was awarded the 2011 Nobel Prize for Physiology or Medicine.
    Jack Szostak–was awarded the 2009 Nobel Prize for Physiology or Medicine.
    Henry Taube
    Richard Taylor
    William Veckrey

    Like

  • I am not talking about people who moved to the US before establishing themselves.

    Like

  • Malcolm Worrell

    Bush Tea informs us at length and astonishingly, on April 2, 2018 12:50 PM that

    “Leadership requires a level of COMPETENCE that can, not [sic] only sustain one’s moral and physical requirements, but that has enough reserves to bring along the weak and vulnerable too….

    “Bushie said NOTHING about ‘morals’……. except to re-emphasise the term BRASS BOWL to focus on the fact that, from a moral perspective, there is ABSOLUTELY no difference between Natlee, our current politicians… and 99.99% of all brass bowl Bajans….”.

    And that, right there, is the true voice of the true fascist personality. It’s remarkable to see it grazing in the wild. Quick, children, take a picture. You are all idiots, all of you, and only someone who tells you are idiots, every single day, can save you from your idiocy.

    Like

  • Is there a reason why some of you so often attack those who attempt to write on an issue/subject matter, as opposed to you adding your two cents worth to the same topic? Not only on this forum but it is pervasive throughout the land. Bunch of Rass Hole dummies will get there, wouldn’t unpick their teeth, hang back like some catatonic fool, but are very adept at going after the person bold and brave enough to speak the truth.

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  • @Malcolm Worrell, look mister, enough of this shit with you. I’ve spent more than half my life in the pissing cold espousing the intelligence and virtues of Rass hole bajans, now I’m back here living and I can’t help but realized I was wrong, dead phucking wrong. Your assessment of BUSH TEA being an idiot is exactly what I’m talking about. Every time someone black doesn’t agree or speaks the truth that person according to bajans is ” A real cunt or Rass hole idiot.” Then, you wretched bastards take in the gobshite, your words from every white or cooley man as gospel.

    Like

  • Whitehill April 3, 2018 1:22 PM

    Said in a robust language, but spot on. It is the Bajan crab mentality.

    Like

  • @whitehall

    Ignore ‘Malcom Worrell’ this is John when he gets bored.

    #JA

    Like

  • I cracked up when I saw the Sputnik news …. clearly, Russia is looking to interfere in our erections!!

    Like

  • Sorry, I am not Chinese …. slip … elections!!

    Like

  • … ah, I get it, Russia and China are in corrusion!!!!

    … sorry, collusion!!

    Like

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