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Chapter Three: Political and Legal Discourses of Prostitution
“The attitude of English law to prostitution may be summed up briefly. English law takes no cognizance of prostitution as such. It punishes only certain offences associated with prostitution. The severest penalties are attached to procuration or rape (particularly of the young or incapable) and to all forms of exploitation for immoral purposes. Prostitution itself, as between prostitutes and customers, is punished only if the process of obtaining custom is supposed to be likely to offend members of the public. Law respecting this class of offence have remained unaltered for many years.” [G.M. Hall, ‘Prostitution and Sex Promiscuity in Several Countries at the Present Time’, unpublished M.A. thesis, University of Liverpool, 1932, p.172]
(3:0) Regulation 40d: A Sign of things to come?
On the 22nd March 1918, the government implemented regulation 40d under the Defence of the Realm Act (DORA). With unnerving echoes of the provisions which had made the C.D. Acts so controversial in the nineteenth century, this war-time measure – which crucially did not require the assent of parliament - sanctioned the following:
“That any woman who has sexual intercourse with a soldier or a sailor can be arrested. Any woman who solicits or speaks to, for this purpose, a soldier or a sailor can be arrested. She can then be taken to a police-station and may then be remanded for a week in order that she may be examined either by her own doctor or the prison doctor to see whether she has venereal disease” (HoC Debates, vol.107, 19 June 1918, col.445).
Just three years previously, in April 1915, a similar legislative measure had been enacted in regulation 13a of DORA, whereby women known to have been previously convicted of prostitution offences could be “expelled from any camp or training centre or any other place where any bodies of soldiers are to be found” (ibid: col. 447). In the same year, the Clubs (Temporary Provisions) Act, “prohibited the use of Club premises for the habitual resort of prostitutes,” and made specific reference to “members of the army and navy” (Hall 1932: 169). Unlike 40d, 13a and the Clubs Act were levelled specifically against the prostitute, and were guided by the notion that restricting
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women’s access to His Majesty’s troops could prevent the spread of venereal disease. By contrast, 40d, potentially referred to all women, and as one parliamentary objector observed, was a reactionary provision which ultimately “allowed the opportunities for temptation” and then “tried to get rid of those who are diseased” after the point in which disease could have potentially been contracted ( H of C Debates, vol. 107, 19 June 1918, col. 447). As Smart has argued in relation to the Australian regulation of venereal disease, during the war, there “was a heightened emphasis on state power and subordination of the individual, on bureaucracy and surveillance – a symbolic deployment of discipline and force at home that paralleled their actual deployment on the battlefield” (Smart 1998: 10). Whilst these provisions all marked instances in which the state attempted to capitalise on the pretext of the ‘war effort’ in order to play an increasingly interventionist role in the control of both the medical and moral sexual health of individuals, for many 40d symbolised a potential submission of liberty too far. Given that the British experience of regulating venereal disease on the front lines, as Beardsley points out, demonstrated very little in the way of discipline and force until the latter months of the war, perhaps it is hardly surprising that deploying regulation on the homefront proved to be so problematic (Beardsley 1976: 189-202). In France, prior to the 18th March 1918, British troops had been allowed to “patronize the regulated brothels, or maisons tolerees, which the French maintained for their troops,” with the view that sexual contact within a controlled environment was essential to sustaining morale (ibid: 190). Just as this measure to prohibit the troops’ access to licensed brothels was met with anger on the front, when 40d came into motion back in Britain just four days later, as anticipated, it caused severe agitation.
In 1916, the report from the Royal Commission on Venereal Disease set about dampening murmurs which had been circulating – particularly within military circles – that the only way to deal with the current problem was to reinstate the C.D. Acts. Although the Commission argued that syphilis was a much more prolific problem than originally thought - with estimations that no less than “10 per cent. of the whole population in the large cities” were infected - from a health point of view, they suggested, “the C.D. Acts were a complete failure” (see, Garrett Fawcett 1917: 155-159). Similarly, the suffragist Millicent Garrett Fawcett, warned that such legislation would install
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a false sense of security among men who believed that “irregular sexual intercourse can be made safe by legislation” (ibid: 156). What Fawcett and the Commission did advocate, nevertheless, was a greater recognition that venereal disease was “a moral as well as a physical evil and should be combated with moral as well as with physical weapons” (ibid: 158). This medico-moral hypothesis was also endorsed by AMSH president, Dr. Helen Wilson, who argued that “the real fight is a fight with prostitution itself” (ibid: 158). Given the escalating eugenic based concerns regarding the health implications V.D. were believed to be having upon both the existing and future population, and that the Commission had shown syphilis to be a problem endemic to all socio-economic classes, regulating venereal disease was positioned as an issue of both national and personal urgency.
If 13a and the Clubs Act evidently failed in supplanting anxieties over venereal disease, the implementation of 40d failed in gaining both public and political support. Opposition focused upon two specific grievances. Firstly, in much the same way as feminist groups, religious bodies, and liberal politicians had been mobilised in the previous century to speak out against the intrinsic sexual double standard which underpinned the C.D. Acts, 40d was objected to on eerily similar grounds. Under this legislation, any woman who was subsequently found to have venereal disease - after being subjected to invasive medical examination -could face imprisonment for a period of up to six months, whilst as Liberal M.P. Mr. Lees-Hastings noted in April 1918, “no penalty of any sort is to be inflicted upon the soldier or the sailor who on his side infects a woman with venereal disease” (HoC Debates, vol. 107, 19 June 1918, col. 445). When, in April 1918, the HoC sat to discuss 40d for the first time since its implementation, it was clear that Lees-Hastings was not the only M.P. prepared to voice opposition. Not only was the sexual double standard objected to on moral and ethical grounds, but the practical difficulties and implications associated with targeting women was already believed to be aggravating rather than alleviating the spread of disease. Mr.
Henry Chancellor, M.P. for Haggerston Division of Shoreditch, was particularly sceptical of the War Office’s intentions given that 13a already provided police with the potential to keep women away from troops. In response, advocates of 40d argued that troops were already controlled by equally as severe measures under military regulations, whereby, “any soldier who is guilty of concealing venereal disease is liable, by sentence of court-martial, to two years’ imprisonment”
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(ibid: col. 445). However, as Chancellor pointed out, if a man is found to be free of disease he is absolved of any punishment, yet in the case of a woman she is not pardoned but rather charged for solicitation (ibid: col. 450). In this sense, 40d was not only culpable of promoting a sexual double standard but also of being a legislative provision which theoretically could doubly incriminate women. This idea that the War Office were making deliberate scapegoats of women deeply antagonised the AMSH, who joined forces with almost sixty other societies in the campaign against 40d (Laite 2008a: 212). This was a grievance further exacerbated by the fact that unlike previous legislation, 40d made no distinctions between the prostitute and the rest of the female population, a move that no doubt had been influenced in part by wartime panics surrounding ‘khaki fever.’
Supporters of this provision were keen to recite statistical information which positioned the amateur rather than the professional as the greatest purveyor of disease. For example, the Secretary of State for War claimed that his investigations had shown that:
“... men infected with venereal disease, in four-fifths of cases, caught it not from professional prostitutes ... but caught it from servant girls, shop girls, and others, whose own friends and families did not know of the habits into which they had fallen, and of whom not one in a thousand would come under the eye of the police...” (HoC Debates, vol. 107, 19 June 1918, col. 449).
However, those who mobilised in opposition to 40d were perturbed by the idea that the government were exploiting fears over medical contagion in order to supplant the panic surrounding feminine sexual immorality. This was undeniably a convenient means through which the police were afforded legislative power to regulate not only the professional woman but also the amateur, who crucially was unable to be legally reprimanded under the solicitation laws as it relied on the prerequisite that a woman was known to be a common prostitute. In many ways, the path to and implementation of 40d symbolised the first instance in which the blurring of the professional and amateur in the social psyche mobilised legislative review and reform, a pattern which was to be repeated throughout the interwar period with various outcomes. It was also a vivid example of how the state were increasingly making attempts to legislate the sexual behaviour of young women, in
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doing so carving out a symbiotic relationship between feminine sexuality and larger concerns surrounding national strength and power. The Armistice may have signalled peace in Europe, but, as we shall see, it by no means spelt the end of prostitution occupying a central position within political and public opprobrium.
(3:1)The path to the SOC
As the war was drawing to a close in May of 1918, Lord Sandhurst presented to the House of Lords
“a Second Reading to a Bill to amend the Criminal Law Amendment Acts, 1885 to 1912, and to re-enact with amendments the Indecent Advertisements Act, 1889, and Section 2 of the Venereal Diseases Act, 1917,” (the first reading of which had taken place a month earlier) (HoL Debates, vol. 29, 7 May 1918, col. 952). Four years earlier, the Bishop of London had also introduced a CLA Bill to the House, in which he made four proposals for legislative change:
(1) To make it an offence to commit an act of indecency with a girl of sixteen whether she consented or not; at present consent is a good defence for an indecent assault if the girls is thirteen or over;
(2) To make carnal knowledge of a girl under 18 a criminal offence; this generally is described as raising the age from sixteen to eighteen;
(3) To abolish the defence that a man, having defiled a girl under age, had reason to believe that she was of the age or over it;
(4) To extend from six months to twelve months the time within which proceedings could be taken against a man charged with an offence (HoL Debates, vol. 29, 7 May 1918, cols. 953-954).
Although the Bishop of London eventually withdrew his Bill, what had unfolded over the intervening period by way of escalating anxieties over the spread of venereal disease and the role of the amateur, and a general belief that there had been “some lowering of the standard of public morality” during the war, was clearly for Lord Sandhurst – and many of his colleagues in the House of Lords and to a lesser degree the House of Commons – evidence that such legislative amendments were now “an urgent war measure” (ibid: col. 961). In fact, just over a year earlier a
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CLA Bill with similar provisions had been forwarded, and whilst it failed to secure legislative change, the frequency with which such petitions for amendment were emerging from Parliament was surely a testament to the way in which the war had served to push prostitution, and feminine sexuality more broadly – to the fore of the political agenda.
Sandhurst forwarded seven clauses, the first five of which had the potential to dramatically alter the ways in which prostitution and the prostitute were legally dealt with. Clause 1 and 2 - which closely emulated the Bishop’s Clauses 1,2 and 4 - were concerned with strengthening the legislative protection of those under the age of sixteen by both abolishing “the plea of defence that a person under sixteen consented to the act complained of,” and withdrawing as a defence “the reasonable cause of belief that the age was sixteen or over” (the second clause also proposed to extend the maximum penalty for those found guilty under this charge from six months imprisonment to twelve months) (ibid: col. 954). Sandhurst’s Bill, however, did not advocate the raising of the age of consent, an omission he had based upon the advice of the Home Secretary who had informed him that “if it were inserted you could hardly escape from inserting the defence that a man had reasonable cause to believe that a person was of the age or over the age” and that “it is difficult to get convictions where the age is sixteen, to say nothing of seventeen or eighteen” (ibid:
col. 954). Clause 3, was particularly interesting, with Sandhurst advocating the enactment of legislation that said “where a girl is convicted before any Court of being a common prostitute, of loitering and importuning for purposes of prostitution and solicitation, such a girl under eighteen may, until the age of nineteen, be detained in a home in lieu of punishment” (ibid: col. 954). For Sandhurst, this proposal was “by way of protection,” a practical response which sought to shield young women from “the evil influences of their homes” and the fellow inmates they would encounter if referred by the courts to prison (ibid: col. 955). Clause 4 was concerned with raising both the rates of pecuniary fines and length of prison sentences issued against individuals involved in the managing and assisting of brothels as set out in the CLA of 1885. The existing penalties were set at £20 or three months imprisonment for a first offence, and £40 or four months imprisonment for a second offence. Sandhurst argued that given how “the trade is a very lucrative one” such
“small does, if not laughed at, are not heeded, and we have been told that in their organisations
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[brothels] provision is made in the accounts to treat these as working expenses” (ibid: col. 957). He proposed raising these penalties quite considerably to “£100 or three months imprisonment for a first offence, £250 or imprisonment with or without hard labour for six months for a second offence,” and/or “in any such case both fine and imprisonment” (ibid: col. 957). Clause 5 sought to bring legislative permanency to the temporary wartime provisions used to deal with the spread of venereal disease. It proposed making “it a criminal offence for a person so suffering from disease in a communicable form to have sexual intercourse with any other person, or to solicit or invite any other person to act with him or her” (ibid: col. 957). Moreover, persons suspected of spreading venereal disease would be liable to a “medical examination by the person’s own doctor or a prison doctor” (ibid: col. 957). In spite of the stance taken in 1916 by the Royal Commission which stated that the regulating of venereal disease was not a matter for criminal law, Sandhurst’s Bill proposed
“to cope with the evil” by making it a criminal offence (ibid: col. 957).
Concurrently, in the Spring of 1918 Lord Beauchamp had introduced his Sexual Offences Bill to the HoL. With striking similarities to Sandhurst’s CLA Bill, the proposals of the SOB were another instance of the increasingly interventionist role the government were playing (or seeking to play) in matters of individual sexuality. And, just like the CLA Bill, the SOB Bill used the pretext of extended protection (i.e. for young girls against the sexual advances of men, for the public at large against the spread of venereal disease) in order to rationalise and legitimise this movement towards greater control over the nation’s sexual morality. Where the SOB Bill differed was in its call to raise the age of consent from sixteen (as it currently stood) to seventeen. It also proposed to raise the penalties issued against women for the offence of solicitation, although it did not include a provision which advocated the detention of girls under 18 found guilty of street prostitution offences within a reformatory setting. By the early summer of 1918, a Select Committee (composed of six members from the House of Lords and six members from the House of Commons) was created “to consider the Criminal Law Amendment Bill and the Sexual Offences Bill,” with the anticipation that, where appropriate, particular clauses from these two separate bills could be revised and subsequently consolidated into one legislative enactment (Cmd. 142/1918).1
1 This led to the establishment of the Joint Select Committee on the Criminal Law Amendment Bill and
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On the 6th August 1918, the Joint Select Committee on the Criminal Law Amendment Bill and Sexual Offences Bill met for the first time. It was however, as Swanwick has noted, a Committee which was both slow to get off the ground – “it was not until 15 October that it began to take evidence” – and one which was ultimately cut short by the General Election in the December (Swanick 2001: 213; Cmd. 222/1920). Whilst no legislative amendments surfaced in this instance, the proposed clauses for change and the consequent debates they ignited testified to how politically central feminine sexuality and prostitution were at this moment, to how far the figure of the amateur had began to saturate legal discourses, and more importantly, the discordant and competing stances adopted by those who presented evidence to Committee and beyond. For example, the proposal to raise the age of consent was fervently welcomed by social purists and feminists such as Dr. Wilson (who presented her evidence as an independent witness rather than on behalf of the AMSH ) and Mrs. Gordon, the President of the National Union of Women Workers of Great Britain and Ireland (Cmd. 142/1918: 49-56; ibid: 57-65) . In fact, Wilson and Gordon both advocated that the age of consent should be extended to 18 years of age, for as Gordon argued, “...
no girl under that age ought to be regarded as personally the one at fault; that she should be looked upon more or less as a ward of the whole community, and that her consent should not be looked upon as legal consent or as meeting the legal requirements until she is of a certain age” (ibid: 58).
However, as Bland has observed, in raising the age of consent there were “implications for the control of the young ‘amateurs’” (Bland 1982: 382). After all, in this climate where - as the evidence presented over the course of the Committee itself drew attention to – the amateur was positioned as a figure of particular concern, raising the age of consent was not just about extending the net of protection but also the net of control. Indeed, statements such as, “amateur prostitution has increased,” “probably 72 to 75 per cent. of venereal disease comes from the amateur,” and “the amateur really prevails much more largely nowadays than does what is called in the Acts the common prostitute,” were fairly typical of the views forwarded by the witnesses (Cmd. 142/1918:
12; ibid: 21; ibid: 34).
Sexual Offences Bill (hereafter CLABSOB 1918).