Prostitution: A Socio- Legal Viewpoint

By Emmanuel Opoku Acheampong

Like other social facts, why does prostitution thrive in the face of extreme social condemnation, and why does a practice which violates existing moral, customary, religious, and other social rules exhibits such veritable vitality? Why have prohibitive rules been incapable of constituting a dissuading force to personnel of the profession and others contemplating entry? Even in social organisations where the practice is stringently outlawed and excites the gravest form of social repression, prostitution still displays a phenomenal resilience, subsisting in the face of overriding threat of punishment. To unravel the perplexity surrounding this immutable profession, we shall conduct this analysis from two different perspectives.

(1)The Sociological Perspective

By our physiological constitution as humans, erotic gratification forms a part of our make-up. To obtain this gratification, sexual institutions operate within any social organisation as outlets for the expression of such erotic gratification. However, by the mores operating within the society, these sexual institutions are viewed differently and sanctioned accordingly with respect to the predominant values of the society. Of all the sexual institutions, marriage and its subsidiary patterns (courtship and concubinage) “constitute the chief cultural arrangement through which erotic expression is held,’ although marriage remains the most legitimate outlet for such expression. Consistent with this therefore, if an individual obtains sexual gratification from courtship or concubinage, the practice though disapproved of, is nonetheless tolerated. If the individual already mated to another seeks erotic expression from another individual other than his mate, the act is seriously condemned because it is considered inimical or disruptive to the institutional order for which he is a part.

What if the individual seeks erotic gratification from an outlet detached from approved sexual institutions, and where the extent of his gratification is measured by his bargaining power or his reward other than emotional attachment which is a basic feature of socially approved sexual institutions? In other words, how does society view the individual who uses sexual stimulation or charms “for ends that are non-sexual”? Apparently, by society’s evaluation such individual is held in high disrepute; for by gradation, the institution in which he operates lies at the bottom pile of all sexual institutions which is held in derogation because of its ephemeral, mercenary, and indifferent nature. If this assertion holds true, why then does a practice eliciting such extreme social censure and personal derogation exhibit such profoundly inimitable vivacity? Without doubt, there could only be one reason - prostitution performs an indispensable social utility or function.

Why is prostitution desirable?

If we imagined a society without prostitutes, (which is utterly impossible anyway) such imagination must be consistent with a society where conditions are equal for all individuals. This means: equal access, equal means, equal opportunities, equal abilities, equal wealth, etc. Since such a condition is unattainable even in a communist society, the concept of dominance which itself is a product of inequality must stimulate other forces to compel the individual to express his sexual needs in institutions other than that approved by society. Now, even if such a state of absolute equality was attainable, to be able to extinguish prostitution from the social formation, erotic gratification must be obtained solely within sexual institutions approved by society. In other words, an individual must seek erotic expression only through marriage, courtship or concubinage. However, the defects of person and the lack of certain personal or physical attributes may hinder certain individuals attaining the desirability required to function in these sexual institutions. The words of Kingsley Davis in his article The Sociology of Prostitution may further illuminate this view. He wrote:

…all men are not born handsome nor all women beautiful. Instead there is a perfect gradation from extremely attractive to extremely unattractive, with an unfavourable balance of the old and ugly. This being the case, the persons at the wrong end of the scale must, and inevitably will, use extraneous means to obtain gratification.” (emphasis mine)

And which better means could the individual obtain his erotic expression. Should he be denied access to prostitutes, the only extraneous means available to him, having been denied his influence, authority and dominance in a society where all persons are equal, would be the use of force and fraud for the fulfillment of a desire which is inalienably composed in his physiological constitution. Now back to reality. Who are the ones who patronize prostitutes? Is it the poor, the ugly, the unmarried or the undesirable? Contrary to misperceptions that it is these groups who obtain the services of prostitutes, it is in fact the married and many others in stable relationships who sustain the profession in its flourishing state. Since it is the purchasing power that determines the extent of the individual’s satisfaction, the buyer seeking extreme fulfillment, may depending on his financial power obtain to his desire a degree of satisfaction which would otherwise not be available to him in his conventional, mundane, and monotonous sexual institution. Moreover, the gradation of prostitution is always in line with the ecological or economic niche in which the prostitute operates. Therefore, if the prostitute allegedly operating at Soldier Bar charges a maximum of GH? 4.00 for an act, it is only reflective of the ecological niche in which she operates, and not that she is awfully cheap or lousy.

Is prostitution driven by economic need?

Now to the assertion that poverty is what drives prostitution. While this may partially be true, to tie prostitution down to solely economic causes is to belie reality. Even if we assumed poverty as the one and only cause of prostitution, assuming again that a significant economic or financial progression in society leads to the creation of alternative means of employment for girls in the trade, would many girls not leave the trade and render the profession momentarily undesirable? Yet, with this resulting scarcity of prostitutes, the other factors that interplay with the economic causes would inevitably raise the demand occasioned by the diminishing supply of prostitutes. This would invariably increase the “effective demand in the form of price”, so that many other girls who had given up the profession for other jobs and many others who had not encountered prostitution may be enticed to take a shot at the resulting economic boom. In the end there may be much more prostitutes than ever before. The fundamental feature of prostitution thus shall always remains impregnable; in that poverty does not increase its rate, neither does wealth diminish it. Its degree in a society is however determined and influenced by other factors, and how they interplay with economic necessity.

(2)The Legal Perspective

Our legal analysis takes the view of whether or not prohibitive rules have been effective in restraining the individual contemplating joining prostitution, and whether or nor a variation in legal rules is required to accord the profession a fixed certainty.

On Sunday, January 20, 2008 policemen were reported to have arrested over 150 alleged prostitutes and their “clients” apparently operating under the purported authority of S.126 (1) and (2) of the Criminal Code, 1960 (Act 29). The relevant section reads:

“Any person who persistently solicits or importunes in any public place or in sight of any public place for the purpose of prostitution shall be liable for a first offence to a fine not exceeding ‘500,000 and for a second or subsequent offence shall be guilty of a misdemeanour.” The manner of the arrest and the subsequent treatment of the alleged sex workers reinforce the populist orientation of the police and their increasing propensity to subvert the fundamental principles of investigation for populist gains. Acting on pre- information, the police displayed in characteristic fashion, their obstinate failure to submit to basic investigative criteria which inevitably would have yielded the arrest of the suspected operator of the brothel who to all intents and purposes ought to have been the principal object of investigation and arrest. But in a move which has become a predictable feature of police activity, they scurried the whole process and bungled the object of the operation. Over 150 alleged sex workers were reported to have been arrested, yet the principal object under whose direction the illegality was sustained eluded the police in a manner which invokes sobering consideration of the increasingly inability of the police to conduct simple investigations without resort to guns, armour and other adorned police accoutrements. In any case, for a policeman to be imbued with power and authority to arrest a suspected prostitute, he must satisfy himself with at least one of the following facts:

(i) That the suspected person persistently solicits or importunes in a public place for the purposes of prostitution.

(ii) That the suspected person knowingly lives wholly or in part on the earnings of prostitution.

Now, to arrest hordes of alleged sex workers merely because they happened to be in or around a suspected brothel is most illustrative of the decreasing wave of investigative depth bedeviling the police. The report further indicated that the numbers arrested included 77 men suspected to be clients to the prostitutes. Which legal rule, we may ask, invests the police with authority to arrest suspected clients to prostitutes; as no where in the prohibitive rules does liability inveigh on a person for patronising a prostitute. To what authority then can the police lay claim to the propriety of their action? Must the law submit and subordinate its authority to the notion of what the police deem to be socially desirable and acceptable? For how long do we have to contend with the police substituting their own schemes for those schemes determined by the law? Again the subsequent treatment of the alleged sex workers also raises certain fundamental legal issues. They were reported to have been kept at the Department of Social Welfare in Madina for onward plans towards their rehabilitation. Now, even if we were satisfied that the offences had been committed, on what basis could their continued detention be justified after the expiration of the 48 hour police detention period? Which legal authority has power and authority to determine the violation of a prohibitive rule? By arrogating themselves the power to detain the suspected prostitutes for the purposes of rehabilitation when their offences have not been proven in a court of law is clearly a violation of their fundamental human rights.

Should Prostitution Be Legalised?

To be able to conduct a fair and objective analysis, we must first satisfy ourselves of the impact of prohibitive rules on prostitution. What would constrict the individual in her desire to become a prostitute? As already stated at the outset, the prostitute always has to contend with extreme social disrepute and personal derogation owing to how society views her trade. So therefore an individual contemplating entry into prostitution would surely be constricted in her desire mainly because of the moral condemnation associated with the profession, and not because of the threat of punishment enshrined in prohibitive rules. Now then, if the basic cause of her hesitation is predicated on moral implications, and not because of legal consequences, then the assertion that legalising the act would drive more girls into the profession is untrue, misguided, and superficial attempt to “befog analysis.” Legalising prostitution would rather forestall the present situation where girls in the trade have become objects of persistent harassment and exploitation by the police for personal and wilful desires.

Conclusion

The call for legalising prostitution should not be interpreted in the facile manner that has become synonymous with so-called moralists. Instead, as society progresses and becomes more complex, existing understandings may lend themselves to susceptibilities and provoke variations to accord with existing realities. Therefore, when existing consensus can no longer be justified in line with prevailing circumstances, hypocrisy hiding under the cloak of morality cannot operate to hinder any such variations. The prostitute is already saddled with social indignity. Why not give her the certainty she desires by regularising her act?

The writer is a student of Law @ KNUST, Kumasi eoacheampong@yahoo.co.uk