PROSTITUTION AND THE LAW
Apparent acquiescence of European communities.—Indications of
scientific study and action.—Opinion more homogenous than laws.—Is
prostitution in itself a vice or a crime?—Its exploitation a crime.
Despite the evidence to the contrary produced at the close of the
preceding chapter, the notion is prevalent that the conscience of Europe
has been and is, to put it euphemistically, philosophic in its attitude
towards this ancient evil; that on the Continent at least the “oldest of
professions” is simply acquiesced in, on the theory that “what can not
be cured must be endured.” Certain external appearances seem to give
countenance to this view: the prostitute walks the highway apparently
unmolested; she waits in the café and music hall for her prey; in some
cities the licensed bordell furnishes a notorious market for the buying
and selling of sensual gratification. The situation, however, is less
simple than thus appears. Society has never, as a matter of fact, for
any great length of time contentedly accepted prostitution as an
unavoidable evil. Periods of harsh and unintelligent repression have
alternated with periods of comparative but never complete indifference,
consequent upon previous failure. Recently much intelligent effort has
been directed to the comprehension of the evil and of the phenomena
contributing to and contingent upon it. An era of scientific study may
be fairly said to have set in. Wholesale and traditional methods of
attack have been discredited and are being discarded. Frank discussion
of the subject as a social problem is common on the Continent and is
beginning to take place in Great Britain, where it was long tabooed.
I have pointed out that prostitution appears as an almost uniform
phenomenon in different European countries. The same uniformity in the
main characterizes public opinion in reference to it. I mean, not that
every nation is a unit, but that the general trend of opinion is much
the same and that the same shades of opinion exist in all countries. For
the most part, the attitude is indulgent towards the man, severe towards
the woman; on the other hand, the single moral standard has never been
so vigorously advocated in Europe as it is to-day.
While public opinion in regard to prostitution is thus fairly uniform,
laws differ considerably; but this is of less importance than might be
supposed, because the general attitude of the authorities conforms to
sentiment rather than to statute. Laws passed under strong but transient
emotional excitement are simply not enforced, or are enforced so
capriciously that they do not affect the situation. Similarly, laws are
sometimes outlived rather than repealed. In the long run policy is in
this matter determined by dominant opinion. In France, as we shall see,
a very definite policy is pursued, not because it is laid down in the
law, but because it is in harmony with tradition and general sentiment;
in Germany public opinion not only sustains the authorities in ignoring
certain laws, but actually compels them to ignore them; in England,
policy, law and opinion are more nearly in unison. It is important
therefore to ascertain what the general substratum of foreign opinion
is, for unless harmonious therewith laws are a dead letter; judges and
juries will not convict, prosecutors and police will not act
consistently.
We must, in the first place, recur to a point already made. Prostitution
is not a single and simple phenomenon. Certain distinctions must be
made. In one case, prostitution may be the voluntary and unobtrusive act
of two mature individuals presumably in full possession of their senses;
in the next, it may involve the exploitation under duress or otherwise
of women for the benefit of third parties; in the next case, its salient
feature may be offensive provocation by the woman for the purpose of
inducing men to indulge in immorality. From the standpoint of law,
public opinion and police policy these different phases or aspects of
the practice of prostitution present different problems. For the moment
it is only the first of these varieties with which we deal. In reference
to prostitution thus taken in its simplest form as the voluntary and
unobtrusive act of two adults, the practical and fundamental question
which confronts lawmaker and administrator is this: Is the mere act of
prostitution, is prostitution taken by and in itself, a vice or a crime?
In general the line between vice and crime can not be clearly drawn, for
the question is one for the publicist, not one of abstract ethics. It
lies now here, now there, according to circumstances.[212] Crimes are
such acts as are reprobated by unified opinion and as such punishable by
the crude process of the law; vices are repugnant to the cultivated
instincts of society. An act—prostitution, for example, may have all the
disastrous consequences of crime, and yet in a given society not be
reachable as such. Whether it is or not depends partly on public
opinion, partly on the difficulty and the consequences of applying penal
methods.
Whatever be the legal theory, public opinion in Europe to-day regards
the prostitution of mature individuals in the first of the senses above
characterized as in itself a vice, not a crime. We shall shortly hear
that under certain conditions professional prostitution is penalized;
but it will appear on closer examination that the penalty in so far as
it is actually sustained by opinion and enforced by the courts or
otherwise attaches not to prostitution in and for itself, and not to the
prostitute as a person, but only to certain overt acts and to certain
surrounding or attendant conditions. There is indeed a distinct tendency
against the extension of the conception of criminality to the act
itself. In other words, opinion is plainly in favor of viewing
prostitution as a vice, not as a crime, wherever the criminal view is
not forced by conditions extraneous to the person or to the mere act of
immorality.
This can not be for the reason that prostitution is a less serious evil
than was formerly supposed: on the contrary, never before have its
disastrous consequences been so clearly and fully apprehended; nor
because the law is indifferent as to the form which sex relationship
takes, for it expressly declares in favor of the monogamous married
state. An explanation must be sought in an entirely different direction.
I have previously pointed out the fact that prostitution is a conception
necessarily involving two factors, both equally essential. It so far
resembles slavery: if there are slaves, there must be slaveholders; if
slavery is a disgrace, then the slaveholder must bear his full portion
of obloquy. If prostitution is a vice, both parties are vicious; if it
be a crime, both parties are criminals. Now as a matter of history, no
proposition aiming at punishment has ever involved both participants.
The harlot has been branded as an outcast and flung to the wolves: she
alone,—never the man, her equal partner in responsibility. And, indeed,
not even the harlot uniformly. The poor and stupid have been the
victims; the showy courtesan, pursuing roundabout methods, has never
been molested. Something more than justice has thus been violated; the
very objects of punitive policy have been sacrificed. For prostitution
must be punished if at all, because its consequences are bad. Yet so
long as the woman alone suffers, these consequences are not abated. In
defining prostitution we recognized certain criteria as accounting for
society’s objection to its existence—the waste it involves, the disease
it spreads, the demoralization it entails. Punishment of the woman in
any particular case stops none of the these; the man simply wastes his
substance upon others; contracts disease from other women and carries it
elsewhere, even into his own family; corrupts others, in case a previous
associate has been put out of reach by the law. To make prostitution a
crime for the woman alone is therefore at once inequitable and futile.
It is likewise becoming progressively more difficult. As long as
societies were organized on the theory of male superiority, the woman
could perhaps be singled out to bear alone the burden of a dual offence.
But that day is past. Theoretically, the equal ethical responsibility of
both sexes in every relation in life is already recognized; it is
rapidly becoming incorporated in law. With the probable advent of woman
suffrage, it will become operative in fact. The stigma and consequence
of crime must therefore be either removed from the woman or affixed to
the man.
As to the latter, certain difficulties interpose. The professional
prostitute being a social outcast may be periodically punished without
disturbing the usual course of society: no one misses her while she is
serving out her turn—no one, at least, about whom society has any
concern. The man, however, is something more than partner in an immoral
act: he discharges important social and business relations, is as father
or brother responsible for the maintenance of others, has commercial or
industrial duties to meet. He can not be imprisoned without deranging
society. Is the offence of such a nature as to make this advisable or
feasible?
Assuredly, as matters now stand, it is not feasible. It is not feasible
for men; it is not really feasible for the women either; indeed in the
case of many women, the same difficulty arises that I have just pointed
out in the case of men. We have long since learned that the bulk of
women engaged in prostitution are also more or less otherwise employed.
They may be aiding to support their families, by their legitimate as
well as by their illegitimate earnings. Are these women to be plucked
from their employments under conditions not enforced against their male
partners? No society in which prostitution is held to implicate two
parties will tolerate it. Moreover, if the criminal charge is to lie
against the professional prostitute alone, how is the line to be drawn?
The women concerned are, as we learned, professionals one day,
incidentals the next; at some other time they may be leading an immoral
life, yet not that of a prostitute. Finally, in view of the tendency of
women to leave the life, is it wise to coerce them to cling to it by
branding them as criminals? The attempt to view prostitution as in
itself a crime is therefore inexpedient as well as unjust.
“When society declares a certain act punishable” says Johansson, “a
general feeling of equity requires that all actions of similar nature
performed under similar circumstances be likewise declared punishable.
If it appears to be a matter of insuperable difficulty to apply the
punishment to an extent in some way satisfying the demand of the public
for a wide and equal application of the law, it is better to refrain
from any application of punishment at all. There is no reason to fear
that moral indignation and its beneficent effects on individuals will
therefore cease, for it is not the punishment that produces the
indignation.”[213]
There is still another aspect of the problem. Investigation shows that
irregular sex intercourse on the part of the male is practically
universal on the Continent. That some of it is casual and unpaid, the
rest purely mercenary, only aggravates the difficulty; for no one
proposes to treat mere immorality as a crime and in concrete cases it
may be technically impossible to make out whether a specific act is
prostitution or immorality. An act universally indulged in by men may be
universally deplored as a weakness; it cannot be universally punished as
criminal unless all men join in penalizing one another.
Other difficulties also arise to prevent the acceptance of the crime
concept. Prostitution and commerce therewith are indeed deplorable, but
whence, it is asked, does the State derive the right to interfere with
the voluntary exercise of personal liberty by mature individuals, so
long as no one else is disturbed thereby? We touch here the root of the
European view of the matter. The English urge that personal liberty in
this realm can be infringed only to prevent scandal,—that is, only when
something beyond mere prostitution is involved. “A woman may become
mistress or paramour,” said a high police official to me, “she may
indulge in occasional immorality as she pleases,—why not in
prostitution? She is only using her personal freedom.” Still more
plain-spoken was a Dutch authority: “A grown girl may do what she likes
with her own body.” No one hopes successfully to interfere by means of
penal legislation with the occasional immorality of two individuals;
laws aiming to punish fornication and adultery are therefore practically
dead letters, not only because proof is difficult, but because it is
commonly held to be no concern of the State, provided both parties to
the acts are willing. They are vices, therefore, not crimes, as
societies are now constituted. In the same category, contemporary
opinion in Europe is more and more inclined to place prostitution. The
unanimous enunciation of the French Extra-Parliamentary Commission
fairly expresses present day feeling: “The prostitution of women does
not constitute a crime and does not fall under the application of the
penal law.”[214] This dictum, be it noted, applies only to prostitution
in so far as it involves only two adults without annoyance or profit to
others. Nor is it to be understood as implying that society is either
indifferent or helpless. Denied the use of the criminal arm it still
possesses all the paraphernalia of education, hygiene, and social
reform. Our previous discussion of demand and supply will have suggested
that in the end enlightenment is of broader scope perhaps than
punishment,—even though, as we shall discover, the latter has its place.
The foregoing interpretation of the present state of opinion is
confirmed by the fact that, with the qualification to be shortly
mentioned, prostitution is on the whole practically regarded in the same
light by all European nations. The qualification in question has
reference to controlled or inscribed prostitutes—who form a class apart,
are indulged or punished on lines peculiar to themselves and for
reasons, ostensible and actual, that will be fully discussed later.[215]
The point I now wish to emphasize is this: that the general attitude of
the European authorities towards prostitution in its totality is
practically the same, though the laws differ; and it is the same,
because public opinion is so nearly homogeneous.
In England, Italy, Norway, Holland, and Switzerland,[216] there is no
penal enactment against prostitution as such. “Immorality in itself is
not an offence against the law,”[217] declares the Chief Constable of
Glasgow in a memorandum to the Corporation. A woman therefore runs no
risk of prosecution if quietly and inoffensively she receives men in her
room or house for the purpose of paid sexual intercourse.[218] In France
the ancient laws against immorality were swept away by the Code
Napoleon. Since then, an inoffensive prostitute has been absolutely free
to ply her trade without danger of molestation by the police. We shall
later learn that the police have indeed laid hands on several thousand
prostitutes whom they require to comply with certain regulations; but we
shall also see that this is but a negligible portion of the army engaged
in prostitution, that there exist peculiar reasons for singling them out
for attention, that they are not thus distinguished merely because they
are prostitutes, and that even so the police position in reference to
them is becoming increasingly untenable.
A more complicated legal situation in Germany works out in much the same
way. On its face the penal code punishes professional prostitution for
money,[219]—i.e., prostitution is itself a crime. The section reads:
“Any woman shall be punished with imprisonment, who having been placed
under police control on account of professional prostitution, violates
regulations adopted by the police for the protection of health, order
and decency, or any woman, who, not having been placed under such
control, carries on prostitution for pay.”[220] A certain number of
women have been placed under police control; so long as these obey
police regulations affecting “health, order and decency,” their
professional prostitution is free from interference; in so far as they
are concerned, professional prostitution is not a crime. But the great
majority of German prostitutes are not under police control; they are
therefore liable to criminal prosecution as being professional
prostitutes. It is, however, a notorious fact that prosecution simply on
this score is not attempted. In Germany as in France, the inoffensive
prostitute is not molested. Practically, prostitution for money, called
a crime by the law, is treated as a vice by the authorities.[221] Women
are indeed sentenced to prison terms in accordance with provisions
quoted; but on investigation it will be discovered that they are
arrested not for prostitution, but for disorder, though they are
nominally punished as prostitutes.
The statutory provisions respecting the prostitute’s domicile are
similarly interpreted. The law is very explicit: “Whoever habitually or
for profit assists prostitution by countenancing or affording facilities
for it, is to be punished with imprisonment for not less than one month,
and is liable to fine, besides, of from 150 to 6,000 marks, and to loss
of franchise. In case of mitigating circumstances, imprisonment can be
reduced to one day.”[222] Under the terms of this statute, the keeper of
a licensed bordell, the hotel proprietor who lets rooms for purposes of
assignation, the landlord who knows that his lodger is a prostitute, are
all guilty of crime. Nay, it has been held that merely renting a room to
a woman for the purpose is criminal even though criminal use is not
actually made of it; further, that the words “for profit” do not mean
that money must be received; food, drink, sexual gratification may form
the profit. By another section of the same law, the definition of
pandering is still further extended.[223]
A small section of the German people would undoubtedly like to see the
enforcement of these laws attempted; but generally speaking, people
realize that suppression on such lines is unfair and impossible and that
the undertaking would be disastrous to the police. For the laws bear on
the woman and the renter, wholly passing over the man, who is at least
the accomplice and perhaps instigator. As a matter of fact, therefore,
no steps are taken against the keepers of such bordells as are conducted
on lines sanctioned by the police; inoffensively conducted _rendezvous_
hotels are not molested; and women rent rooms freely wherever they
please, without danger to themselves or their landlords, so long as all
external proprieties are observed. That is to say, the law to the
contrary notwithstanding, prostitution is for all practical purposes a
vice, not a crime. Once more, the court calendars show more or less
numerous prosecutions for “pandering,” i. e., for infractions of the
paragraphs in question. Between 1903 and 1907, the prosecutions averaged
343 annually in Cologne; in Frankfort, 373; in Stuttgart, 57.[224] These
figures tell the tale; landlords are punished if attention is drawn to
them by scandal or otherwise; but the letter of the law, requiring
wholesale eviction, is ignored, because—among other reasons—it is
unsupported by public opinion. “Simple experience teaches that the
standpoint cannot be maintained.”[225] “The penal code proposes to
punish any one who rents a home to the prostitute,” writes Blaschko.
“That is an insupportable condition. Excessive severity leads to
arbitrary punishment of a few individuals, while the mass go unpunished.
The prostitute pays a higher rent to offset the landlord’s risk.”[226]
To the same effect writes Schmölder: “According to the law, a prostitute
is not entitled to have a domicile at all;—in practice they do
anyway.”[227]
What has long been a dead letter, the newly projected criminal code
proposes now frankly to omit. If the present draft is adopted the law
will henceforth read: “Whoever habitually or for profit furnishes
facilities for prostitution shall be punished with imprisonment. This
provision is not to be applied to the renting of lodgings unless the
landlord undertakes to get a higher price through permitting
prostitution on the premises.”[228] The new paragraph thus seeks to free
prostitution as such from prosecution by enabling the prostitute to live
wherever a landlord is willing to rent her a room on the same basis as
anyone else; but a landlord who becomes a pander to the extent of
encouraging prostitution for the sake of obtaining high rentals remains
amenable to the law. A subsequent paragraph still further frees the
prostitute as such from punishment; it reads: “A person shall be
punished by arrest or imprisonment, who is a professional prostitute,
provided he or she violates the regulations set up for the protection of
health, order and decency.”[229] That is, the penalties are attached not
to the prostitute as such, but in so far as she oversteps limits imposed
by the police for the maintenance of health and order. Thus the law will
be squared with practice. In one respect also the proposed statute
registers an advance in public opinion, for it substitutes “person” for
“woman” and thus opens the way for a more equal treatment of the sexes.
To the foregoing discussion, the theory and practice of other countries
add very little. A general conviction that prostitution is an evil not
to be tamely endured has led lawmakers from time to time to endeavor to
stamp it out on penal lines; but invariably the considerations
previously adduced have undermined the legislation in question.
Thereupon much ingenuity has been expended in some places in the effort
to gain another foothold. Granted,—say the lawmakers in Hungary and
Denmark—that prostitution in itself cannot be treated as a crime; at any
rate, the prostitute is a vagrant, in that she is without legitimate
means of support. She can therefore be put to hard labor as a public
menace, not because she is a prostitute, but because she is a parasite.
And in this determination,—it is argued—there is no unfairness, since
male tramps and vagrants are similarly disposed of.
This indirect and disingenuous method of treating prostitution as a
crime has had, in practice, precisely the same fate as has befallen more
candid legislation. In the first place, it is dishonest: a vagrant is
homeless; the prostitute is a vagrant, therefore, only if she is without
a domicile. Fairness requires, therefore, that only homeless prostitutes
be taken up as vagrants and for that no special legislation is needed!
The statute will obviously not be invoked against prostitutes generally;
public opinion sustains its application only when there are other
objections than prostitution,—viz., homelessness, intoxication, etc.,
and such offences can be otherwise reached. Moreover, in so far as the
prostitute is in reality aimed at through the subterfuge of vagabondage,
the man-accomplice once more escapes—an intolerable condition, as I have
already shown.[230] It remains then generally true that, despite all
legislation and endeavor to the contrary, prostitution in its elemental
form is regarded as a vice, not a crime.
The situation as respects public opinion alters decidedly, however, the
moment the act involves others beside the two participants. As soon as
order, decency, the contamination of minors, or the interest of an
exploiter is involved, a totally different question arises. A man and a
woman may be permitted unobtrusively to arrange and carry out a
_rendezvous_. So far there appears to be no police method of dealing
with them effectively and impartially. Public sentiment is not ready;
efficient agencies have not been created; fundamental questions of
personal liberty may be raised. But when the streets are used to carry
on negotiations and thereby others are drawn into the maelstrom; when
third parties,—be they pimps, bordell-keepers, venders of liquor and
entertainment, or others,—endeavor to develop prostitution for their own
profit; when disease is communicated, not infrequently to innocent
persons: in all such cases a third party is concerned; and a public that
was more or less indifferent as to what took place between two mature
individuals has become increasingly clear as to its interest and duty.
The measures which were explained in the preceding chapter are required
and justified on this ground. The state prohibits the manufacture of
prostitutes by heavily penalizing the white slave traffic; it attacks
the pimp system on the score of its inhumanity and because it seeks to
widen artificially the scope of the prostitute’s operations; the
bordell, the liquor shop, the low cabaret are in the same category.
Wherever a case can be made out against a third party, the law tends to
become increasingly explicit and severe, for the reason that, even
though prostitution itself be only a vice, its exploitation for the
benefit of others violates every conception of humanity and needlessly
extends the range of demoralization and disease.
The general European attitude may then be summed up as follows. The two
participants in every immoral act are more and more coming to be viewed
as of equal responsibility. Their conduct is as between themselves and
themselves alone, vicious and not criminal. It becomes criminal the
moment it becomes open, involving annoyance to others. In still higher
degree does criminality attach to any third party who profits by
promoting, stimulating, or countenancing the immorality of others. The
differentiation here indicated has by no means been consistently carried
out anywhere in practice or in theory; the laws lack codification, and
authority is more or less dispersed; but opinion is traveling in the
direction indicated, and law and administration are taking their cue
from it.
The change of opinion from the crime concept to the vice concept of
prostitution accompanies and denotes not less, but greater, public
concern on the subject. For it betokens a critical and discriminating
study of the problem,—a reduction of its vast total into constituent
elements, each to be met by its own appropriate procedure. The societies
whose laws indiscriminately denounced all immorality as crime are
conspicuous for the futility of most of the steps which they took in
dealing with it. Results have appeared coincidentally with
discrimination. The scientific attitude has also introduced a mature and
deliberate, though not of course facile, hopefulness. A highly learned
German authority disputes even the necessity of prostitution: “What is
evil in prostitution is not necessary and what is necessary is not
evil.”[231]
The situation as now characterized is, however, retarded and confused by
legislation, police regulations and habits of thought that represent
mere survivals from a standpoint now becoming obsolete. They are
tenaciously held to because, whatever view may be entertained as to
far-reaching policies, prostitution still exists as an evil to be
managed as part of the day’s work. Most conspicuous among the
traditional policies of the Continent is Regulation, to the examination
of which the following chapters will be devoted.