Regulation of Prostitution (Historical)

1. Regulation of Prostitution (Historical) Week 6

2. Foucauldian influence on analysing the history of regulation of prostitution (1) Importance of discourse in constructing prostitution as an issue. Discourses include • legal discourses, i.e. how law seeks to regulate assumes and reproduces certain assumptions about what kind of problem prostitution is (e.g. Walkowitz, Wood, Mort) • medical discourses (Spongberg) • social reform discourses

3. (2) Concept of power • Foucault’s concept of power sees it as having negative and positive effects, and law also. So law can put ways of thinking into place. (C. Smart (1989) Feminism and the Power of Law) • ‘Negative’ punitive laws can also have ‘positive’ effects, i.e. productive effects.

4. (3) Body as a site of regulation • ‘Prostitute body’ constructed through its identification in discourse and through the regulation of it. (Wolkowitz 2006, Bodies at Work, Chap. 6, historical section pp.121-4) • ‘Docile body’- tractable body, product of disciplining the ‘unruly’ body.(C. Smart, ed. (1992) Regulating Womanhood, especially Introduction.

5. (4) Invisibility of gender in Foucault • But remember that the gendering of bodies and discourse only occasionally acknowledged by Foucault. Feminist histories of prostitution, like Walkowitz or Nead, or commentary by Smart, recognise that can’t understand the way the law seeks to regulate prostitution without considering how male and female sexuality and male and female bodies are differently constructed. So have to appropriate Foucault for a feminist analysis rather than simply follow his thought.

6. Brief history of regulation in the nineteenth century • Prostitution had always been target of opprobrium by Church and law. But in the nineteenth century law sought to control it in a more thorough, systematic way. • 1824 Vagrancy Act • Contagious Diseases Acts (1864, 1866, 1869) • Cantonment Act 1864 • Indian Contagious Diseases Act 1868 • Criminal Law (Amendment) Act 1885

7. Vagrancy Act 1824 • ‘. . . prostitutes and beggars shall be deemed idle and disorderly persons and may be imprisoned for one month with hard labour’. • ‘. . . every common prostitute wandering in the public streets . . . and behaving in a riotous or indecent manner. . . shall be deemed an idle and disorderly person.’ (from Nead, Myths of Sexuality p. 115) • The crime here is being idle, being a nuisance, prostitution is not being seen as specifically a sexual crime or issue.

8. Criminal Law (Amendment) Act 1885 • Tries to end ‘white slavery’ by raising age of consent for girls to 16 • Closes brothels, gin palaces and dance halls where working class prostitutes work. It therefore affects very differently streetwalkers and other visible prostitutes and higher class prostitutes who could afford some protection from public scrutiny and punishment • Other minor legislation in this period drives further wedge between respectable families and prostitutes (e.g. landlords not allowed to rent homes to prostitutes, children of prostitutes can be withdrawn from family home and sent to industrial schools, etc.

9. Contagious Diseases Acts (1864, 1866, 1869) • Succession of CD Acts modify and widen scope of first. Acts intended to protect the armed forces against sexually transmitted diseases, venereal diseases. The Acts enabled women, defined as prostitutes by the police, to be subject to an internal examination by a police doctor, to check for VD, and held in a lock hospital until ‘cured’. Once released had to register and be checked periodically. • Men not examined nor forced into treatment. • At first covers only garrison towns and ports, it was the threat to widen to all towns and cities which sparked the repeal movement. Draconian measures threaten civil rights of working class women all over England and Wales, as identification as a common prostitute by police the only evidence required.

10. Consequences of the Acts, according to Walkowitz 1980 • ‘Negative’ effects- punitive treatment of women (examinations and incarceration). • ‘Positive’ effects- creation of ‘prostitute’ as a social category, distinct from working-class women generally. • (1) registration meant that women became know to their communities as prostitutes. This ended informal, part-time prostitution, when women slipped in and out of work depending on their situation, e.g. when unemployed. Henceforth they became trapped in a criminal career and subjected to close surveillance. • (2) registration locks women into a social identity which was now clearly differentiated from ‘respectable’ women • (3)registration and definition as common prostitute legitimates subhuman treatment • (4) law also provides an excuse to put more police on the streets in working class areas, so increases the surveillance of the whole neighbourhood.

11. Constructions and values embedded in and circulated by Acts Law rests on and reproduces gendered constructs. Penalizes and stigmatises women whose autonomous sexuality was seen as corrupting, and which challenged the norms of bourgeois female sexuality Women are the source of venereal disease, they spread it to men (the reverse rendered invisible). Their moral corruption is mirrored by (shown by) their diseased state. Unnatural because autonomous in displaying an independent sexuality, not ‘passionless’. Moreover, sexual impropriety shows in the body, police imagined to be able to recognise a common prostitute on sight. Men are acting naturally (seeking sexual outlets), and even if ideally men should be able to control themselves the ordinary working class soldier or sailor not expected to be able to. Cannot subject men fighting for their country to genital examination. Women’s civil rights depend on their sexual propriety, but not men’s.

12. Other legislation regulates prostitution in the Empire. Studies in respect to India (Levine, Burton) • Cantonment Act 1864 Regulates sex trade within military stations in India as part of the regulation of commercial activities in military towns. (A cantonment is a military camp or military station where troops are barracked.) • Indian Contagious Diseases Act 1868 Makes provision for the supervision, registration and inspection of prostitute women in major Indian cities and seaports.

13. Acts covering India also rest on constructions of (racialised Indian) female sexuality • Construction of prostitutes and the prostitute body in India parallels Britain, except that 'race' difference deepens the perceived threat (Levine). Reading between the lines: disease becomes a metaphor for contamination by savagery and primitiveness. • E.g. in India, as compared to Britain • law applies more widely (hidden threat) • women must be registered before men can visit (implies they are already diseased?) • disease seen as more corrupting and contagious (disease and prostitutes seen as 'foreign' in nature, infecting British men with disease akin to leprosy). • Acts lack 'rhetoric of redemption and moralism' (Levine) that accompanied passage of the Acts in Britain. 'Foreign' prostitutes beyond reform?

14. Other discursive inputs • Medical discourse- already evident in role of doctors in assigning women (and absolving men from) responsibility for spread of disease, inspecting women (Spongberg, Bell, Mort)

15. Social reform discourses • Emergence of reform discourses with which I am concerned was the repeal movement led by Josephine Butler seeking abolition of the CD Acts on the grounds that they (1) the state was sanctioning (supporting) prostitution; (2) that women were being sacrificed to male lusts: (3) that medical examinations subjected women to immodest practices. • Once Parliament had first suspended and then repealed the acts the campaigners went on to press for repeal of acts governing prostitution in India. • Variety in opinion among repealers, for instance Butler stressed economic reasons why women turned to prostitution.

16. Social reform discourses • Social reformers seek to (Bartley, Mahood) --Rescue and rehabilitate fallen women --Prevent women from entering prostitution (Bartley, Mahood, Walkowitz) All directed at ending prostitution not regulating/ controlling it as a necessary evil.

17. Social reform discourses • All inflected with class perspective, as middle class women attempt to control/ discipline working class women. ‘Rescue homes’ punitive environment designed to discipline women, to get them to give up desire for flighty life style, decorative dress, etc. • Usually fail to recognise economic rationale for joining trade in favour of emphasis on seduction by men. When do, emphasise training for domestic service (ironically the occupation most often listed by girls becoming prostitutes). • Some reformers more concerned with fate of middle class wives and children infected by diseased husband father than fate of prostitutes.

18. Since 1885-- • After repeal of CD Acts prostitution regulated mainly through local ordinances, some of them going back to early nineteenth century, although special measures passed in wartime to protect soldiers and sailors from disease and women seeking to profit.

19. Sexual Offences Act 1959 • No major change until 1950s. Sexual Offences Act 1959 to govern offences related to prostitution till this day, although policies starting to change. • Main problem perceived as the visibility of prostitution, so inflicts very heavy penalties on street prostitutes. Not concerned with ‘indoor prostitution’.

20. Context of 1950s moral panic about prostitution • Postwar interest in re-establishing family unit after wartime disruptions and rash of postwar divorces. • Sexological writing become more extensively available to the wider public; women’s sexuality and sexual responsiveness in particular were scrutinized and defined in popularized medical texts. Books devoted to improving sex within marriage. Sexual relationship between husband and wife strengthens and is necessary to a good marriage. So prostitution now seen to harm marriage. • Worries about immigration • Economic prosperity means there is imagined to be no economic excuse for prostitution, so penalties justified.

21. In these context visible prostitution was seen as very threatening to marriage and British way of life. May have been less prostitution, but found more offensive. • Prostitutes were observed on London streets and parks, Billy Graham commented on it on a visit to London. Prostitutes were seen to threaten marriage, and constructed as pathological, psychologically flawed`; `Both the prostitute and the homosexual are symptoms of a malaise in sexual relationships. The natural unit of society is the family and the sex instinct is a means to an end, not an end in itself. Indeed, girls themselves would not become prostitutes unless their emotional natures were warped and unstable to begin with.’ (Eustace Chesser) • There was a racial element to this moral panic. Prostitution became associated with immigration, particularly with West Indian and Maltese men who were thought to be pimps corrupting British girls and the British way of life. • Police aiming to increase their power contributed to the demand for harsher laws on prostitution.

22. Government appoints the Wolfenden Committee to consider law on prostitution and homosexuality • Its deliberations result in the Street Offenses Act 1959 aiming to sweep prostitutes off the street through draconian measures which worsens the position of women working as prostitutes. Enforcing much harsher penalties for soliciting, and loitering with the intent to solicit, including fines and imprisonment. Imprisonment for soliciting only removed in 1982, but could still be imprisoned for non-payment of fines. Implication is that women cause the problem of prostitution. • Women can obtain a criminal record as a common prostitute which is known by magistrate and police when they come to court for any offence. • These harsh penalties continue all through the liberal climate of the 60s and onward. • Also harsh penalties for living off immoral earnings.

23. Wolfenden formulates rationale for punishing prostitutes based on two principles • That prostitutes have put themselves outside society and are therefore not entitled to the same legal rights as other people. • Develops ‘liberal’ rationale for punishing prostitutes based on distinction between public and private spheres: What people do in private is their own affair and not the state’s, but the state can and should intervene if sexual behavior enters the public sphere/ causes a nuisance. (Wolfenden strategy) • This principle guided legislation on sexuality until recently. Should it be retained as a good basis for law or done away with, in favour of a notion of morality that crosses this (artificial?) division?

24. Conclusions • Construction of ‘prostitute’ as an identity category, not an ordinary woman earning money. • Continuing emphasis on (woman) prostitute as the problem, causes prostitution by making herself available. • Pathologises prostitute, seen as physically diseased/ spreads disease/’feeble-minded’/ psychologically flawed. • Harsh penalties and lack of civil rights compared to other citizens based on women’s sexual behavior/ lack of sexual rectitude. • This affects all women, not just ‘prostitutes’- implies that women need to remain respectable or lose social respect and legal rights. • Women working as prostitutes subject to social exclusion and stigma that follows them through life.

25. Additional reading • Howell, P. (2000) ‘Prostitution and racialised sexuality: the regulation of prostitution in Britain and the British Empire before the Contagious Diseases Acts’ Environment and Planning D: Society and Space 18, 321-339.