Ernest Nimako vs Deborah Adablah: prostitution, morality, and the law

A lawyer in Ghana: “From my reading of the Criminal Code (Act 29 of 1960 as amended) the main offences relating to prostitution are keeping a brothel, living off the earnings, and publicly soliciting. See sections 273- 277. The definition of prostitution is in section 279. So I don’t think illegality works as the ground. I am not surprised that morality is invoked although I would not be inclined to go that route. I have not read the decision and have not paid much attention. But I wonder whether an intention to create legal relations can be found in this sort of arrangement. To have an enforceable contract there must have been an intention to create legal relations. That is where I would be looking in the first instance. I find it odd that anyone should go to court to try to enforce that sort of arrangement.

Lawyer again: The case which I teach in Company law upholds the deregistration of Lindi St Clair (Personal Services) Ltd said: ” It is well settled that a contract which is made upon a sexually immoral consideration or for a sexually immoral purpose is against public policy and is illegal and unenforceable. The fact that it does not involve or may not involve the commission of a criminal offence in no way prevents the contract being illegal, being against public policy and therefore being unenforceable. Here as the documents clearly indicate, the association is for the purpose of carrying on a trade which involves illegal contracts because the purpose is a sexually immoral purpose and as such against public policy.” Ackner L.J in R v. Registrar of Companies, ex p. AG [1991] BCLC 476.” …. This quote sounds rather like our own courts in the Adablah/Nimako case.

Justice John Bosco Nabarese (in Nimako v Adablah): “The law is settled that any agreement which has as its object future illicit sexual relations is bad, as it is a contract to promote sexual immorality. Hence a promise to pay monthly allowance to a mistress, i.e. GH ¢3,000.00 monthly allowance to the respondent in this case, even if made by deed under seal, would be void. So also a contract which though seemingly innocent, has, to the knowledge of the parties, an immoral motive would also be void. …. There is nothing, absolutely nothing glaring on the face of the pleadings that the Respondent has been able to point a single act performed outside the provision of sexual services ….” Parenthesis mine

Justice John Bosco Nabarese (quoting “Christiana Dowuona-Hammond in her 2011 book “The law of contract in Ghana”): “… any contract which directly or indirectly promotes sexual immorality or which ‘contra bonos mores’ is treated by the law on grounds of Public Policy. Such contracts fall under the category of contracts which are contrary to good morals. On this basis, an agreement which directly or indirectly promotes prostitution is unenforceable by the courts on being contrary to Public Policy.”

Justice John Bosco Nabarese established that the agreement between Adablah and Nimako was against public policy because (1) it involved the “sin of fornication and such is illegal in the sense that it is contrary to public policy and it is immoral.”, (2) it was “not … in conformity with social norms.”, and (3) in her pleadings, Deborah Adablah admitted that “she was engaged in this unholy and unhealthy work relationship.”

Atsu: On the face of it, I find it hard to accept the proposition that an agreement that is associated with an activity that is not expressly stated in law as illegal is nonetheless illegal because the activity is immoral. There seems to be an inconsistency. Really?

Adultery is grounds for divorce because it is considered to be immoral. But I think it is grounds for divorce because one party is aggrieved and wants to leave the marriage. There is consistency here because, where adultery is not illegal, an adulterer is not being punished through divorce proceedings. The division of property, custody of children, etc are not allocated in a manner that puts the adulterer at a disadvantage.

Why do we have laws or why are some activities criminal or civil violations? I can think of two reasons: (1) the activity causes physical or material harm or could potentially cause harm, especially to others. Examples are murder, theft, rape, overspending, drunk driving, noise pollution, etc, and/or (2) the activity causes psychological harm. Examples are prostitution, homosexuality, etc. These are partly driven by religious beliefs.

Prostitution falls in both categories in the sense that it is religiously or morally repugnant to many people and some argue that it can lead to the spread of sexually transmitted diseases.

But even if an activity falls in one of the above categories, it may not be legally forbidden if the social harm is not significant and/or any law against the activity cannot be efficiently enforced. Anti-prostitution laws strike a balance among/between the competing objectives or constraints of minimizing social harm (physical or psychological), capacity to enforce, etc. So, for example, prostitution per se is not a crime but soliciting (much like advertising the activity) is a crime. This reminds me of a 2008 paper in the Canadian Journal of Economics. The title is “What you don’t see cannot hurt you: an economic analysis of morality laws.” Here is the abstract:

“This paper provides an ‘efficiency’ explanation for regulation of sex, drugs, and gambling. We propose that these ‘morality laws’ can be explained by considering some activities to impose a negative externality when the activity is observed. Efficiency requires discretion by the individual who engages in such activities. When discretion is difficult to regulate directly, the activities can instead be proscribed, thereby giving individuals incentive to hide their actions from others.”

In effect, the society and the courts are saying that “prostitution is immoral and socially harmful. In an ideal world, we would have made it a crime. But we can’t or we don’t want to. To minimize the social harm of prostitution, it should be a purely private activity with private enforcement mechanisms and we would make it difficult for it to thrive (i.e., pimping, running a brothel, soliciting in public places, etc are crimes). When you bring disputes between prostitutes and their clients to a court of law, you have put prostitution in the public domain. This is inconsistent with the principle that prostitution should be a purely private activity with private enforcement mechanisms, etc.” In my opinion, this explanation opens the black box of why a “prostitution contract” is not enforceable, although prostitution is not illegal.

I suppose that in countries like the Netherlands where sex workers pay income tax (a public policy that explicitly recognizes prostitution as legitimate work), the courts may enforce “prostitution contracts”. In Canada, a sex worker in Nova Scotia successfully sued a client in court for non-payment of services (https://www.cbc.ca/news/canada/nova-scotia/former-sex-worker-small-claims-court-national-precedent-1.6896597).

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Appendix

Excerpts from:

Curry, P. and S, Mongrain (2008), “What You Don’t See Can’t Hurt You: An Economic Analysis of Morality Laws,” Canadian Journal of Economics 41, 583–594.

“Can there be such a thing as a victimless crime? For the majority of crimes, the activity is proscribed because of the negative externality imposed on others. However, when an individual sells drugs or sexual favors to another, where is the victim? Where are the externalities? Some arguments have been made that, while such acts may not create externalities in and of themselves, they lead to other acts that do. For example, drug use may increase one’s proclivity towards crime. This type of argument however, has been challenged. Our paper proposes a different explanation. While such acts may not affect others physically, an observer of the act may suffer a loss of utility because it conflicts with her moral views. We use the term ‘psychic externality’ to refer to a situation in which the harm caused by an activity is due to the observer’s distaste for the act. It is worth mentioning that laws governing drug and alcohol use, sexual activity, and gambling are often referred to as ‘morality laws.’ This paper proposes that these laws are in place to safeguard the morals of agents who do not choose to take part in the proscribed acts.

…. If hiding is efficient (i.e., hiding is not prohibitively costly), … then there should exist a body of legislation that makes only the public aspect of an activity illegal. Indeed, there exist many such laws. Alcohol is legal in all western countries, but is subject to many restrictions. While these restrictions vary somewhat from country to country, they all entail keeping consumption of alcohol to specific areas and preventing public drunkenness. In addition, in Canada and much of western Europe, prostitution is legal, but solicitation is not. In other words, it is legal to exchange money for sexual favours, it is just not legal to discuss it in public. Finally, brothels, or ‘bawdy houses,’ are illegal in Canada, Italy, Luxembourg, the UK, and parts of Spain. Where they are not illegal, brothels are often relegated to ‘red-light districts,’ as in the Netherlands, Germany, and Belgium. As such, anyone wishing to engage in prostitution must do so discreetly.” Parenthesis mine

See also:
Rasmusen, E. (1997) ‘Of sex, drugs and rock’n roll: law and economics and social regulation,’ Harvard Journal of Law and Public Policy 21, 71–81.