The offences which are punished under other Acts of Parliament, or
according to the common law of England, are all either carefully defined
by these Acts and that law, or else they are such as unmistakably to
define themselves. In these Contagious Diseases Acts, on the contrary,
there is no definition of the offence treated under them, nor do we find
that the offence is such as unmistakably to define itself. On the
contrary, we find amongst the advocates of these Acts, no less than in
society generally, the widest possible variety of opinion as to the
definition of a prostitute. This variety of opinion is only indicative
of the immense difficulty of drawing any marked line as to where a woman
may be justly designated by this name. There are many easy-going persons
of the upper classes who know nothing of the poor, and who talk of this
unhappy class as if they were as easily distinguishable as a negro is
from a white man; but those who are acquainted with the poorer classes
of women know the utter fallacy of this method of judgment, and are well
aware that there is amongst this class of sinners as long and varied a
series as in any other. Moreover, those who have looked at all carefully
into the subject observe, that there are in human nature deeply-seated
causes why this indistinctness of definition is maintained rather than
otherwise; for they can scarcely help being conscious that the real
cause of the difficulty which men who legislate on this subject
experience in arriving at a just determination of that degree of guilt
which is to attach this terrible appellation to a woman, arises in a
great measure from the disingenuousness of men, and their disinclination
that their sex should be acknowledged as the accomplices and companions
of the persons thus defined. Until war be waged against impure men, as
well as against impure women, it will remain impossible to define
prostitution. It is amazing to see in this unequal war waged against the
weaker sex only, how men who legislate for their own interests have, as
it were, talked themselves into the notion, if it were possible to do
so, that these poor women are sinners in this respect in their own
single persons, and that male persons have no part whatever in the
offence.
The attempt to define a prostitute is as difficult as it is, in the long
gradation of character among men, from the most virtuous to the most
vicious, to fix on that point at which a man may be stamped as an
immoral character. Nevertheless, if the purification of society were the
object of these laws, instead of the protection of one sex against the
other, it would be possible, for legal purposes, to define prostitution,
although the definition might be arbitrary. But for the purposes of this
law, which does not aim at the purification of society, but only at the
protection of one sex against the other, it is absolutely necessary that
definitions should be avoided, and that the wholesale treatment of the
weaker sex should be carried on in a maze of indefiniteness and
arbitrary selection.
But without inquiry further into the causes which operate to bring about
this result, it is evident that in the absence of any unanimity of
opinion in the public mind as to what constitutes a prostitute, and in
presence of the difficulty of drawing the line which public opinion
admits, these Acts were bound to supply the definition. In the long line
of women, extending from the most virtuous to the most vicious, there
are two points at which the Acts might, if they pleased, have defined
prostitution. Yet they adopt neither of these definitions. In the first
place, they might have said that every woman is to be called a
prostitute under these Acts who voluntarily and by some avowed method
assumes the name; or secondly, that every woman who is found
associating, under any circumstances, with a man, and who cannot produce
a certificate of her marriage with him, is to be called a prostitute
under the Acts.
Public opinion would not sanction the latter definition.
They did not adopt the former definition because it would not have been
sufficiently inclusive for the purposes of the Act.
What they have really done is to leave the word undefined, and
professing to adopt something like the former definition, thus soothing
the alarms of justly-minded persons, they practically adopt the latter
definition, with such arbitrary omissions as shall, in various places
and at various times, seem good to the policeman of the district and the
justice of peace of the district.[67]
The fact, indeed, which constitutes one of the greatest and most
insidious practical abominations in connection with these Acts is the
fact that, in virtue of this non-definition of a prostitute, the
policeman and justice of the peace ride rampant at their pleasure
throughout all that immense border land of humble society which lies
between the confessed prostitute and absolute virtue. All the objections
which we have urged against these Acts, with respect to the
unconstitutional method by which they decide whether a woman is a
prostitute or not, are intensified tenfold by the absence from the Acts
of any definition as to what constitutes prostitution. A justice of the
peace is therefore set to decide the question of fact as to a woman’s
character, in which decision there are involved, as we have shown, most
grievous consequences; and he is set to do this with absolutely no guide
as to what is the thing which he is to determine the woman to be or not
to be,—no guide either from the Acts in question, or from the concurrent
unanimity of society at large. The result of this is, and must be, that
the definition of what a prostitute is, gradually falls into the hands
of the policeman who accuses her; a grievous and lamentable consequence
of this law, which constitutes one of its greatest oppressions, whereby
the whole operation of the law degenerates into a mere hunting in the
streets by policemen of women suspected by them of unchastity.
In all offences which are punished by law, and which are capable of
graduation, as all offences are, there is established a corresponding
graduation of punishment, which usually varies through very wide limits.
Under the Acts in question there is no graduation of punishment,
although, as we have seen, there is such a graduation of offence that
the law cannot even define where the offence begins. The same punishment
is meted to all, and the same treatment. It may be necessary for the
purposes of this Act that it should be so. If it is thus necessary, the
Act again stands condemned by this very admission. Let the reader
compare this law then with any other summary case, for instance that of
petty theft. If a man steal, theft is defined exactly, and the case is
submitted to the justice, who, taking into account all the circumstances
of temptation, of youth, or of poverty, administers a punishment such as
he may think commensurate to the particular offence. Here an offence
distinctly defined is submitted to a justice, who selects a commensurate
punishment.
But in the case under this Act it is exactly the reverse. It is the
punishment alone which is defined, and the definition of the offence is
left to the justice.
There cannot be imagined a greater opportunity for error, nor a more
utter reversal of all the principles of justice.
To submit such a case even to the superior tribunal of twelve selected
men, in whose election the prisoner has a choice, would, under these
circumstances of indefiniteness of charge, by no means secure for the
accused a just decision. How much less is this likely to be secured
under the circumstances of trial prescribed by the Act?
Let the reader observe too, in passing, the oppressive character of the
Act. The Court is to be closed, unless the woman desires it to be open;
it will generally be painful to the justice that such a case should be
tried with open court. The first action of the law then is to bring the
woman into opposition with that judge who not only, alone, is to
determine the facts on which she is tried, but is also alone to define
the offence.[68]
It may be said by some that should the woman be falsely condemned there
is open to her the means of redress prescribed in this as in all similar
Acts of Parliament. She may sue those concerned for damages, which she
will get if she can prove that she has suffered an injury. I will not
refer here to the great difficulties thrown in the way of any woman
under these Acts obtaining any redress by the special clauses which
refer to that redress. But it would seem as if the whole Act had been so
framed that whereas errors under it should be inevitable, redress should
be impossible. For if she be wrongly condemned for being a prostitute,
how can she get redress for that false condemnation for an offence the
definition of which is absolutely and entirely in the hands of the
person who condemned her?
There is an infinite number of minor oppressions and necessary
illegalities growing out of a law which is itself essentially oppressive
and illegal, such as the intimidation by police, bribery, perpetual
spying and eaves-dropping, the investing of the hospital surgeons with
the powers of magistrate and gaoler in one, and illegal orders, in
contravention even of the Acts themselves, issued by the War Office and
the Admiralty, such as we have already referred to. On these, which are
the vicious fruits of a vicious principle, it is not my object here to
dwell; but there is one point to which, before leaving this part of the
subject, I wish to call the reader’s attention.
Clause 28, Act 1866, runs as follows:—“If any woman, subjected by an
order of a justice under this Act to periodical medical examination, at
any time temporarily absents herself in order to avoid submitting
herself to such an examination, on any occasion on which she ought so to
submit herself, or refuses or wilfully neglects to submit herself to
such examination on any such occasion; if any woman authorized by this
Act to be detained in a certified hospital for medical treatment quits
the hospital without being discharged therefrom by the chief medical
officer thereof by writing under his hand (the proof of which shall lie
on the accused); if any woman, authorized by this Act to be detained in
a certified hospital for medical treatment, or any woman being in a
certified hospital for medical treatment, for a contagious disease,
refuses, or wilfully neglects, while in the hospital, to conform to the
regulations thereof approved under this Act, then, and in every such
case, such woman shall be guilty of an offence against this Act, and, on
summary conviction, shall be liable to imprisonment, with or without
hard labour, in the case of a first offence, for any term not exceeding
one month; and, in the case of a second or any subsequent offence, for
any term not exceeding three months; and in the case of the offence of
quitting the hospital without being discharged as aforesaid, the woman
may be taken into custody, without warrant, by any constable.”
Clause 29, Act 1866:—“If any woman is convicted of, and imprisoned for
the offence of absenting herself, or of refusing or neglecting to submit
herself to examination as aforesaid, the order subjecting her to
periodical medical examination shall be in force after, and
notwithstanding her imprisonment, unless the surgeon or other medical
officer of the prison, or a visiting surgeon appointed under this Act,
at the time of her discharge from imprisonment, certifies in writing to
the effect that she is then free from a contagious disease (the proof of
which certificate shall lie on her); and in that case the order
subjecting her to periodical medical examination shall, on her discharge
from imprisonment, cease to operate.”
A woman, then, the question of whose honour has been determined by an
illegal method of trial, and who has in consequence been adjudged to
undergo these examinations, is, if she refuses to submit to them, sent
to prison, at the end of which time, when she is let out of prison, she
may find the order for her examination still in full force. If she again
refuses, she must again go to prison. The option is continually given
her, at each time she comes out, of submitting to this examination
fortnightly for a year, or of again going back to prison.
This part of the law alone is more worthy of the Spanish Inquisition
than of this free country. There never was a law so calculated at every
point to be the vehicle of persecution; and this iniquitous procedure is
calculated to break the spirit of any woman. Such a law, such a mode of
punishment—close imprisonment for life, with the constantly presented
alternative of a brutal personal violation—such a punishment would be
bad enough if following after the most regular, constitutional, and
careful trial and conviction. But what, in God’s name, are we to think
of it when it follows on a conviction such as I have already described?
That these consequences may not be likely to happen is no satisfactory
answer; that it should be possible for them to happen under the laws of
England is itself sufficiently intolerable.
The whole treatment of the women who are brought under the operation of
these Acts has the general character of those inquisitorial proceedings
in the dark ages, which are condemned by all, and the very record of
which is scarcely now permitted to be revived in any publication. There
are cases of the ancient “peines fortes et dures,” which certainly did
not involve bodily pain, which latter was often preferred by the victims
when a choice was given. The inquisitors knew that to wound the
emotional part of a woman’s nature was oftentimes greater torture than
actual laceration.[69]
In concluding this chapter, I cannot avoid this opportunity of saying,
that although we have been as yet objecting to these Acts on account
chiefly of the innocent, or comparatively innocent, yet we must strongly
assert that, in the application of them to the most deeply guilty of the
class of women who come under their operation, they are equally
dangerous and reprehensible. For this reason, that the essential danger,
which we have all along pointed out, lies in the infringement in any
case whatsoever of our ancient mode of justice—an element of license
introduced into our criminal code being the first step towards the
extinction of liberty for all. When Parliament ventured in the last
century to infringe upon the principles of our constitution, in the case
of Mr. Wilkes,[70] Lord Chatham, in deprecating their action, spoke the
following words: “The character of Mr. Wilkes has very improperly been
introduced into this question; for my own part, I consider him merely
and indifferently as an English subject, possessed of certain rights
which the laws have given him. In _his_ person, though he were the
_worst_ of men, _I contend for the safety and security of the best; and
God forbid, my Lords, that there should ever be a power in this country
of measuring the civil rights of the subject by his moral character, or
by any other rule than the fixed law of the land_.”
Yet, strange to say, we find people whose ignorance is inexcusable,
speaking as if some laxity in the matter of criminal justice towards
this particular class of persons were of little consequence, since they
are judged by common consent to be in a manner beyond the pale of
society. Yet surely a man who has murdered some half-dozen persons,
after the manner of William Palmer, may be equally considered as beyond
the pale of society; yet in this case, and all similar cases, every
possible precaution is taken in the matter of his trial; and the
character alike of our laws, and of those who dispense them, is felt to
be involved in the justice of the verdict given. Such are the necessary
and proper advantages granted by our laws to the most deeply dyed
criminal who happens to be of the male sex. It points to something
radically wrong, both in human nature and in our society, when the mere
accident of the criminals being in this case women makes it possible for
such illogical and loose notions to prevail in regard to what legal
justice owes them. Again, let us call the reader’s attention to the
fact, that no amount of heinousness in the nature of those offences with
which any class of the community may be charged, ought to deprive that
class of the due exercise of impartial justice in regard to them. The
creation of a proletariate class in a nation insures that nation
eventually being smothered in its own mud.
I shall conclude this portion of my subject by drawing attention to the
following exhaustive passage from Lieber, descriptive of the
characteristics of a just form of criminal trial, and to the contrast
which it presents in every particular to the laws which we condemn.
“Among the points which characterize,” says Lieber,[71] “a fair, just,
and sound penal trial, according to our advancement in political
civilisation, we would designate the following:—No intimidation before
the trial, or attempts by artifice to induce the prisoner to confess—a
contrivance which protects the citizen even against being placed so
easily in a state of accusation;[72] the fullest possible realization of
that principle, that every man is held innocent until proved to be
otherwise; bail; a total discarding of the principle, that the more
heinous the imputed crime is, the less ought to be the protection of the
prisoner, but, on the contrary, the adoption of the reverse; a distinct
indictment, and the acquaintance of the prisoner with it sufficiently
long before the trial to give him time for preparing the defence; the
accusatorial process, with jury and publicity, therefore an oral trial,
and not a process in writing; counsel or defensors for the prisoner; a
distinct theory of evidence, and no hearsay testimony; a verdict upon
evidence alone, in pronouncing guilty or not guilty; a punishment in
proportion to the offence, and in accordance with common sense and
justice; especially, no punitory imprisonment, which must necessarily
make the prisoner worse than he was when he fell into the hands of
Government,[73] nor cautionary imprisonment before trial, which by
contamination must advance the prisoner in his criminality;[74] that the
punishment adapt itself as much as possible to the crime and criminality
of the offender; that nothing but what the law demands or allows be
inflicted, and that all the law demands be inflicted—no arbitrary
injudicious pardoning,[75] which is a direct interference with the
government by law.”