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Paying the price again: prostitution policy in historical perspective

by Julia Laite

Executive summary

  • This paper examines the recent proposals made by the Home Office for a change in the way on- and off-street prostitution is controlled in the UK.
  • It traces the history of the laws currently in place, and examines the development of some key terms in the legislation, such as 'common prostitute' and 'brothel'.
  • Despite the air of novelty in contemporary prostitution policy, much of what the government proposes has already been experimented with. Street crackdowns, for instance, have been enforced several times over the past century or so, and these increases in repression have always had troubling impacts on the safety of the women involved in prostitution.
  • The proposal to allow more than one woman to work from premises is an interesting step forward. Brothels thus defined have been illegal for a hundred years and the policy could provide women with safer working options. But it could also provide organized and exploitative prostitution with a haven in which to operate.
  • Feminist campaigns against 'the solicitation laws' have been going on almost as long as the modern state's control of prostitution. Understanding the historical dimension of these debates may help to increase awareness of the arguments for fairer and more gender-neutral laws which consider the rights of prostitute women.
  • It may also help to overcome the sterile debate over whether to 'tolerate' prostitution, or 'eradicate' it. For understanding prostitution as something negative, as a product of a world in which women are abused, objectified, and economically disadvantaged provides all the more reason to demand that governments should not devise laws to punish prostitutes and deny them rights.
  • While the past century has witnessed massive changes in the status and rights of women, prostitution law has remained static and policies toward prostitution have grown increasingly repressive. A historical perspective thus reveals the ways in which even the newest prostitution-control strategies rely on outdated concepts.

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Introduction

In July 2004, the Home Office published Paying the Price, a consultation paper on commercial sex in the UK which provided information and opinions on a wide variety of problems associated with on- and off-street prostitution. The paper was prepared under the auspices of the then Home Secretary David Blunkett, who was envisioning a possible system of toleration zones for key cities as a way to deal with street prostitution. These reports and papers were circulated and re-circulated amongst Members of Parliament, the police, concerned citizens' groups, individual experts and voluntary organizations, and the Home Office collected over 800 responses. Finally, in early 2006, the government's plans were unveiled.

The toleration-zone idea seems to have disappeared with Blunkett: the new government policy rejects any attempt to licence or quarantine prostitution in specific areas. Instead, it advocates an increased crackdown on street prostitution by calling for stricter enforcement of the kerb-crawling laws which were first put in place in the 1980s. The most striking change in the new Home Office approach, and the one most enthusiastically reported by the daily newspapers, was the decision to allow prostitutes to work together in shared premises. The media chose to refer to this as a 'legalisation' of 'mini-brothels'. For several days, debates between feminists, moralists, sex workers, sex buyers and concerned neighbourhood residents raged over whether or not the UK should 'tolerate' or 'eradicate' prostitution.

These debates are in need of some historical perspective. Examining the history of prostitution law, its implementation, and its critics over the past one hundred and fifty years provides an important dimension to the proposed policies. Firstly, it can give us an idea about what is being changed by the new policy and what has remained the same. This historical examination reveals the strikingly static nature of the UK's prostitution-control strategy and the degree of its reliance on out-dated precepts and exclusionary justice, but it also demonstrates that some of the suggested policies, while a long time coming, may be a step in the right direction. Historical perspective also warns us about what the ground-level outcomes of these suggested policy changes may be. The new policy proposes to protect women and children, and to bring 'those who exploit individuals through prostitution to justice'. The insights of almost two hundred years of history, however, give us cause to fear that it is the women working in prostitution upon whom these new strategies will fall most heavily.

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Change and continuity in the nineteenth century

The first law which made reference to the term 'common prostitute' was the Vagrancy Act of 1824. Subsection 3 of this Act stated that 'any common prostitute behaving in a riotous or indecent manner in a public place or thoroughfare' was liable to a fine or imprisonment. The next law of prostitution control was only applicable to London's police districts: subsection 54 of the Metropolitan Police Act of 1839. This stipulated that 'any common prostitute loitering or soliciting for the purposes of prostitution to the annoyance of inhabitants or passers-by' would be subject to arrest and, if convicted, to a fine, which would increase upon subsequent convictions. In 1847, a very similar law was put in place for the rest of England, in the Towns Police Clauses Act. Together, these 'solicitation laws,' as they came to be called, were used by police in England and Wales to control unruly women in public.

A major change, or rather an addition, to the existing strategy came in 1885, when parliament, under immense public pressure, passed the Criminal Law Amendment Act. In July of 1885, William T. Stead, editor of the Pall Mall Gazette, had published an investigative report which unveiled an alleged organized child-prostitution ring in the heart of London, dramatically entitled 'The Maiden Tribute of Modern Babylon'. The new act raised the age of consent for sexual intercourse from 13 to 16 and created protective laws against procurement and forcible detainment of women by third parties for the purposes of prostitution.

More important for our current conundrum and for contemporary day-to-day policing, however, was subsection 13 of the new Act: 'Suppression of Brothels'. Under the 1885 legislation, any person who kept, managed, or assisted in the management of premises used as a brothel, or was the tenant or landlord of such premises, was liable to a hefty fine or a maximum of three months' imprisonment. The act did not, however, define what was meant by the word 'brothel'. It was not until 1895 that the case Singleton v. Ellison decided that 'brothel' referred to premises used by more than one woman for the purposes of prostitution.

It was good news for women like Miss Ellison, who was working alone and hence escaped conviction. However, the ruling also meant that any prostitute living with another prostitute would be guilty of keeping a 'brothel'. In London around 1885, it seems that the vast majority of off- and on-street prostitutes rented premises with other prostitute women, or rented rooms from poor landladies. These women could not afford to pay police bribes, hire legal defence for their trials, or afford the prohibitive cost of appeal. The years following the act saw a crackdown on these sorts of 'brothels', and the women who owned them were convicted in numbers which reached over 1,000 a year. Keepers of larger brothels, like the infamous Mrs. Jeffries, who had played a starring role in Stead's melodrama as madam to the aristocracy, were prosecuted only rarely over the next thirty years.

One impact of this was the development of blocks of flats from the 1890s to the 1920s, individually rented to prostitutes, which allowed women to live together without coming under the act. This led to an increase in the value of the real estate of commercial sex: landlords would run several properties and charge the women extortionate rents. It also drew other third-party elements into prostitution: cabmen, bell boys and pimps, for example. These third parties would help prostitutes get customers in more subtle ways, as brothel and street prostitution were subjected to increased repression. These third parties would also often exploit, abuse and extort prostitute women, who were made more and more vulnerable to such ill-treatment by their increasingly criminalized status.

Several laws were passed between 1885 and 1922 to curb the exploitation of women and children in prostitution. However, while public concern and sentiment most often worried over the third-party role in prostitution, it always seemed to be the prostitutes themselves who felt the overwhelming brunt of the law's force. For instance, though 1898 saw a new Amendment to the Vagrancy Act passed, which made 'living off the earnings of a prostitute' (or pimping) an offence, in 1900 only 165 'pimps' were sentenced while 7,415 women were convicted under the solicitation laws.

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Criticism and compromise in the first half of the twentieth century

Despite the new laws directed at brothels, the late-nineteenth century was a time of crisis in the control of on-street prostitution, and police found themselves frequently frustrated by certain elements of the solicitation laws. The most troublesome of all for policemen was the 'annoyance' clause of the 1839 and 1847 statutes, which technically required them to prove that a 'common prostitute' was actually bothering people by her solicitation or loitering. This clause, it was understood, was the crux of the offence, for a woman could not be arrested for simply standing on the street, no matter what her immoral intention.

For this reason, magistrates of the 1890s were at times reluctant to convict on police evidence alone, and sometimes when they did it instigated a bothersome outcry from certain groups who were concerned with legal justice, the detrimental increase in police powers and women's rights. Despite the protests and the numerous charges of police corruption, a system of prostitution control developed between the Home Office, the police and the magistrates which relied heavily on what amounted to a removal of the annoyance clause. Magistrates convicted women after a short trial on the evidence of one police officer who, if he even mentioned the annoyance clause in the first place, was not required to produce any evidence of it. This de facto system meant that the early years of the twentieth century witnessed a formidable crackdown on street prostitution, much like the one proposed by the new Home Office policies today.

This system did not go unchallenged. By the First World War, various feminist organizations and civil-rights associations were vehemently protesting against the solicitation laws, which they saw as unequal, unjust, and injurious to the women who came under their influence. A focused campaign was launched by feminists and libertarians in the 1920s, exposing the shortcomings of the summary-justice system and describing the conviction of women on police statements alone as 'against the principles of English justice'. Furthermore, they argued, the term 'common prostitute', with which a woman could be labelled after only one conviction for soliciting, became a legal stigma which prejudiced every further trial she would attend, facilitated future arrests, and marked her as being in a legal class apart, as 'outside the pale of justice'. This label, which became even more official when police began fingerprinting prostitutes in 1917, coupled with the de facto removal of the annoyance clause, meant that any time such a woman was on the street, she was liable to arrest whether she was standing quietly, being accosted by men rather than accosting them, or simply out to buy a pint of milk. Moreover, argued the critics, the solicitation laws rested on a gross double standard of sexual morality, one which held women solely responsible for the transgression and nuisance of selling sex while leaving men unmentioned and unpunished in the buying of it.

These organizations succeeded in getting a bill to parliament several times in the twenties and thirties, demanding that the solicitation laws be repealed and replaced with a law which prosecuted anyone, male or female, prostitute or non-prostitute, who disturbed the order of public places. These bills never passed into law, but such was the force of the protest that the government conceded a Departmental Enquiry into Street Offences. Its report, published in 1929, came down largely against the existing solicitation laws and in favour of the recommendations of their feminist and libertarian critics. The new law, the committee concluded, should not use the term 'common prostitute', and should prosecute any person (male or female) who disturbed the public peace for 'immoral' purposes.

Much to the disappointment of those who had campaigned for a change in the law, absolutely no legislation came along the lines of the recommendations of the Street Offences Committee during the 1930s, though continued opposition to the laws and frustration on the part of the police did see arrest rates remain low until after the Second World War.

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Consensus and control in the second half of the twentieth century

Britain in the 1950s witnessed many changes in the position of the state towards its citizens. One manifestation of this shifting relationship was the appointment of a new Departmental Committee in 1956, charged with reassessing the government's approach to homosexuality and prostitution. It was also in 1956 that the Government made its first alteration to prostitution law since 1912, when it combined what was essentially the 1885 Criminal Law Amendment Act, the 1898 law against 'pimping', and the 1912 Criminal Law Amendment Act (which had created the offence of 'trafficking'), creating the 1956 Sexual Offences Act. This framework still forms the basis of laws directed towards third-party organized prostitution today, and the case law definition of 'brothels' still stands.

In 1957, a year after the Sexual Offences Act was passed, the Departmental Committee into Homosexual Offences and Prostitution published the 'Wolfenden Report', named after its chairman. It agreed with nineteenth-century libertarians that it was not the state's job to police private morality. On these grounds, it recommended repealing the laws which criminalized homosexuality. It also argued that prostitution could not be condemned by the law as immoral in and of itself. However, it did not advocate, as had the previous Street Offences Committee of 1929, the repeal of the heavily criticised solicitation laws. Instead it proposed a rationalized repressive approach by invoking a discourse of rights: not by referring, as had the feminists of the 1920s, to the rights of prostitute women to equality and justice before the law, but rather by championing the rights of 'respectable' citizens to enjoy neighbourhoods free from the blight of street prostitution. This discourse of citizens' rights, which also appealed to the rights of women to be free from harassment, drew even some feminists into the new consensus of prostitution control.

Far from condemning the injustice of the solicitation laws the recommendation was to make them stronger: the requirement of proving annoyance should be removed from the new statute. This would help the police clear the streets and protect the rights of the respectable. The committee also recommended that the disparate solicitation laws and various by-laws should be amalgamated and standardized in one act.

While it noted a great deal of opposition to these laws among the witnesses interviewed, the Wolfenden Committee took little account of them. As to the accusation that the laws relied on a double standard for men and women, it summoned a rather weak argument along the 'public nuisance' lines: the women were guilty of an offence because they were the most visible and nuisance-generating face of commercial sex, being the ones on the supply side of the equation. As to the charge that the term 'common prostitute' was stigmatizing and unjust, the report claimed that its removal would place 'innocent' women at risk of arrest. There was little attention paid to the criticism that if a law was not fair when applied to 'innocent' people, then it was fundamentally unjust in the first place.

Unlike the recommendations of the Street Offences Committee in 1929, the government did indeed act upon the Wolfenden Report. They repealed the laws against homosexuality. They repealed all three of the solicitation laws and replaced them with the Street Offences Act of 1959, which made it an offence for 'any common prostitute to loiter or solicit for the purposes of prostitution'. In keeping with the report's views, and the de facto situation developed by the criminal justice system, the annoyance clause was officially removed from the statute.

This change in law facilitated one of the most intensive crackdowns on street prostitution in UK history in the 1960s. Simultaneously, off-street prostitution businesses, like escort services and massage parlours, increased, as did incidences of violent attack, murder, and the involvement of exploitative third parties. History had already suggested this might happen. It may have been only a coincidence that three years after the Criminal Law Amendment Act of 1885 instigated a crusade against so-called brothel keepers, Jack the Ripper became known as the first serial murderer of prostitutes, but it is a symbolic coincidence. The women killed in 1888 were the first of many street prostitutes to fall victim to violence, abuse and serial murder worldwide over the course of the twentieth century.

The same laws that existed in 1824 and 1839 still exist in a form only slightly modified today. A woman known as a 'common prostitute' can still be arrested if she is out buying a pint of milk, and is introduced as a 'common prostitute' to the court before her trial begins, but today the policeman need not even pretend that this milk-buyer was bothering anyone. Despite vocal and long-standing protest, the discourse of prostitution as public nuisance and of prostitutes as legal pariahs has remained the ideology implicit in the UK's prostitution control strategy down to the present day.

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The present day: toleration, eradication, or justice?

There are many laws on the statute book which have remained unchanged for a very long time. But few laws have remained so static when every presumption underlying them has been challenged by immense changes in socio-cultural life. We have a far better understanding of the ways in which poverty, abuse and dislocation contribute to women's choices to prostitute themselves. The moral issues surrounding the commercial and promiscuous dimensions of the sexual have become a broad spectrum of grays. Most of all, the legal and social position of women has fundamentally changed since 1824, and we now live in a society where a double standard legally enshrined in words like 'common prostitute' seems, from a historical perspective, bizarrely antiquated.

The government, in 2006, has indeed resolved to remove the term 'common prostitute' from the statute, but has not viewed any other aspect of solicitation law with the same degree of critical awareness. Treating women on the street as 'prostitutes' in a de facto sense, for instance, by arresting them for loitering and being 'known to the police', means little street-level change is likely to follow from the repeal of this contentious term.

One more positive change suggested by the new policy is the government's decision to allow prostitutes to live and work together in groups of two or three. This move may provide women with some of the protection and security which they lost when the 1885 Criminal Law Amendment Act came into effect. Historical perspective suggests, however, that there may be some drawbacks. Firstly, the poorest and most vulnerable of women will still be forced to work on the street and hence be subject to the same pattern of repeated arrests and stigmatization. Secondly, while allowing women to work together has been characterized as a change made with the welfare of the women in mind, the simultaneous street crackdown will inevitably result in increased vulnerability for street prostitutes. Unless more money is invested in police action against pimps and traffickers, allowing a woman to work in premises may well result in providing these others with legal loopholes in which to continue their exploitation. The new brothel policy may therefore be more about getting prostitution out of sight and out of mind.

The media presented the choice that the Home Office and Parliament were facing as one between tolerating prostitution or eradicating it. But the history of the protest against the solicitation laws shows us that this is a false dichotomy. Providing legal justice and protection to prostitute women is not tantamount to tolerating prostitution. The critics of solicitation laws in the 1920s were adamant that prostitution was neither acceptable nor inevitable, but they did not believe that laws should be directed against prostitute women. Indeed, understanding prostitution as something negative, as a product of a world in which women are abused, objectified, and economically disadvantaged gives us all the more reason to demand that the government does not use laws to punish prostitutes.

Moreover, the history of the past one hundred and fifty years of prostitution-control strategies teaches us that with every attempt to make prostitution and its accessorized vices more illegal, women working as prostitutes have been increasingly victimized, stigmatized and forced into a commercial sex world in which third-party exploitation and abuse has continued to rise. A historical survey of the laws and their enforcement also gives us serious reason to worry about which policies will end up being most fully implemented: the protection and rehabilitation of women, or the street crackdown?

The government report took no account of the historical dimension of the laws upon which it pondered and which have gone largely unaltered for almost two centuries. Examining the extended history of a law and its enforcement seems to be one of the more reasonable ways to assess whether or not it is just, effective and beneficial. The tradition of UK prostitution law and any further reiteration of it, does not pass this kind of historical test.

October 2006

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Further reading

  • Frank Mort, Dangerous Sexualities: Medico-Moral Politics in England since 1830 (2nd ed. London: Routledge, 2000).
  • Stefan Petrow, Policing Morals: The Metropolitan Police and the Home Office, 1870-1914 (Oxford: Clarendon Press, 1994).
  • Helen J. Self, Prostitution, Women and the Misuse of the Law: The Fallen Daughters of Eve (London: Frank Cass, 2003).
  • Judith Walkowitz, Prostitution and Victorian Society: Women, Class and the State (Cambridge: Cambridge University Press, 1980).

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About the author

Julia Laite is a Commonwealth Scholar and doctoral candidate at St. Edmund's College, Cambridge. She is currently researching the history of feminism, prostitution and prostitution control in late-nineteenth and early-twentieth century England. julia.laite@gmail.com.

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