CHAPTER IV

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.