Sara Crangle
Special to The Globe and Mail

You touch mine, I'll touch yours

In the battle to outwit each other, prostitutes and undercover police officers are engaging in a sexual theatre of the absurd

HALIFAX — On a summer morning at 7:40 a.m., a 17-year-old girl is standing at the corner of Cunard and Maynard Streets in Halifax, waiting. A vehicle approaches, and she waves at the lone male driver. The car slows down and she climbs in.

"Are you a cop?" she asks the man.

"No."

"Can you prove it?" she asks, unbuttoning her pants. "Touch me here."

The man does so, but the girl is not convinced.

"Go further," she urges. He hesitates.

"Okay," she says. "What do you want?"

They haggle over price. She tells him she has a place they could go. They drive around the block. On Agricola Street, a car pulls up behind them. The vehicle, or the people in it, are familiar to the girl. She turns to the man beside her.

"Are you a cop?" she asks again. "Because the guy behind us is."

"Yes," he replies. The girl grabs the door handle and tries to get out of the car. The officer, Sergeant Tim Moser, head of the Halifax Regional Municipality Vice Squad, physically restrains her and places her under arrest.

In court a few days after the arrest in July, 1998, the girl, known only as N.M.P., and Sgt. Moser agreed on every detail of their interaction.

Her lawyer, Roger Burrill, asked for a stay in court proceedings on the basis of the officer's conduct, which he considered questionable. His request was denied. The girl was charged under Section 213 of the federal Criminal Code, which makes it a statutory offence to communicate in public for the purpose of engaging in prostitution.

N.M.P.'s case, which will be appealed this month, is the first of its kind in Nova Scotia. Never before has a woman working as a prostitute claimed in a Nova Scotian court that she was improperly touched by a police officer during the process of an investigation. From all accounts, this is not because it has never happened. The Stepping Stone Association, a drop-in centre for prostitutes, is located in a small blue-grey row house on Maitland Street, a back alley. This is Halifax at its roughest. It's an area where prostitutes work without pimps, are more likely to be drug-addicted, and make less money than women who work more upscale parts of town.

Two staff members, Joanne and Kay — themselves ex-prostitutes — are blunt about police procedure, and about the ways prostitutes attempt to evade arrest.

Women frequently ask their clients to expose their genitals to prove they are not police officers, and undercover police are often happy to comply, the women say. Police have been known to ask women to do the same. Furthermore, they say, some officers initiate sexual touch before making an arrest.

This physical back-and-forth — a kind of sexual guessing game — is a relatively new aspect of police investigation.

Joanne recalls: "Years ago, if you asked [undercover police officers] if they were cops, they'd say, 'Yeah, we are,' and then arrest you. There was none of this touchy-feely stuff. I got busted three or four times. I was so wired on drugs I didn't care who they were. They'd just say: 'Yes, I'm a cop, and you're under arrest.'"

"You know it's illegal to buy sex," says Kay, who met Joanne in drug treatment. "You try to get around it in your words." Kay adds that cops nowadays pose as passengers in cabs, and wear elaborate disguises so they won't be recognized by the women on the street. The two women erupt into laughter as they describe the fake beards and glasses worn by undercover officers.

"People engaged in street prostitution have to have some way of screening potential clients in a very small period of time," says Janet Stevenson, a board member at Stepping Stone. "Our program users have to make decisions very quickly."

Screening clients includes attempts to identify cops. Safety includes not getting arrested.

But does it also include a fear of the investigative process?

"We don't entrap anyone," says Constable Frank Bowes, media-relations officer at the Halifax Regional Police. "Usually those type of words are brought up by lawyers. Our job is to obtain proper evidence. Whether someone defines it as entrapment is up to them.

"As far as the policing [of prostitution] goes, there has to be an element of verbal exchange for money before an arrest can be made."

He says the police have some leeway to act illegally in order to investigate other crimes, including high-speed chases and undercover drug purchases.

But exactly just how far the police are able to go to pursue consensual criminal activity is difficult to determine. Police policy that guides the undercover work such as the "prostitution sweep" in which N.M.P. was arrested is not available to the public.

In the vice unit, which deals with prostitution in Halifax, male police officers dress up as johns; female officers dress up as prostitutes.

"There are definitely more females arrested than johns," says Constable Bowes. This, he says, is a result of logistics: "There are more male officers available for these kinds of prostitution sweeps."

The same officers can be used over and over again. "It's unbelievable," says Constable Bowes. "People forget faces very quickly. Some men come to the female officers more than once. They're so anxious for sex they don't pay attention to the face. We sometimes have two or three vehicles lined up. You wouldn't believe the stories."

The investigation of prostitution is currently a major priority for the Halifax Regional Police. Between January and June of 1999, 109 people in the city were charged with communicating for the purposes of prostitution, a 22 per cent increase from the previous year.

Constable Bowes will not be drawn out on whether the police have changed their strategy on controlling prostitution. But he concedes that strategy changes in response to court demands for evidence and changes in criminal behaviour.

"Prostitutes are pretty street-savvy," he points out. "But if circumstances do not occur [that facilitate arrest], the police officer excuses himself, trying not to reveal his identity. He'll say something like he's not interested in the girl, and leave.

"Police officers are always trying to outwit prostitutes. It's kind of a game."

The phrase "outwitting prostitutes" to describe arrests under Section 213 is a popular one.

Judge Castor Williams, who sentenced N.M.P., also used it in his ruling in order to congratulate Sgt. Moser on a job well done. He stated: "On the rules that [N.M.P.] set, the officer simply outwitted her."

Judge Williams went on: "The duty of the police is to detect and to deter criminal activity. In doing so, they must act according to the law and any deviance from the legally established norm is not a valid public policy unless sanctioned by Parliament. Here, the touching was consensual. … Therefore, the touching was legal."

Crown attorney Mark Scott says if Sgt. Moser had refused to touch N.M.P., he would have identified himself as a police officer, jeopardizing future investigations. Prostitutes would then be able to use criteria such as touch as a sure-fire means of identifying police and avoiding arrest.

Mr. Scott argues that Sgt. Moser's touching of N.M.P.'s pubic area was acceptable. "Even if it was illegal," he says, "it was at her insistence. It was tolerable."

Mr. Burrill disagrees. He says Sgt. Moser's actions were illegal, and that the police should only resort to illegal behaviour in extreme circumstances. In his opinion, public communication for the purposes of prostitution is a minor offence, akin to a parking ticket, and doesn't warrant this degree of police response.

The key issue is how far the public wants the police to go in their pursuit of what amounts to a nuisance crime.

Mr. Burrill works for Nova Scotia's Legal Aid Commission, and has represented many prostitutes. "Police officers regularly touch prostitutes sexually," he says. "I hear that all the time."

He is not the only lawyer to say so. Anne Derrick, one of Stepping Stone's founding members, is an expert in prostitution law reform. Like Mr. Burrill, she is familiar with stories of police impropriety in the course of prostitution investigations. She has heard, from a variety of sources, about one incident in which an officer received oral sex from a prostitute before conducting an arrest. Ms. Derrick disagrees with Judge Williams.

"A lot of people feel antipathy toward women in the sex trade," she says. "People ask me 'Doesn't she agree to be touched all the time?' The answer is 'Yes, when people are paying her.' N.M.P. did not consent to be sexually touched by a police officer. The consent was obtained fraudulently."

She adds that the leeway offered police in the investigation of criminal activity such as drug-dealing does not apply to prostitution. "Police buy drugs from people and people get convicted on the basis of that evidence," she says. "It is a [legitimate] comparison, but here we are talking about a breach of bodily integrity. We're talking about security of person and the equality rights of [women]."

According to Ms. Derrick, women charged with under Section 213 are unlikely to pursue their rights in court, even if they are sexually touched by police officers. "I think it's plain that there's no documentation of this," she says, adding that most women just want to pay their fines or serve their time and avoid the publicity that would ensue from accusing an officer of improper conduct.

"Her character would no doubt be taken into account," says Ms. Derrick. "It might be crudely cast as the word of a prostitute against the word of a police officer."

Dr. John Lowman, a criminologist at Vancouver's Simon Fraser University, thinks N.M.P.'s case is "a wonderful example of the utter hypocrisy of our prostitution laws. It's like police officers getting freebies.

"The judge is complimenting the officer for his sexual abuse of a woman. It's a crime. It's sexual assault. This is outrageous."

Dr. Lowman, who has conducted a nationwide report on police investigation and has made recommendations to the federal government that prostitution be decriminalized, points out that the problem lies with the law itself. "Prostitution is legal in Canada. Communication [for the purposes of engaging in prostitution] is illegal only if it occurs in a public place, or a place open to public view. If you stand in your living room with the curtains open and proposition someone for paid sex, it's a crime; close the curtains, and it's not. Out of sight, out of mind.

"Until legislation makes it clear where the legal act of prostitution can take place, it loses its moral authority to enforce the public nuisance law [Section 213]," says Dr. Lowman. "Prostitutes in Nova Scotia will likely be exposed to greater abuse of police power if this ruling stands."

But, Mr. Scott says: "Parliament has determined that it is a crime and the public have supported this, so. … There is no other way of monitoring it. The police cannot sit in their offices and wait for penitent drug dealers and prostitutes to come to them."

But why has it taken a 17-year-old girl finally to take the issue to court?

"All I can say is that [N.M.P. is] a young person from a broken home who has addiction problems," says her lawyer, Mr. Burrill. "She's had a lot of services provided to her."

N.M.P., who has no fixed address, could not be contacted for an interview.