The minor offences act and prostitution in Barbados: new cloth on an old garment

• Author: C. G. Hall
• Position: Of the Faculty of Law, University of the West Indies, Cave Hill Campus, Barbados
• Pages: 37-74

THE MINOR OFFENCES ACT

AND PROSTITUTION IN BARBADOS;

NEW CLOTH ON AN OLD GARMENT

C. G. HALL *

For the law made nothing perfect, but the bringing

in of a

better hope

did **

There is, perhaps, no more emotive subject of the criminal law in

the Commonwealth Caribbean than vagrancy. With its deep-rooted

historical associations, it represents to some a vestige of colonial power

symbolising the domination of the planter class and the legislative

armoury of

repression.

Paradoxically, the substance, if not also the form,

of vagrancy legislation is still to be found in the catalogues of minor

crimes in every jurisdiction of the region. In the centenary year of its

enactment, the Government of Barbados rightly determined to abolish

the Vagrancy Act in this jurisdiction and so, early in 1997, it introduced

a Minor Offences Bill to do just that But, in its passage through

Parliament, there was an unexpected twist Both in the House of

Assembly and Senate critical scrutiny was focussed by some, and very

vocally, on the clauses of the Bill relating to prostitutes and the debate

then moved to the public domain. The proposed provisions, lifted

verbatim from the Vagrancy Act, were characterised as repressive of

prostitutes, who were to be perceived not as purveyors of sex, disease

and moral ruin but, rather, as victims of a social order which paid

insufficient regard to the poor, the uneducated, the unemployed, the

marginalised. For many, nothing less than the de-criminalisation

of prostitution would suffice. As a consequence, Government

Of

the

Faculty

of Law, University of

the

West

Indies,

Cave

Hill Campus, Barbados.

Epistie

to

the

Hebrews,

7:19.

demonstrated its political acumen

and

sensitively withdrew

the

Bill

for

further consideration.

It was

re-introduced

in

November,

1997 and is

now

law.

The prostitution debate thus neatly raised

the

dilemma

of the

relationship between law and public opinion. Of public opinion,

we can

safely

say

that

it is

often transient, rarely unequivocal

and

seldom

coherently expressed- Those

who

argue that

the law

should follow

behind

it,

such that

it can

count

on the

support of the majority,

are

thus

prone

to be

wrong-footed. Equally, those

who

advocate that

the law

must lead public opinion

to

what legislators think

is

right only lead

the

Jaw into disrepute

if it is

self-evidently out-of-step with popular

and

enduring sentiment How Government resolved this dilemma

in

relation

to the prostitution provisions of the Minor Offences Bill, doubtless will

provide many fascinating insights

for

that vast company

of

'experts'

whose appointed task

is,

through

the

media,

to

investigate these things.

One object of this paper is

to

question,

in

legal terms,

the

basic premise

upon which

the

prostitution debate was predicated - that there

is or

was,

in prostitution

itself, as

distinct from some

of its

specific public

expressions, something

to

de-criminalise.

From whatever perspective we regard prostitution,

it

remains

a

social

fact which

has

resisted

all

attempts

to

eradicate

it

through

the

intervention

of the

criminal

law. It

follows that there

are

severe

limitations upon

the

ways

in

which

the law can, and

perhaps should,

intervene to discourage women who have chosen

to

practise prostitution

and

men who

have chosen

to

resort

to

them.

At

root,

two

questions

address us.

The

first is whether

it is

appropriate

for the

law to intervene

in issues of personal and,

for the

most part, private morality and,

if

it

is,

when

it

should

do so. The

second

is how

society, expressed through

units such as the family,

the

churches,

the

schools,

the

welfare agencies,

the media

and

government

itself, may

effectively identify

and

shape

ethical

and

moral values, educate

a

proper understanding

of

sexual

relationships

and

confront

the

endemic causes of social dis-ease

The

law alone cannot change attitudes

to

these matters.

It can at

best only

reveal

and

fortify them,

000000O000000

In April 1995, the Attorney-General of Barbados, the Hon. DAC.

Simmons, Q.C., gave an undertaking to the House of Assembly that

within two years his Government would introduce entirely new

legislation to deal with minor crimes and would abolish, thereby, the

Vagrancy Act, Cap, 156 (1897).' That undertaking was given in the

Debate on the Second Reading of the Vagrancy (Amendment) Bill

Inter

alia,

the amending Act (1995-6) made two important changes. It

wisely abolished the ancient jargon which characterised vagrants as idle

and disorderly persons, rogues and vagabonds and incorrigible rogues,

such that former vagrants became simply 'offenders';2 and it created a

new offence of accosting, molesting, threatening or harassing in public

places including beaches.3

This latter reform generated considerable debate and served to focus

critical scrutiny on the broader question of whether it was right to retain

vagrancy legislation in a modern criminal code. Thus to some

parliamentarians, the Vagrancy Act of 1897 was an attack upon the

poor, the marginalised, the vulnerable. To Mr.

L.

R. Tull in the House

of Assembly, it was legislation which was, for this reason, "shaped in

wickedness and conceived in sin",4 To Mr. F. J. Stuart, on an earlier

1 House of Assembly Debates, First Session, 1994-99, 18 April

1995,

p.

144.

2 As in Bermuda (Summary Offences Act 1926, Tit. 8, Item 33) and the Turks and

Caicos (Summary Offences Act, Ch. 25

).

3 By

5,2(a)

amending

s.2(g)

of the principal Act. Section 2(1) (f) of the Minor Offences

Act, 1998 incorporates this provision, and under

s.-s.(2)

defines to 'harass' as to "(a)

use words, gestures and actions to annoy, alarm or abuse a person; (b) insult, taunt

or challenge a person in a manner likely to offend; (c) use obscene and profane

language to intimidate a person; or (d) disturb or irritate especially by continued and

repeated

acts,"

Government resisted the temptation to borrow the definition in s. 2,

Domestic Violence (Protection Orders) Act, 1992-4 and seems to have relied largely

on the definition in Black 's Law Dictionary 6th Ed. (1990) (Model Penal Code,

'§250.4). It is unclear whether

s.2(2)(a)

requires a person to be annoyed or alarmed

or whether a mere intention to annoy or alarm is sufficient. If the latter, the

harassment may be difficult to prove; likewise the intention to intimidate under

s.2(2)(c). If

the

former, then this species of harassment, being wholly subjective, is

for this reason undesirable. Surely, it should be necessary, as in s.2(2)(b), that any

reasonable person would be 'likely' to be annoyed or alamed, likewise in

s.2(2)(d)

-

a reasonable person should be 'likely' to be disturbed or irritated by D's acts,

whether continued or repeated or otherwise,

4 House of Assembly Debates, Second Reading of the Vagrancy (Amendment) Bill,

First Session, 1994-99, 18 April

1995,

p.

1111:

cf. Psalm 51:5