Youth Involvement in Prostitution: A Literature Review and Annotated Bibliography

2. Legislative History and Policy Responses (continued)

2. Legislative History and Policy Responses (continued)

2.11 The Advent of Secure Care

The most current prostitution-related policy strategy locates youth prostitution in the “child sexual abuse discourse”. Such a strategy has enabled government officials to re-examine their role in addressing the youth sex trade from punisher to “protector”.

In May 1996, the Alberta government convened the Task Force on Children Involved in Prostitution to address growing concerns with children and youth involved in the sex trade (referred to as the Forsyth Report, 1997). The Task Force was mandated to examine recommendations from previous reports and task forces, explore effective programs that address youth prostitution, and make recommendations for action to the Alberta Family and Social Services Minister.

The basis of the Task Force’s work confirmed the growing recognition that youth involved in prostitution are victims of child sexual abuse:

The Task Force believes these children [young prostitutes] should be seen as victims of abuse. The children, if not abused while at home, are certainly victims of sexual abuse when they are used by either a pimp or john. It is within this philosophical framework that the Task Force formed its recommendations (1997: 3).

A corollary to this philosophical framework was the Task Force’s suggestion that prostitution is not a “…choice that children make from a healthy vantage point” (1997: 3).

The Task Force made several recommendations to help address the “sexual exploitation” of children involved in prostitution, including:

  • The need for “collaborative case management.”
  • More charges under section 212(4) of the Criminal Code.
  • A media campaign to raise awareness, and improved prevention and intervention techniques.
  • A “Children Involved in Prostitution Act” to provide “…legislative support for a continuum of services for children involved in prostitution.” This legislation would define young prostitutes as “victims of sexual abuse,” provide a continuum of service approach for youth interested in exiting prostitution and for those “not wishing to leave,” and contemplate penalties directed at pimps and johns.

In response to the Forsyth Report, the Alberta government introduced the Protection of Children Involved in Prostitution Act (PCHIP Act), which as a child welfare response “…protects children involved in prostitution and helps them to end their involvement in prostitution” (Deis et al, 2000: 1). The new legislation defines children involved in prostitution as “victims of sexual abuse,” therefore requiring “victim-protection services and support.” This Act empowers police and child welfare workers to detain children “…whose safety is at risk, but who will not voluntarily end their involvement in prostitution” (Alberta Government Press Release, March 1999). Children are detained in “protective confinement” for a 72-hour assessment, where they receive emergency care and treatment. The Act also empowers police to arrest pimps and johns who purchase sexual services from a youth. The PCHIP Act came into force on February 1, 1999.

The constitutionality of this policy response was challenged early after the legislation was introduced. In September 1999, two youth were detained under the PCHIP Act after police found them working in conditions deemed to be consistent with a “trick pad.” During a show cause hearing, defense counsel issued notice that they would seek application “…impugning the constitutional validity of the Act (for details, see Alberta v. K.B. and M.J. [2000] A.J. No. 876 Prov. Ct.). The constitutional argument was heard on November 15, 1999, where Jordan P.C.J ruled the Act was unconstitutional because of the absence of procedural steps, “…which would allow each and every one of the children to appear before a judge, with the assistance of counsel, to participate in an adversarial process where they can challenge the Director’s [child welfare official] evidence and present their own evidence” (Alberta v. K.B. and M.J. [2000] A.J. No. 876 Prov. Ct at paragraph 57).

In response to the decision in Alberta v. K.B. and M.J., the Alberta government tabled amendments to the PCHIP Act to ensure that “…children’s rights are protected and enable them to receive additional care and support” (Alberta Government Press Release, November 2001). In addition to extending the confinement period from 3 to five days, the amendments empower child welfare authorities to apply for a maximum of “two additional confinement periods of up to 21 days each.” The press release announcing the amendments states: “This additional time will enable social workers to stabilize the child, help break the cycle of abuse and begin the recovery process in a safe and secure environment” (Alberta Government, November 2001).[9]

At the same time that Alberta was developing its policy, a similar process emerged in British Columbia surrounding the use of secure care. In 1998, in response to public concerns about youth at risk of harms, the British Columbia Minister of Children and Families launched a working group to decide whether the provincial government should “develop options for secure treatment of high-risk children and youth” (Secure Care Working Group – SCWG, 1998). The SCWG noted that intervening in the lives of children and youth involves a difficult balance between “positive and negative effects.” Nevertheless, the SCWG believed the state must develop ways to protect children and youth from abuse. Parents and service providers expressed frustration with the inability to intervene in the lives of youth, compounded by a lack of services (e.g. detox services) and education programs. The SCWG advocated a “safe care” strategy that would allow officials to detain youth to make assessments, provide services, and develop plans of care (e.g. harm prevention strategies). The SCWG argued:

Holding children and youth against their will is not a comfortable prospect for anyone. At the same time, however, the harming of children and youth through abuse of alcohol and other drugs and sexual exploitation cannot be tolerated. The working group agrees that the problems of high-risk children and youth need to be addressed (SCWG, 1998: 6).

In response to the SCWG report, the province of British Columbia introduced the Secure Care Act to “…give parents and authorities the power to get help for high-risk children and youth who are unable or unwilling to help themselves.” The Act is not limited to youth prostitution and includes other forms of “self-harm, such as severe drug addiction” (British Columbia press release, June 2000). The B.C. legislation empowers a parent, guardian, or director of secure care to make an application to have a child apprehended into secure care for up to 30 days. The Secure Care Board has the authority to issue a secure care certificate: if the child has an “emotional or behavioural condition” that puts them in harm; the child is “unable or unwilling to take steps to reduce risk;” there are no other “less intrusive” options for addressing the risk; and, consent has been obtained from the Ministry of Children and Families. In emergency cases, authorities will be empowered to “…ensure the safety of a young person by detaining them for up to 72 hours for assessment and arrangement of treatment and support services.”

It is expected that British Columbia’s Secure Care Act will be enacted in fall 2001. In the meantime, other Canadian jurisdictions are also contemplating the introduction of secure care-type legislation (e.g. Ontario and Nova Scotia). For instance, in December 2000, the Ontario government introduced An Act to protect children from sexual exploitation and to amend the Highway Traffic Act, which would empower a police officer or children’s aid society worker to

…apprehend a child under 18 years of age, with or without a warrant, if the police officer or worker has reasonable grounds to believe that the child has been sexually exploited for commercial purposes or is at risk of sexual exploitation for commercial purposes in prostitution, pornography, adult entertainment facilities, massage parlours, escort services, sex lines and other sexual activities carried on for monetary gain.

The Act would permit the confinement of a child for a maximum of 30 days. The Ontario legislation died on the order table, but is expected to be re-introduced during a future session of the Ontario legislature.

2.12 Problems with Secure Care as a Policy Option

While relatively new, there is a paucity of critical commentary in the literature that specifically discusses secure care legislation as a policy option to address youth prostitution. However, given the controversial nature of this legislation, as evidenced in the constitutional challenge, it is expected that commentaries and articles about this legislation are forthcoming.

Critics of secure care legislation raise concerns around the protection of a youth’s legal rights. For example, in Alberta v. K.B. and M.J., Jordan P.C.J. ruled Alberta’s secure care legislation was unconstitutional because it failed to provide adequate procedural protections (e.g., safeguards for a youth to challenge a secure care determination). In its response to the Secure Care Working Group, the British Columbia Civil Liberties Association (BCCLA) pondered whether secure care legislation simply violates a youth’s civil liberties or is a necessary violation to promote the civil liberties and healthy development of children and youth (BCCLA, 1999: 7). In determining a balance between “beneficial versus negative impacts,” the BCCLA argued,

…that the beneficial impacts of secure care clearly outweigh the negatives: the significant chance of creating a better future for children/youth at risk with a sincere and proper effort using appropriate resources by society outweighs the negative impacts of forcing children/youth to forego behaviour that is clearly harmful. After all, we are considering the situation of very young persons who likely do not have the capacity or experience for understanding the short, medium and long-term implications of their choices (1999: 8).

In opposition to the BCCLA position, Alexandra Highcrest, a former prostitute and writer on the sex trade, criticizes the secure care approach for ignoring the broader social and economic conditions that make prostitution a choice for some women and children. In a Globe and Mail commentary (August 14, 2000, A13), Highcrest notes that, when youth run away or are “thrown away” from home, they “…enter a world where they have no influence, few options for assistance, and fewer opportunities, yet their needs and desires are the same as those of adults. For many young people, prostitution holds the key to survival” (Highcrest, 2000). Questioning the wisdom of secure care, Highcrest concludes:

When poverty and desperation drape their cold arms around the shoulders of a 16-year old girl and steer her toward her next trick, how will we respond? Will we simply toss her into lock-up for three days? Canada’s prostitution laws don’t protect anyone from anything. What they do is control where and how the business is conducted. Alberta’s legislation does just that; it drives child prostitutes even further underground, farther away from any real help that they should be able to get elsewhere (Highcrest, 2000.

Researchers have also raised concerns about the implications of the sexual abuse discourse to characterize youth involvement in prostitution (language that underpins the secure care movement). Sullivan (1992) ponders the benefits of law reforms related to the sexual abuse of youth, arguing that we conceptualize our response to child sexual abuse (including prostitution) within a “professional liberal welfare state” model. As a result, the discourse produced by the Badgley Report, and upheld by legislative reform, have paved the way for “the regulation of sexual behaviour in adolescents and families within the context of professionalization of social and family relations, and the social reproduction of families to consume the service commodities produced by a helping professional in the post-industrial economy.”

In her critical analysis of the construction of youth prostitution as a social problem, Brock (1998) reveals how the work of the Badgley Committee helped redefine youth prostitution as child sexual abuse. As Lowman (2001) notes, the Badgley report “…marks a decisive point in the Canadian literature because it helped introduce the idea that although the Canadian age of consent is 14, prostitution involving 14 to 17 year-olds is a form of sexual abuse” (emphasis original). In the process, the Badgley report propelled the demand for the expansion of “criminal law and social services, despite the questionable adequacy of these measures in meeting the needs of young prostitutes” (Brock, 1998). Brock cautions that more legislation to control prostitution only serves to punish people involved in the sex trade. Instead, we must challenge the social conditions that make prostitution a favorable choice for some women and young people.

Bittle (1999) echoes Brock’s point that youth prostitution has been redefined as child sexual abuse. The author conducted 32 qualitative interviews with various criminal justice personnel, social service professionals and government representatives in British Columbia to examine claimsmaking activities associated with section 212(4) of the Criminal Code (legislation prohibiting purchasing, or attempting to purchase, the sexual services of a youth). The findings indicate that reform efforts to encourage the enforcement of section 212(4) were expedited by a rhetorical system that conceptualized youth prostitution as sexual abuse and exploitation. Such a shift reinforces state ownership of youth prostitution as a social problem, which does not include the engagement of youth in the development of policies that directly impact their everyday lives.

Pheterson (1996) argues that social and legal strategies used to intervene in the lives of street involved youth have perpetuated the treatment of this population as “outlaw non-citizens” who are “dispensable, unworthy and lesser beings.” Pheterson warns that protectionist discourses are euphemisms for control: “that control is clothed in language of ‘protection,’ ‘prevention,’ ‘re-habilitation’ and ’re-insertion’ of ‘victims’ but the message is consistently a prohibition of self-determination.”

A similar conceptual policy shift has also occurred in Britain, where youth involved in the sex trade have become identified as victims, and the clients who purchase their sexual services are treated as child abusers (see Barrett, 1998 and O’Neill, 2001). In her feminist socio-cultural analysis of prostitution, Maggie O’Neill questions the wisdom of this shift:

…treating children and young people a ‘victims’ is not necessarily going to engender positive outcomes; and the ‘hard to reach’ young people will still end up in secure environments, in the care of the local authority or in the criminal justice system. Analogous to the literature on domestic violence, treating young people as ‘survivors’ rather than ‘victims’ may be a better approach (2001: 98).

O’Neill contends that our focus should be upon those (men) who purchase the sexual services of young people. At the same time, we need to examine and explore “…the roles and relationships young people have with the ‘adults’ occupying positions of power and authority in their lives as well as the issue of young people’s citizenship rights in contemporary Western society” (O’Neill, 2001: 99).

2.13 Conclusion: Common Themes in Legislative and Policy Attempts to Address Youth Prostitution

An overview of the literature reveals the ongoing attention that the involvement of youth in prostitution-related activities has garnered in Canada. This is evidenced in the 1800s with concerns about the white slavery trade of women and children, and includes more recent concerns within the last 15 years over the sexual victimization and exploitation of youth involved in prostitution. The mid-1980s witnessed unprecedented research and policy attention on youth prostitution. As a result of this process, legislation that pertains directly to youth prostitution was enacted in Canada, and a combination of policy responses was introduced. Most recently, several Canadian jurisdictions have responded to youth prostitution as sexual abuse and exploitation of children (for example, see Recommendations of the Prostitution Policy, Service and Research Committee for the Calgary Community, 1996; Manitoba Child and Youth Secretariat, 1996), and implemented new programs and strategies to protect sexually exploited youth involved in prostitution (British Columbia, 1994, 1996, and 1997). The introduction of secure care in Alberta (and similarly proposed legislation in B.C. and Ontario) represents the most recent attempt to protect youth involved in the sex trade.

Policy attempts to hold men who sexually procure youth accountable for their actions is a corollary of recent efforts to protect youth involved in prostitution. In 1996, the Manitoba Child and Youth Secretariat suggested that convicted procurers of young prostitutes be listed on a child abuse registry, and they introduced legislation permitting the seizure of vehicles used for prostitution-related offences. In addition, various initiatives have been launched to develop techniques to enforce s.212(4) of the Criminal Code and target men who sexually procure youth (for example, see British Columbia, 1996 and 1997). However, the literature questions these policy strategies that aim to hold men who sexually procure youth accountable for their actions, and suggest they have not been realized to the same extent as initiatives to “protect” young prostitutes (e.g. secure care) (see Highcrest, 2000). In this respect, recent policy strategies to address youth involvement in prostitution harkens back to the early 1900s when the claims emphasized the need to protect youth, while the same practice punished youth under the guise of protection. Then, like now, the men who purchased sexual services of youth did so with little fear of running afoul of the law.

[9] Following the introduction of PCHIP Act amendments, a judicial review of Alberta v. K.B. and M.J. (see Director of Child Welfare v. K.B. and M.J. [2000] ABQB) overturned the lower court decision, ruling the objective of protecting children from sexual abuse meets the “proportionality requirement.”

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