If you have been charged with a prostitution offence, then you will need to understand about the following information:
your charge sheet;
the elements of the prostitution offence;
whether or not you have committed the offence; and
both the maximum and likely penalty that may be imposed if you are found guilty of the offence.
This information will also help you to decide whether or not you require professional legal representation and, if you do engage a lawyer, this information will assist you to understand the process and steps taken on your behalf.
Addressing a prostitution charge necessarily requires you to:
carefully read the charge sheet(s), and obtain full particulars of the charge(s) against you;
gather (even if this is just personally recalling) evidence of all of the facts and circumstances surrounding your charge;
gather documentary details which illustrate your good character and support a reasonable explanation as to why the offence did or did not occur;
collate the materials and applicable law;
present the evidence to the court in a manner which reflects favourably upon you, regardless of whether you are defending a charge or you are simply endeavouring to present yourself in the most favourable light on a plea of guilty.
THE SEX INDUSTRY AND THE LAW
In general terms, employment within the sex industry can be divided into the following categories:
prostitutes working alone (this will remain legal under the new law);
prostitutes working legally within licensed brothels;
licensees and approved managers of licensed brothels;
reception and support workers within licensed brothels;
prostitutes illegally engaged in street sex work (most commonly,solicitation);
prostitutes, reception and support workers working illegally within prohibited brothels; and
persons working within businesses providing explicit adult entertainment.
Queensland, as of 1st July 2000, has new laws governing prostitution, which laws are primarily located within the Prostitution Act 1999 (Qld) ('the Act').Essentially, the Act creates a licensing scheme which legalises prostitution provided through licensed brothels.
Provided that a person is over 18 years of age, he or she may legally provide prostitution as a 'lone prostitute' (that is, working alone from private premises or servicing clients at their homes), or as an employee of a licensed brothel. It is important to know that many of the prostitution offences contained within Chapter 22A of the Criminal Code have been amended by way of the creation of exceptions, to offences, for licensed brothels.
The Act imposes very stringent licensing, planning, operational and accounting requirements in respect of licensed brothels. The Act also alters a number of the existing prostitution offences. For example, increased penalties apply to street prostitution and the operation of massage parlours and prohibited (unlicensed) brothels. Also, certain health rules require that prostitutes employed in licensed brothels undergo regular medical examinations in respect of sexually transmissible diseases, while also ensuring the use of condoms.
Licensed brothels may contain a maximum of 5 'working rooms' only. There is a limit of one prostitute per room, and only ten staff in total may be on the premises at any one time. Either the brothel licensee and/or manager must be personally present at all times while the brothel is open for business.Furthermore, there is a total prohibition upon the on-site consumption, sale or storage of liquor.
Brothel licensing is to be overseen by a Prostitution Licensing Authority.The Authority will comprise community members, a doctor, a law enforcement officer, a legal advisor, and representatives of local government. A Prostitution Advisory Council will also be established to advise government on the progress and reform of prostitution policy, together with a special prostitution task force in the Queensland Police Service.
Parliament intends that the new law and Authority should operate to:
protect the value, harmony and character of local communities in which brothels operate;
improve the personal safety of persons involved in the sex industry;
minimise the health risks associated with prostitution;
prevent corruption and organised crime; and
enhance business transparency in prostitution enterprises.
In striving for these objectives, the Act imposes onerous operational and health and safety obligations on brothel licensees, managers and employed prostitutes. Many of the operational offences under the Act confer joint and several liability upon the brothel licensee and manager. The legislation also implements new police powers which provide for entry and inspection of brothels at any time, and without the need for a search warrant.
It is vital that all persons working within the sex industry are aware of the new rules. Brothel licensees and employed prostitutes should realise that persons working within licensed brothels are now legal employees and are owed all the same rights and privileges as those employed in other industries. In other words, brothel proprietors must provide the minimum employment conditions set out in industrial legislation, in particular the benefits associated with workers' compensation, superannuation and occupational health and safety schemes.
PROSTITUTION OFFENCES: CRIMINAL CODE
A number of amendments have been made to the prostitution offences contained within Chapter 22A of the Criminal Code. The definition of 'prostitution'now covers any commercial arrangement entered into for the provision of:
any other activity which involves the use of one person by another for sexual satisfaction involving physical contact.
Importantly, prostitution occurs regardless of whether the person who initiated the arrangement, or received the reward, was involved in the act.
Publicly soliciting (that is, offering to provide or accept) prostitution remains a criminal offence. The term 'publicly' infers that the solicitation occurs in a public place, in view or earshot of a person in a public place, or while loitering in or around a public place. The offence applies equally to males and females, prostitutes and their clients, and persons acting for prostitutes and/or their clients.
The maximum penalty for a first offence is $1,125.00. The maximum penalty for a second offence rises to $1,875.00, while a third or subsequent offence involves a penalty of $2,250.00 or 6 months imprisonment.
It is, of course, legal to solicit prostitution in a licensed brothel,provided the soliciting cannot be viewed by a person outside the brothel.
Knowingly enticing or recruiting people to engage in prostitution (that is,procuring prostitution) remains a criminal offence.
However, a brothel licensee or approved manager will not commit the offence by merely employing an adult to work as a prostitute. If, on the other hand, any person (including the licensee or manager of a licensed brothel) procures a person to leave their usual place of residence for the purpose of engaging in prostitution, they will breach the criminal law.
The maximum penalty for this offence is 7 years imprisonment. Knowingly enticing or recruiting a minor or intellectually impaired person to function as a prostitute carries a maximum penalty of 14 years imprisonment.
It is now legal to knowingly participate in the provision of prostitution by another, provided that the prostitution occurs at a licensed brothel, in accordance with the licence. A person knowingly participates in prostitution if they provide financial or other resources; receive a benefit; provide transport;take telephone calls, bookings and/or money; or contribute to any service,action or matter in connection with prostitution.
It remains illegal to knowingly participate in the provision of prostitution at any place besides a licensed brothel. A first, second and third offence of this nature carry a maximum penalty of 3, 5 and 7 years imprisonment respectively. Importantly, a duly qualified bodyguard protecting a prostitute who is operating legally, is excepted from the offence under the new Act.
Clients and Persons with a Commercial Interest
It is not a crime to be found in or leaving, nor to have an interest in,premises used as a licensed brothel. It is, however, an offence to have an interest in, or be found in or leaving, an unlicensed or prohibited brothel.Prohibited brothels are premises declared by the Authority as being unlicensed,or operated contrary to the Integrated Planning Act.
The maximum penalty for a first, second and third offence under the Criminal Code is 3, 5 and 7 years imprisonment respectively. The court may reduce the sentence of an offender who is a prostitute or client, if satisfied that the offender has undergone a sexual health check within 3 months prior to the offence. Alternatively, an offender may be charged under an identical provision in the Prostitution Act, which carries a penalty of $4,500.00 or 1 year's imprisonment.
Minors and Intellectually Impaired Persons
It is a serious offence to have an interest in, or be present at, premises used for prostitution, including a licensed brothel, while having knowledge that a minor or intellectually impaired person is also at that place.
The maximum penalty for this offence is 14 years imprisonment. Moreover, any person who knowingly causes or permits a minor or intellectually impaired person to be at a place used for prostitution by 2 or more prostitutes, including a licensed brothel, commits a crime punishable by 14 years imprisonment.
A person may avoid that charge if he or she has a reasonable excuse for being present at a brothel where there is a minor or intellectually impaired person.The phrase 'reasonable excuse' relates to the degree of involvement in the purpose of the prostitution. In the event that a person's reason for being at the place was unrelated to prostitution, that person will have a reasonable excuse for being there.
A person may also lessen the adverse consequences of an unlawful presence offence by applying to the court for a certificate of discharge and/or suppression order. A certificate protects a person from prosecution for the unlawful presence offence. A suppression order, on the other hand, prohibits the publication of a person's identifying particulars. The court will only grant a person the benefit of a certificate and/or suppression order if satisfied that he or she has made honest and frank disclosure about everything they know was happening at the time.
If premises declared a prohibited brothel are subsequently used as a brothel,the occupier and owner each commit an offence punishable by a maximum penalty of$15,000.00 or 3 years imprisonment.
A police officer is entitled to require the name, address and age of any person who is found committing, or is reasonably suspected to have committed, a prostitution offence. If the officer believes that the name, address or age given by a person is false, the officer may require evidence of its correctness.It is an offence for a person to fail to give particulars without reasonable excuse, or to give false particulars in response to a police request. The maximum penalty for such an offence is arrest and/or a $375.00 fine.
This Information Outline is available courtesy of AussieLegal's online legal information and law firm referral service.
If you want further information, we recommend contacting the law firm of Ryan& Bosscher Lawyers who specialize in this area of law. They are located at 3rd floor, Bank of NSW Chambers, 33 Queen Street, Brisbane 4000,or call them on (07) 3229 3166.
Ryan and Bosscher, Lawyers, is a specialist Criminal Law firm committed to providing quality service to clients. There are very few firms practising exclusively in the area of Criminal Defence, and with a reputation of hard headedness, dogged determination and fearlessness, Ryan and Bosscher has become the premier Criminal Defence firm in Queensland, committed to Justice and the protection of an individual's rights. Our specialisation ensures provision of the highest standard of representation to any person charged with a criminal offence. Our familiarity with Criminal Law also ensures that Counsel briefed for complex advocacy matters are also highly qualified in the Criminal Defence field.