DISHONEST PROSTITUTES AND DISHONEST CLIENTS
The first case R v McFarlane (1993) The Times, 27 December, Court of Appeal was an unsuccessful appeal brought by McFarlane, from his conviction at a Crown Court, on a count charging living wholly or in part on the earnings of the prostitution of a woman, contrary to section 30 of the Sexual Offences Act 1956. He was sentenced to four months imprisonment.
Miss Joseph maintained that she was not a "prostitute" but a "clipper", one who offered sexual services for reward and pocketed the reward in advance, never intending to provide the services.
The trial judge in directing the jury had said that there were prostitutes that were honest and prostitutes that were dishonest, and Miss Joseph was a dishonest prostitute.
The issue on the appeal was whether, as a matter of law, the trial judge was correct to rule and direct the jury that a woman who offered herself for sexual services and took the money and failed to provide the services was engaged in prostitution within section 30 of the 1956 Act.
The defence submitted that, to be a prostitute a woman had not only to offer sexual services but had also to provide them or be prepared to do so.
The prosecution submitted that the essence of the offence was the offer of sexual services in return for reward. The words "prostitute" and "prostitution" were not defined in any statute. Their Lordships' attention had been drawn to dictionary definitions and R v De Munck (1918) 1 KB 635); R v Webb (1964) 1 QB 23) and R v Morris-Lowe (1985) 1 WLR 29).
In their Lordships' judgment, both the dictionary definitions and the cases showed that the crucial feature in defining prostitution was the making of an offer of sexual services for reward.
The defence further submitted 1. that the true offence was not living on immoral earnings but that Miss Joseph was not acting by way of prostitution, she was acting dishonestly and could have been proceeded against for obtaining money by false pretences. It might be that McFarlane could have been proceeded against for conspiring with her to do so, or aiding and abetting her. Living on immoral earnings had not been made out.
And 2. that the mischief against which section 30 was aimed was the exploitation of women. Here McFarlane was not exploiting Miss Joseph sexually, only dishonestly. However, if his arguments were right, the mischief at which that and other statutes requiring proof of prostitution would be defeated. If it were a defence that the woman was acting as a clipper and not as a hooker, proof of such offences would be extremely difficult.
It would be necessary to prove not merely an offer of sexual services in a public place but that services were actually provided or, at the time of the offence, were intended to be provided.
The mischief being simply the harassment and nuisance to members of the public on the streets, the distinction between a clipper and a hooker was immaterial.
Their Lordships had no doubt that the ruling of the trial judge was both robust and correct, to adopt a phrase used by the Prosecution
For a man to live on the earnings of a woman who habitually offered sexual services, took the money and then reneged on the offer, if she did, was, in their Lordships' view, to live off the earnings of prostitution, or,as it used to be termed, immoral earnings. Indeed, most people would regard such earnings as doubly immoral
The appeal was dismissed.
The next case that of R v Linekar (1994) The Times, 26 October, QBD concerned an allegation of a dishonest client. The complainant was a woman of 30 who worked occasionally as a prostitute. On evening in question she was working as such in Streatham. The allegation was that appellant approached her and a fee of £25 was negotiated. The Report said they had sexual intercourse on the balcony of a block of flats and then the appellant is alleged to have made off without payment
The complainant knocked at a nearby door. She appeared distressed and nearly naked and complained she had been raped. The police were alerted and the appellant was arrested. He told a number of lies regarding his involvement.
The Crown case, based on the evidence of the complainant, was that she would never have agreed to sexual intercourse unless she was paid in advance and a condom was used. The appellant had done neither but had forced himself upon her despite her struggles.
The appellant's defence was that she was not telling the truth and her complaint was motivated by mercenary reasons. In the course of cross-examination of the complainant a question arose as to whether the complainant's consent to sexual intercourse was vitiated by the appellant's decision not to pay her.
The trial judge ruled that if intercourse was obtained by fraud the complainant could not be said to have been consenting to it. The jury were so directed and requested to indicate the basis upon which they convicted, if they did so.
By a majority of eleven to one the jury found the appellant guilty.
ON APPEAL their Lordships were of the view that the only types of fraud which could vitiate consent in a case of rape were frauds as to the nature of the act itself or as to the identity of the person doing the act, and this did indeed represent the law as it was now was and had probably been for over a century. The Criminal Law Revision Commission had recommended that all other cases of fraud should be dealt with under section 3 of the Sexual Offences Act 1956, the procurement of a woman by false pretences.
Their Lordships considered a number of cases including R v Flattery (1877) 2 QBD 410), R v Williams ([1923] 1 KB 340), R v Barrow (1868) LR 1 CCR 156) and R v Dee (1884) 15 Cox CC 579).
Applying those dicta to the facts of the present case, it was clear that the prostitute had consented to sexual intercourse. If anything, the appellant was guilty of an offence under section 3 of the 1956 Act but that alternative was not put before the jury. The appeal was allowed and the conviction quashed.