Regulation of Prostitution (Historical)

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Regulation of Prostitution (Historical)

• Week 6

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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

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(2) Concept of power

• Foucaults 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.

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(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.

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(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 cant 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.

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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

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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.

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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.

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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.

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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.

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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.
• Womens civil rights depend on their sexual
  propriety, but not mens.

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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.

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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?

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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)

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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.

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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.

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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.

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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.

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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.

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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 womens 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.

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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.

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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.

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• 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 states, 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?

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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 womens 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.

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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.