A Feminist Critique of the Prostitution Laws - Essay Example

Women and law presentation briefing paper Introduction Firstly I shall put forth the question/problem across to the audience As my paper involves answering the question as to the offence, if any committed by Topaz I shall begin with the law on prostitution in the United Kingdom. I would also explore the historical and jurisprudential aspect of this topic and incorporate the feminist ideologies involved in the same Legislations Covered Street Offences Act, 1959 Sexual Offences Act 1956 Sexual Offences Act 2003 Case Law on prostitution R. v. De Munck (1918) 82 J.P.160 CCA – attempted to define “common prostitute” R. v. Webb [1964] 1 QB 357 – upheld the earlier decision while stating that there is no distinction between active and passive role of woman R. v. Morris-Lowe [1985] 1 ALL.E.R. 400 – restricted the definition Regina v. McFarlane (1993) – the term “prostitution” defined for the first time Critique Is what Topaz did an offence under the prevailing law? Is the law on this subject just, fair and reasonable? Reforms and Conclusions Has the legislature helped in the reforms or has it fallen short of its own expectations. Question: Topaz is a law student who is struggling to pay her rent and tuition fees. Her fellow students, Cassandra and Neil invite her to live with them rent free if she agrees to join their ‘business’. Topaz, in desperation, agrees. This ‘business’ is a secret brothel operating from their flat. It is ‘managed’ by their landlady, Rose. After a month Cassandra and Neil tell Topaz to leave as she is failing to earn money. Topaz is now forced to operate as a prostitute on the corner of Boulsdon Street. What possible offences is Topaz committing? And what feminist issues surround these possible offences? Answer: The current laws in the United Kingdom do not criminalize prostitution though certain activities connected with prostitution are criminal offences. Topaz is not committing any offence just by being a prostitute. However, section 1(1) of the Street Offences Act, 1959 (as amended by Sexual Offences Act 2003, section 56, schedule 1, paragraph 2) states that “it shall be an offence for a common prostitute whether male or female to loiter or solicit in a street or public place for the purpose of prostitution”. To understand whether Topaz’s activities qualify as an offence under Section 1(1) of the Street Offences Act, 1959 it is first essential to analyse whether Topaz qualifies as a “common prostitute”. The meaning of “Common Prostitute” The term “common prostitute” has not been defined by statute though it has been part of statute law since 1824. The term “common” was criticised during the debates on the Street Offences Bill, which became the Street Offences Act 1959. The Criminal Law Revision Committee Working Paper on “Offences relating to Prostitution and allied offences” published in December 1982 stated, inter alia, “the word ‘common’ should be removed from the expression, ‘common prostitute’”. In R. v. De Munck (1918) 82 J.P.160 CCA, the Court held that, “the term ‘common prostitute’ is not limited so as to mean only one who permits acts of lewdness with all and sundry, or with such as have her, when such acts are in the nature of ordinary sexual connection. We are of the opinion that prostitution is proved if it is shown that a woman offers her body commonly for lewdness for payment in return.” The decision was cited with approval by the same court in R. v. Webb [1964] 1 QB 357 where the proprietor of a massage establishment was found guilty of procuring and attempting to procure masseuses to become common prostitutes. The court followed De Munck and dismissed a contention that the definition should be confined to cases where a woman takes a passive rather than an active role in the lewd activities. In R. v. Morris-Lowe [1985] 1 ALL.E.R. 400, the court held that a “common prostitute was any woman who offered herself commonly for lewdness for reward. The court said the performance by a woman of a single act of lewdness with a man on one occasion for reward did not make her a “common” prostitute. That had to mean someone who was prepared for reward to engage in acts of lewdness with all and sundry or with anyone who might hire her for that purpose. In Regina v. McFarlane (1993) The Times, 20 December, Court of Appeal the word "prostitution" was judicially defined for the first time. The Court of Appeal dismissed an appeal by a man convicted of living on the earnings of prostitution and determined that, in considering the mischief of harassment and nuisance to members of the public on the streets, the distinction between “a clipper” and “a hooker” was immaterial. The issue on the appeal was whether, as a matter of law, the judge was correct to rule and direct the jury that a woman who offered her sexual services and took the money and failed to provide the services was engaged in prostitution within Section 30 of the Sexual Offences Act, 1956 Act. The defence submitted that the mischief against which section 30 was aimed was the exploitation of women. Here the appellant was not exploiting Miss Joseph sexually, only dishonestly. Lord Taylor held that: “…[T]he distinction between ‘clippers’ and ‘hookers’ is immaterial… For a man to live off the earnings of a woman who offers sexual services, takes the money and then reneges on the offer, if she does, is in our view to live off the earnings of prostitution, or, as it used to be termed, immoral earnings. Indeed, most people would consider such earnings doubly immoral.”(at 288). Presently, a “common prostitute” is a woman (and now also a man: Sexual Offences Act 2003, section 56 and Schedule 1), who has been cautioned on two previous occasions for loitering or soliciting. On the third and subsequent occasions of loitering or soliciting, the prostitute will be labeled as “common” and prosecuted in the magistrates’ court. Thus, the court will be fully aware of the defendant’s previous criminal record: the defendant would not be before the court on these charges if they had not been cautioned twice before. Therefore, it is only after two warnings that a prostitute is prosecuted. In the event that Topaz has been cautioned on two previous occasions for loitering or soliciting for the purpose of prostitution, Topaz shall be punishable for an offence under Section 1(1) of the Street Offences Act, 1959. Further, Section 32 of the Sexual Offences Act 1956, which made an offence for a man to persistently solicit or importune in a public place for an immoral purpose, is now an offence which can be committed by a woman or a man (Sexual Offences Act 2003, section 56 and Schedule 1). Therefore, even if she has not been cautioned on two previous occasions, if Topaz while operating as a prostitute persistently solicits any person for prostitution (which is considered immoral), she shall be committing an offence under Section 32 of the Sexual Offences Act, 1956. It may be relevant to note that the landlady Rose, in keeping and managing the secret brothel is also liable for several offences. Under sections 33 of the Sexual Offences Act 1956 and 33A (as inserted by the Sexual Offences Act 2003) it is an offence to keep a brothel. “Keeping” includes managing or assisting in the management of the brothel. Further, Cassandra and Neil have committed an offence under Section 52 of the Sexual Offences Act 2003, which makes it an offence for anyone to cause or incite a person to become a prostitute in any part of the world. All three, Cassandra, Neil and Rose have committed an offence under Section 53 of the Sexual Offences Act, 2003 which makes it an offence to control a prostitute for financial gain. Feminist Issues Involved To understand the feminist issues involved and the criminalizing of certain related offences while leaving aside the act of prostitution, we need to understand the background of the laws that govern prostitution. I shall be analyzing a few aspects of the current laws governing prostitution in light of this case and the dichotomous legal attitude concerning men and women in formulation of these laws. Historical Perspective on the laws relating to Prostitution It has been argued at various points of time that prostitution has not been made illegal because men will not allow it to be so. The oldest profession has not been created with the benefit of women in mind and a study of the lawmakers’ rationale explains why this crime against women can be still perpetuated lawfully. The earliest English regulations regarding prostitution was concerned more with issues of health among the male populace than any other issue of morality or sexuality and the focus, unfortunately, was on making available women free from venereal diseases. In the nineteenth century the new sensibilities of public health and puritan morality defined a new legal attitude towards women offering sexual services in exchange of payment. While society condemned the women for providing the services it maintained a unique double standard by not condemning the men who availed of the prostitute women. After all, this was considered to be the expected behaviour of men who needed an outlet for their sexual energies and this had the benefit of protecting the virtues of the upper and middle class women. If the sale of sex simpliciter were a crime then a prostitute’s transaction will involve two criminals, the prostitute and the client which however, was never the case. Throughout most discussions related to prostitution the male client is almost invisible since purchase of sex is seen as only a natural activity and hence not worthy of mentioning. This view can be found in a Royal Commission Report of 1871, which declared there was “no comparison to be made between prostitutes and the men who consort with them. With one sex, the offence is a matter of gain; with the other, it is an irregular indulgence of a natural impulse”. Nineteenth century saw laws like the Vagrancy Act 1824, Town Police Clauses Act 1847, and Metropolitan Police Act 1839 being enacted which covered prostitution in their ambits but these Acts were enacted with a view towards controlling public nuisance. By virtue of these Acts the police and the magistrates had the power to deal with common prostitutes behaving in a riotous and indecent manner. The law changed radically with the Contagious Diseases Prevention Act 1864. In total there would be three Contagious Diseases Acts (1864, 1866 and 1869). These Acts operated for nearly 20 years until they were suspended in 1883 and finally repealed in 1886. The central idea behind them was to keep the military and navy free of venereal diseases by keeping women “clean” for soldiers and sailors. Military men below a certain rank were not allowed to marry and therefore prostitutes were seen as necessary for these men. Generally, society as a whole saw prostitution as: necessary to meet men’s sexual needs a way of prolonging marriages ensuring that property was passed without problem because there were no broken inheritance lines. Although the Acts were eventually repealed, it is worrying that in times of war this type of legislation was recreated. For example in 1918, Regulation 40d of the Defence of the Realm Act empowered the authorities to submit a prostitute to medical examination if accused by any member of the armed forces of infecting him with venereal disease. It was repealed within a year of its adoption because of its openness to abuse. Again in 1942, the Ministry of Health introduced regulation 33b which provided that in the event of two venereal disease patients naming the same individual as the source of infection, then that individual should be ordered to undergo examination and submit to treatment until free from disease. Failure to do so could result in a fine or imprisonment. Till now we see two trends of lawmakers in formulating the laws related to prostitution: (i) to allow prostitution provided it stays out of sight to the maximum extent possible to protect public morality; and (ii) to provide a safe and clean supply of women for men. When the law is created with such purposes in mind, are we surprised at the commodification of women which follows naturally from any attempt at enforcing of the laws. Unfortunately, not making the act of prostitution illegal did not stem from any kind of concern for the women but only to save men from violating a law. The term “common prostitute” is used in the Contagious Diseases Act where a special plainclothes policeman can identify a prostitute as a common prostitute and subject her to fortnightly internal examination. On any venereal disease being found on her she can be interned in a certified lock hospital for up to nine months. A Feminist Critique of the Prostitution Laws Based on the historical perspective, when we look back at both the first set of Vagrancy Acts and the Contagious Diseases Acts, we understand the reason of punishing the women with clarity. On the one hand she can be involved in riotous behaviour thereby disturbing the peace of the society or she can be a carrier of venereal diseases thereby endangering the lives of her male clients. The Street Offences Act, 1959 is just a continuation of this trend. Section 1 Street Offences Act 1959 (as amended by Sexual Offences Act 2003, section 56, schedule 1, paragraph 2) provides that: It shall be an offence for a common prostitute whether male or female to loiter or solicit in a street or public place for the purpose of prostitution. With law after law the lawmakers have provided for nothing but facilitated in brushing the main issue of abuse of women under the carpet. The same laws that existed in 1824 and 1839 still exist in a form only slightly modified today. 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 UKs prostitution control strategy down to the present day. 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. 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 prostitution. An important change in the new Home Office approach was the decision to allow prostitutes to work together in shared premises. This move may provide women with some of the protection and security which they lost when the Criminal Law Amendment Act, 1885 came into effect and imposed a hefty fine or a maximum of three-months imprisonment on 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. However, 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, 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 other exploiters 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. But, the question is, does this solve the problem? Bibliography 1. Bourne, J. and Derry, C., Women and Law, Old Bailey Press, (London, 2005) 2. Gangoli, G. and Westmarland, N., eds., International Approaches to Prostitution, The Policy Press (London, 2006) 3. Home Office, Paying the Price, July 2004, Available at: http://www.homeoffice.gov.uk/documents/paying_the_price.pdf?view=Binary 4. Home Office, A Coordinated Prostitution Strategy and a Summary of Responses to Paying the Price, January, 2006, Available at: http://www.homeoffice.gov.uk /documents/ cons-paying-the-price/ProstitutionStrategy.pdf?view=Binary 5. Laite, J., Paying the Price Again: Prostitution Policy in Historical Perspective, History & Policy, Available at: http://www.historyandpolicy.org/papers/policy-paper-46.html 6. Nicolson, D. and Bibbings, L., eds., Feminist Perspectives on Criminal Law, Routlege Cavendish (London, 2000) 7. Outshoorn, J, ed., The Politics of Prostitution, Cambridge University Press, (Cambridge, 2004) 8. Self, H.J. Prostitution, Women and the Misuse of the Law: The Fallen Daughters of Eve, Frank Cass (London, 2003). 9. Walkowitz, J.R., Prostitution and Victorian Society, Cambridge University Press, (Cambridge, 1991) Read More