The Legal Response

Turning once again to Bullough's (1977) list of publications (Table 1.1) we note the huge amount of literature on the legal aspect of prostitution. Two reasons probably account for this: a high public concern for the control of prostitution; and, prostitution's long history of fluctuating legalities perpetuates a high profile interest among legal researchers. The assumptions at the heart of both these responses are that if prostitution is not suppressed by law the moral fibre and the sexual mores of the community will be threatened, not to mention the inevitable damage it is likely to do to the family institution. Lord Devlin had correctly assessed the position of the law when he argued that its responsibility is to uphold the morality of the majority. In western legislative systems prostitution is assumed to disrupt the moral order in three important areas. The first is that it is the most blatant form of promiscuity. The second is that it indulges in extra-marital sexual relations. The third is that its commercial nature involves sex without love. However, promiscuity, in recent years, has become acceptable in some sections of society, and prostitution no longer appears to challenge the sexual code so much. Whilst promiscuous individuals may go through the motions of a brief love affair with each sexual liaison, lust not love is the motivating factor in many, if not most, of today's sexual relations. In this respect it is little different to sex in prostitution. With regard to extra-marital relations, most people would probably still find this objectionable. But, most wives would probably rather their husbands involve themselves with prostitutes than lovers. A Cleo survey (May 1989) indicated that nearly 13 per cent of women would not object to their husbands/boyfriends visiting a prostitute at least once. Interestingly, almost a fifth of the women over 25 found no objection to this. Perhaps traditional attitudes are changing due to an increasing acceptance of prostitution.

If traditional morality is no longer an appropriate social critic as a source of legislative change, there still remains other reactions to prostitution which have in the past been successful in influencing legislative changes. Opponents of prostitution argue that it spreads diseases, that it entraps innocent young women, and that it should be confined to certain areas. All of these are loaded with thinly -disguised moral values convinced that prostitution is intrinsically evil as a direct cause of sexually transmissible diseases and "white slavery" and it should be placed out of harm's way (if not entirely eradicated). But, as we shall see, prostitution is one of the least important causes of diseases, according to the medical evidence this century. Legislation to deal with the wilful spread of disease by anyone exists in most western jurisdictions. While "white slavery" usually involves the traffic of women for prostitution, it is not the only reason for this heinous crime. In some non-western countries it serves the harem or purdah systems. In other contexts organised trafficking is often the only way poor third-world women can enter western countries for the purposes of voluntary prostitution and marriage. Where trafficking involves the involuntary movement of women, of course, legislation should be enacted against the traffickers, but not against prostitution, since it is not the product of trafficking any more than trafficking is the product of prostitution. The issue of areal confinement is a complex one and will be dealt with later in the context of environmental planning. But to confine prostitution to designated "red light" areas is yet another example of moralism of the "necessary evil" kind. All of these issues have a long history in the west, and it is to this we now turn.

Western laws on prostitution have three major sources: Mosaic, Ancient Roman, and Germanic laws. Apart from those Mosaic laws on p. 18 of this book, the Deuteronomy law 23:17-18 is at the heart of Judaism:

There shall be no cult prostitute of the daughters of Israel... You shall not bring the hire of a harlot... into the house of the Lord your God in payment for any vow.

This was clearly reactionary to polytheism, with its sacred prostitution, the very antithesis of Judaism (Henriques 1962, pp. 364-6). It also reflects Hebrew paranoia for maintaining cultural purity after centuries of captivity in Egypt. Their fanatical devotion to their divine deliverer made them ideologically different to their more powerful neighbours in nearly every respect. The laws of Ancient Israel were as much a reinforcement of this political and cultural independence as a reaction to the cults of Near Eastern sacred prostitution.

Certainly the Mosaic laws provided the basis for early Christianity's anti-sexual attitudes. But in practical terms prostitution flourished as much in Israel as it did in any other nation of the Near East, as references to it in the Bible testify (for example, Ezekiel 16: 26 and 27, 23:8; 1 Kings 22:38; Isaiah 23:16; Hosea 4:15 to name a few). The Christians were aware of this, and since most of them were more familiar with Roman laws and attitudes than those of the Israelites it seemed appropriate to look at Lex Romanicus for inspiration. In theory and practice the Romans were more pragmatic than the Israelites, and it is this pragmatism that led to the Augustinian "necessary evil" approach to prostitution.

The Romans were more interested in regulating prostitution, not eradicating it, in spite of their general contempt for women who became prostitutes. However, the idea of regulation by state control occurred first to the 6th century B.C. King of Athens, Solon, who established state controlled brothels, or dicteria. The Greeks had many classes of prostitutes: temple harlots, the dicteriades or inmates of the state brothels, and, as already noted (pp 15 and 16), auletrides and hetairai. The Romans adopted the idea of state- controlled brothels, or lupinar (house of she-wolves). But, not until the time of the Emperor Augustus did a set of codes govern the behaviour, restrictions and privileges of prostitutes. As we have seen, Roman prostitutes were forbidden to cover their faces in public, but also the meretrix, or state brothel inmates, were forbidden to wear the colour purple, to wear shoes, or to put their hair in fillets, in public, while they were required to dye their hair red or yellow (Simons 1975, p. 40).

Roman prostitutes were forbidden by law to own property. Thus they were distinguished from other women, since aristocratic women could and did own property. But any aristocrat found offering sex for money was banished. Roman citizen men were forbidden from marrying a brothel "madam", and senators were not allowed to marry any woman who had once been a prostitute. Yet, such a prominent man as the Emperor Claudius married Messalina, who had a reputation for once being a temple harlot. Also, the Plutarchs assure us, it appeared not to have been a public scandal for a prominent man to enter a lupinar (Bullough 1964, p. 53). So popular were these lupinar that they were established wherever the Roman legions marched (Simons 1975, p. 45). Thus, the brothel, like the aqueduct, the sewerage system, the road system, and the Latin alphabet, was a heritage of Roman conquest and colonisation.

Under such a system, which seems harsh on prostitutes, state workers had a measure of protection from the state:

Once a woman was registered [as a prostitute] she had certain legal protection. For example, if a man refused to pay his fee at the appropriate time the prostitute could complain to the aedile [public building officer]: if the case was proven then the aedile could force the client to pay the woman her due (Simons 1975, p. 39).

In Ancient Germania a very different process was at work. The various German tribes, who fiercely opposed adultery, were not kindly disposed towards prostitutes. The Visigoths gave prostitutes 300 lashes and cut off their hair. Recalcitrant women who persisted with prostitution were sold into slavery. Judges who accepted bribes from prostitutes were given 100 lashes. Prostitution was considered such a heinous crime and a woman accused of it so ruined, that the Lombards dealt harshly with anyone falsely accusing a woman of it (Bullough 1982, p. 36). While the early Christians were content to adopt the principles of Lex Romanicus, later, with the conversions of Germanic peoples to Christianity, wherever they went in Europe they took their fierce laws on prostitution with them. The Saxons introduced them to England, and when Charlemagne became Holy Roman Emperor in 800 A.D. he enforced the Frankish law of whipping and exiling prostitutes by excommunication in Christendom.

Medieval canonical lawyers, however, felt the Germanic laws too harsh. They were also uninspired by the Scriptural laws, since these were too impractical. So, once more Christian states and the Church looked to the laws of Ancient Rome. These seemed most practical for the growth of town life in the Middle Ages. As with the Roman laws, so Medieval prostitutes were not entitled to own property nor bring evidence to court in their own defence. One major concern for the Church lawyers was extracting tax from the prostitute without accepting the "wages of sin". Thomas Aquinas offered a solution: "The harlot must be required to pay the tithe from her earnings-but the Church might not accept payment until she reformed." (Brundage 1976, p. 838). But the canonists slipped out of this paradox by leaving the responsibility for tax collection to town authorities.

As towns grew in size, and space became a premium, authorities sought to either confine prostitution or remove it from the city. Thus, in England, prostitution in Sandwich was confined to a section of the town, while in London it was ordered outside the city walls (Bullough 1964, p. 1 13). In Valencia prostitutes were confined to a brothel quarter, with armed guards enforcing this law. In Venice in 1446 a law was passed forbidding prostitutes to eat, drink or sleep in taverns (Henriques 1963, p. 52). By the late Middle Ages, prostitutes were often forced to comply with dress regulation, in order for them to be distinguished at a glance. For example, in Leipzig they had to wear a yellow cap with blue trimmings; in Vienna a yellow handkerchief had to be pinned at the shoulder; in Augsburgh they had to wear a green sash; in Zurich and Beme it was a red cap; in Bergamo a yellow one; in Parma it was white; in Milano black; and so on (Henriques 1963, p. 44). Across Italy a common law allowed any citizen to strip a prostitute naked in the street if she was "improperly" dressed (Henriques 1963, p. 45).

The Reformation brought profound changes to the laws on prostitution. The toleration days were over as reformists turned to the old Germanic laws to enforce their notions of moral order. An Augustinian philosophy satisfied the legal reformers in Lutheran states. St Augustine had taught that sex was an unclean pastime which resulted in a loss of bodily control. The reformists felt that this loss of bodily control was a fundamental problem in the traditional Church, so they reversed the argument to indicate that losing bodily control invites carnal lust. For Reformation lawyers then, self -restraint was essential for good social order. Much later, the 18th century philosopher, Immanuel Kant (1780), would extend this argument in his notion of sexual desire objectifying the object of love.

Once the reformists were able to reconcile traditional notions of extramarital romantic love with the medieval custom of arranged marriage by introducing the ideology of marriage as a culmination of romantic love, then legislating against sex beyond marriage was an easier matter. This is at the core of prohibitionist laws on prostitution to the present day. Calvinism, which spread much more widely than the more moderate Lutheran Church, introduced such ideas to Scandinavia, Scotland, and England, and, in turn, was taken to America by the Puritans, to become the basis of morals even to this day in the United States. Morality was not the only concern in the Reformation treatment of prostitution. The period of Church reform coincided with the spread of syphilis, and this provided the reformists with extra fuel for prohibiting prostitution Oust as the same argument prevails among the more conservative elements of the 20th century). Prostitutes were blamed for its spread, and many cities simply passed laws banning prostitution altogether. In England in 1546 Henry VIII gave into pressure by ordering all brothels closed (Henriques 1963, p. 61). Curiously though, while the rest of Europe responded to syphilis with anti-prostitution legislation, Spain, at the height of its inquisitional power, retained a tolerant attitude on prostitution (Sanger 1858-1937, p. 169). In the port of Seville, for instance, a hotbed of syphilis (and some might argue was a major point of entry for the disease, if they concede to the theory that syphilis was a native American disease brought to the Old World by Spaniards returning from the New World), town authorities ordered a medical surveillance of the city's only brothel in 1570 but did not consider closing the place (Perry 1985, pp. 148-9).

For the next two centuries prostitution legislation wavered back and forth but gradually the laws were relaxed and fell into disuse. The English Parliament, under Puritan influence, reaffirmed its previous position on prostitution when it retained ordinances on brothel prohibition in 1626. But the situation had relaxed to such a degree a century later that Bernard Manderville was prompted to write a paper, 'A Modest Defence of Publick Stewes' in 1724 explaining the need for regulation of prostitution:

Unregulated prostitution had led to an increase in illegitimate births, alienated affections of wives and husbands, tempted people to live beyond their incomes, debauched married women, warped virtue and ruined young virgins (Bullough 1964, p. 161).

England had remained more uncomfortable with prostitution than the Continent, where brothels became as much a part of community life as taverns, theatres and sporting arenas. Indeed, prostitutes also solicited business in these social gatherings. Meanwhile, England passed a Disorderly Houses Act in 1751 and a Brothel Act 1755, which, together with the common law on brothel keeping, kept houses of prostitution to a minimum by prosecuting brothel owners/landlords.

It was the Napoleonic Wars which wrought changes to prostitution on the European continent. Napoleon's Grand Army was ravaged with gonorrhoea and syphilis, and once again prostitutes were held to blame. He therefore abolished camp following and forced medical inspections of brothels in towns where his army billeted. Finally, the Code Napoleon of 1810 introduced a system of brothel licensing across Europe. Only Berlin refused to comply, finally passing laws against brothels which forced the closure of all its prostitution houses in 1844. However, an outbreak of syphilis in the years following this led to a reversal in 1851, with the re-opened brothels under strict regulation and health surveillance (Sanger 1858-1937, p. 456).

While the licensing system became the established method of dealing with prostitution on Europe's mainland for the next century and a half, England adopted another measure, which would have far--reaching consequences across the Empire and the Commonwealth well into this century. The first important legislation in the 19th century were the Contagious Diseases Acts introduced in 1864 to protect Her Majesty's Naval and Military personnel overseas. No one seemed to consider that it might have been this same personnel carrying venereal diseases with them, rather than prostitutes in the countries of occupation passing the infection onto them. A series of amendments to the Acts enabled authorities simply to quarantine any woman in a lock hospital (medical gaol) on someone else's suspicion that she was infected. It always involved confining women and most often prostitutes. Feminists of the time rightly saw it as highly discriminatory, and finally the Acts were repealed in 1886 following a furious campaign led by Josephine Butler. But by then the British Government had other legal means of dealing with prostitutes.

As we have seen, the extreme fight wing of the Evangelist Movement lobbied for, and successfully achieved, prohibition legislation in England in 1885. The Criminal Law Amendment Act of 1885 was the first piece of legislation to make a frontal attack on the existence of prostitution since the 17th century. In the years following, it effectively closed not only structured brothels but the little rooms where street prostitutes often took their clients in all major English cities; it broke down the existing structure of prostitution, which was female-dominated and independent, and drove it into the hands of male pimps and other entrepreneurs; it alienated prostitutes from the working-class female population through a legal stigma which clearly demarked the identity of prostitutes from other women; and, it raised the age of consent from 13 to 16 for girls, which enabled greater police involvement in private family affairs and made juveniles a particular legal entity foreshadowing the emotional response to "white slavery" (see Walkowitz 1980).

In the United States of America, a similar set of circumstances set wheels in motion leading to repressive legislation, though a little later than Britain. Once again feminists collaborated with social purists to usher in this legislation. But while feminists were fighting against male sexual hegemony, the moralists agitated against vice per se. Slavery, alcoholism and prostitution became the three major issues in American social purity politics in the 19th century. Slavery, of course, ceased with the Civil War, but prostitution continued to flourish until the turn of the century, though usually confined to specified "red light" (or "tenderloin") districts in the cities. St Louis was the only city to introduce regulation, apart from the unwritten code of environmental control, which was compulsory medical surveillance of prostitutes and brothels in 1870. But the pressure mounted in the 20th century, especially following hysteria over the assumed "white slavery" of Europe and Asia. The Federal Mann Act resulted in 1910, restricting the movement of single women not just into and out of the country but across State borders. This seemed to herald in a wave of state legislation amendments which effectively outlawed prostitution across the country, including such notable instances as the introduction of vice laws in New York following the publication of George Kneeland's (1913) investigative report and the closure of New Orleans' Storyville district in 1917 after a concern for the health of naval personnel. The upshot of the American anti-prostitution legislation was even more severe than in England, since prostitution, once a female-dominated industry in America, fell into the hands of crime organisations (see Winick & Kinsie 1971, p. 201ff).

The criminalisation of prostitution in Europe is more closely linked with the international concerns for "white slavery". In 1904 the International Agreement for the suppression of the "White Slave Traffic" was drawn up between 13 European countries in Paris and this entailed co-operation and corresponding legislation to suppress trafficking of women (in 19 1 0 Brazil was included in the agreement). The League of Nations took up the issue as a major agenda item in a series of assemblies after 1921. Thirty-three countries, including nearly all of Europe as well as Japan, China and India, at the initial conference agreed to co-operate in investigating the extent of the problem and then introduce inter-locking legislation. Only the United States of America declined to take part, since it argued that legislation should be an individual nation's concern dealing with localised situations only (see Bullough 1964, p. 179ff). The United Nations continued where the previous international conferences had left off. In its 4th session in May 1949 a "Draft Convention for the Suppression of the Traffic in Persons and Exploitation of the Prostitution of Others" was drawn up with intentions of abolishing the traffic of women by individual co-operative legislation. In 1958, 24 countries ratified this agreement. Among those countries to decline participation were America and Australia, once again on the basis that legislation should be an individual national conscience, not international. Bullough sums up the sentiment of the international body:

This international action was accompanied by a decrease in the traffic, particularly in Europe, but also between Europe and South America. This decrease was due not only to greater international vigilance, but to the abolition of licensed brothels in certain countries... With the decrease of licensed brothels there was a corresponding decline in the traffic. Prostitution continued, but the number of countries in which the government licensed or registered prostitutes has steadily fallen (Bullough 1964, p. 17).

The pressure to cease licensing prostitution because it was believed to be responsible for the traffic of women resulted in wholesale and worldwide reverses. Licensing ceased and was replaced with various criminal statutes, for example, in Argentina in 1938, France in 1946, Japan in 1955, Italy in 1958, Thailand in 1960, Peru in 1982. Other jurisdictions, such as West Germany, Sweden and the Netherlands sought alternate forms of legislation, such as environmental regulation (or "legalisation") or legal reforms (or "decriminalisation").

In this historic review of the laws on prostitution in western societies,, the ebb and flow of regulation had covered widely diversified legal systems of control, each of which has played its role criminalising, regulating and tolerating prostitutes. In any understanding of the current legal contexts, it is essential that a broad knowledge of this historic development exists. It is especially important that the reader is aware that the present worldwide trend of prohibiting prostitution has its direct antecedence in 19th century morals and the changes of law in response to that. It should be noted also that this has had a global impact, even upon non-Christian Third World countries.8

In any logical discourse on law and in view of the many controversies on prostitution and legal entity, it is important to discuss the issue of rights. Human rights have a long history among society's highest ideals, through Locke, Rousseau, Kant and Mill to Bertrand Russell. Human rights frame the constitution of many nations, the most notable being the American Bill of Rights, which incorporates at least three fundamental aspects which concern us here: right to free speech; right to privacy; right to equality by law. The Australian Constitution does not include a 'Bill of Rights' but the principle of equality of justice prevails as an essential judicial doctrine.[9]

Yale legal academic Ronald Dworkin (1978), in his so-called "rights thesis", argues that individual human rights should be considered a logical and natural process in any democracy. If, for example, we consider religious freedom to be the right of any individual, then the state has no right to prevent an ethnic or sectarian minority setting up its church regardless of public opinion.

In a discussion on Dworkin's "rights thesis", New York Professor of Law, David Richards, adds "two crucial normative assumptions" to the essential ingredients of human rights. The first of these is autonomy, which

gives to persons the capacity to call their lives their own. The development of these capacities for separation and individuation is, from the earliest life of the infant, the central development task of becoming a person (Richards L979, p. 1225).

The second of these assumptions is equality:

Because autonomy is so fundamental to the concept of what it is to be a person and because all are equal in their possession of it, all persons are entitled to equal concern and respect, as persons (Richards 1979).

Richards predicates that these constitute the very notion of human rights. The law, as an instrument of people's rights, should then imply the enforcement of these rights, as defined by Dworkin and Richards. Since many national constitutions either do not recognise these rights or fail to enforce them under constitutional law, we should turn to a higher authority which enshrines such notions in its written charter. The impartial body of the United Nations is the highest authority on the planet. Article 29 of its Declaration of Human Rights reads:

In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others (United Nations Doc. A/810, 1948).

This remains one of humankind's highest ideological achievements within the greatest international forum yet conceived.

The argument that prostitution within the law is a human right that challenges its regulation by law can be supported best by viewing it within the following paradigms:

• Prostitution as an infringement on the rights of others.
• Prostitution as an infringement of public morals.
• Prostitution as a right of employment.
• Prostitution as a right of individual choice and personal freedom.

The first paradigm can be approached with a response to an article by criminologist David Sternberg (1983, pp. 77-107), whose functional analysis of prostitution includes nearly every cliché of the prostitute as a victimiser. He argues, for example, that wives of her clients are victimised because men spend money on her instead of them. Firstly, of course, most husbands have "pocket money" which they may spend as they see fit. Secondly, the same argument might be extended to include bartenders who sell drinks to these husbands, bookies who accept racing bets from them, and storekeepers who sell them items for their hobbies (such as fishing, sailing and other sports). Are the wives of these men also being victimised? Another example given by Sternberg are clients who are robbed by prostitutes. While this occasionally occurs, true professionals among the ranks of prostitutes would not contemplate robbery, since they endeavour to encourage their clients to return in the future. In any case, many more prostitutes are robbed by their clients than the other way around.

Perhaps Sternberg's most legitimate example is noisy street prostitution in residential areas which infringe on a community's right to quiet and harmony in their neighbourhood. This may not apply to all street prostitution, since some is conducted with a great deal of discretion, and it doesn't apply to prostitution per se, most of which is indoors and clandestine. It would be unjust to frame criminalising legislation for all prostitutes on the basis of a few rowdy individuals and their clients. These can and should be dealt with in existing public offence laws, without the necessity of introducing special laws on soliciting or prostitution per se.

Most claims to prostitution infringing on the rights of others are individual and often isolated instances. Prostitution is a business of discretion and anonymity, in which both prostitutes and their clients wish to conduct this business with the utmost quiet and undue attention. Thus, infringing on the rights of others is the last consideration. In fact, most street noise in an area of street prostitution is caused by rowdy passersby that neither the prostitutes nor their genuine clients want either. Even instances where non-prostitute women living in an area frequented by street prostitutes are bothered by male cruisers are not so much a problem of prostitution as of general male harassment of women. Therefore, since most of the problems often associated with prostitution are not caused by prostitutes themselves, to punish these women legally is in itself an infringement of those women's human rights. The legislators should look to increase laws and penalties to curb the obnoxious behaviour of street offenders who are responsible for these problems; and this would be of benefit to prostitutes as well as residents.

In the second paradigm we are back into the circulatory argument of jurist Lord Devlin (see p. 28-9), in which he defends the law as a protector of the very morals from which it was founded. To persist with prostitution as being immoral, one should also insist that promiscuity and masturbation are immoral and deserving similar legal punishment. In today's sexual climate this now seems quite ridiculous. Public morals today, therefore, probably have a very different meaning to that of Devlin's time, 30 years ago. So I will look to morals and ethics which may appeal to a pluralist community of many religious ideologies. Perhaps one which most people would agree to is a moral that insists on consideration and respect for others (which also accords very much with Christ's teachings). Once again, the only area of prostitution which might infringe on this universal moral is the minority area of street prostitution. Public polls would seem to confirm this. In polls conducted by the Sydney Morning Herald (13 May 1985) and Cleo (May 1989), whilst most people agreed to "legalisation" the majority were opposed to "legalising" street prostitution. Similar results came from a survey by The Canberra Times ( 19 July 1989) with 54 per cent of 651 participants agreeing to "legalisation", 40 per cent against it and 6 per cent non-committal. As with the Sydney Morning Herald outcome more men (58 per cent) than women (49 per cent) favoured "legalisation"; interestingly, like the Cleo survey the older respondents were more favourable to it than the younger.

To return to Lord Devlin and his major critic, Ronald Dworkin, it becomes difficult to define morality clearly enough for the entire community. To accept Devlin's narrow precepts is to assume a strict Christian fundamentalist view as the consensus, which Dworkin argues is far from the case. Then again, Dworkin (1978, pp. 253-4) objects to the broader definition of Devlin, that "the common morality of a society at any time is a blend of custom and convention, of reason and feeling, of experience and prejudice", because to legislate on the basis of prejudice is in itself to resort to an immorality.

For the third paradigm one might not go beyond the United Nations' "Universal Declaration of Human Rights", Article 23, which provides everyone with the right to work and seek employment without obstruction (United Nations Doc. A/810, 1948). This is a fundamental human right, and if we return to the first Section in this Chapter we can see the extent to which prostitutes consider their occupation to be work. Sternberg, however, questions the validity of prostitution as work, and therefore the benefit of rights to work should not be applicable to prostitutes. He refers to commercial sex as "pseudowork", involving few skills and certainly none which other women do not possess. He refers to American prostitutes' preference for fellatio over coitus as an example of seeking the easiest labour, and that prostitution is more an experience of excitement than of a "legitimate occupation and profession" (Sternberg 1983, pp. 94-7). Of course, it would be doubtful if Sternberg would criticise stuntmen, deep sea divers and racing car drivers, who seek excitement in their work. Nor would he be critical of the well-paid, high-powered executive for making his job easier with extra staff.

The fact is that prostitution requires the exchange of a service for labour, which is the most fundamental element of any employment. That point is too often missed because, as already stated most people view sex as leisure. When defending the feminists' position on prostitution, Sternberg (1983, pp. 95 and 97) refers to prostitution as the "most blatant degradation of women", while earlier he refers to what he calls "legitimate" work as a "degrading and alienating economic system". Perhaps he strikes the truth of the matter when he says: "People have a "gut feeling" that prostitutes are being inordinately well paid for activities which are not 'really' work." One might just as well argue that chefs are "inordinately well paid" for not "really" working, since many housewives and bachelors also do cuisine cooking. In any case, if prostitution should be considered a leisure activity rather than work, the United Nations' still guarantees prostitutes the right to leisure under Article 24 (United Nations A/180, 1948). Either way, it is not the place of the law to intervene in the exercise of the fight, but to enforce it.

The last paradigm reflects the most fundamental of all human rights, freedom of choice, or the autonomy and equality so eloquently expressed by Richards. The term "crime without a victim" in reference to prostitution was coined by the deviance theorists (Schur 1965) in a bid to convince legislators that these kinds of "crimes" should be decriminalised because nobody is harmed by them. New South Wales, Denmark, Sweden and The Netherlands, all responded to this with some efforts at decriminalising their prostitution legislation. Reduced to its most fundamental interaction, prostitution is simply sexual activity in private. Two oft repeated catch-cries in the libertarian movement have been "the law does not belong in my bedroom" and "keep your laws off my body". This, after all, is an essential aspect of autonomy, and has been most vehemently pursued by gay liberationists. Gay reformers argue that they have a right to have sex with whomever they please, so long as both parties consent and are of a legal age. The only difference between homosexual couplings and heterosexual ones are the sex of the partners, and that is a matter for preference not law. In prostitution, it is not sex but the payment of cash which is the only difference between it and other casual heterosexual couplings. Where it does differ more substantially is when the prostitution occurs in a brothel. But, then it is more a matter of environment and town planning, and not sexuality.

Today we are witnessing history repeating itself. In the wake of the Reformation a wave of anti-prostitution legislation swept Europe. But, in the age of reason and enlightenment, these legislative measures relaxed as the laws fell into disuse and a return of laissez-faire occurred. In the 19th century — first in response to spreading disease — licensing and regulation of the kind once occurring in the Middle Ages was established, and then-in response to the Evangelist Movement and the various social purity organisations- laws prohibiting prostitution or its activities were introduced. Now, in the new age of reason and enlightenment, with the maturity of human rights and the decline of morality, comes a fresh rethink on prostitution. We are presently at the crossroads between a return to "Medieval" regulation, or a return to "Early Christian" laissez-faire. Into the breach of legal philosophies Australia, with its experiments in legalisation and decriminalisation, is thrust, to stand at the threshold of universal legislation on prostitution. This role will be discussed at length in the next Chapter.

Conclusion

A common theme throughout this Chapter has been the artificial devices created by society to identify prostitutes as separate from other women. These devices included stigma, alienation, science and law. The Romans stigmatised their prostitutes as "rebellious women" and identified them with slave status. The Israelites stigmatised prostitutes in Israel as "sacrilegious" and tended to identify them with women from other nations.

The Romans and Medieval Europeans enforced dress regulations to make prostitutes appear different to other women. In modern society the same intention is seen in science and law, with academia locating the deviance through theoretical and empirical rationalisations, and the laws controlling this deviance by isolating those deemed to be most responsible for it. The law and the Church in modern society collaborate in dealing with prostitutes by the joint stigma of "criminal" and "immoral", which in effect make these women appear fundamentally different to other women.

One of the outcomes of this Chapter has been to illuminate the stigma of "prostitute" as an artificial, constructed and superficial process created through the three major channels of the Church, the scientific approach and legislation. As the rest of this book will only too clearly demonstrate, this artificial construction masks an essential truth: that prostitutes are ordinary women in a specific occupation that involves promiscuous sex, female sexual freedom and sex as a commodity. The essential truth highlights prostitutes as little more than "sex workers", while the artificial devices seen in this Chapter mark them permanently as "scarlet women".

Chapter 2: Control, Regulation and Legislation

Introduction

Of greatest concern to prostitutes are the laws which control and regulate their industry. This is not to deny health, violence, industrial relations and taxation as important issues in their lives. The statutes are the aspect of prostitution over which they have least control, and which affects not only those issues just mentioned but also their private as well as their public lives. The law can force them to seek more clandestine places of work and thus reduce their incomes; it can encourage the intervention of organised crime in their industry; it can force them to accept pimps and panders for protection from arrest; it can involve them in a police extortion racket through having to pay individual policemen in order to avoid arrest; and, it can give them a criminal status even without a previous record. In spite of pimps and police extortion, these are no ultimate guarantees against arrest during police "blitzes"; they simply reduce the number of arrests. Criminalising legislation then turns women in prostitution, with no other record of crime, into criminals. Little wonder, then, that prostitute organisations make law lobbies their quintessential focus.

Australian prostitution legislation offers an interesting variation of control and regulation from state to state. This Chapter begins with an historical development of this situation and then investigates the state statutes with a view to determining how these affect the lives of prostitutes.

Prostitution Regulation in Colonial and Early Federal Australia

A history of prostitution legislation in Australia can be divided into three distinctive periods: the convict period; the late colonial period; the Federal period. In the first, apart from some ineffectual English common laws on "brothel keeping" and "disorderly houses" and colonial public nuisance legislation, no laws existed to interfere with a prostitute's industry. In the second period, regulation of prostitutes was sought through the various "contagious diseases" legislation. In the last period, criminal laws were introduced, beginning in the last decade of colonialism, to prohibit the activities of prostitutes, a situation which has continued in most states to the present day. It should be stressed at this point that this prohibiting legislation was aimed at the activities of prostitution and not at prostitution itself (which, of course, was the ultimate aim of the moral agitators in the last century). But, in most instances, without these activities, prostitution would be non-existent as a viable commercial enterprise. Therefore, it is the nature of the legal prohibition which makes the law discriminatory to prostitutes.

There is no evidence that prostitution as we might recognise it existed among pre-colonial Aboriginals. Since women were monopolised by older males through kinship alliances and the betrothal of female children, a surplus of females did not exist, and young men had to satisfy their sexual urges through clandestine heterosexual affairs, kidnapping women, homosexuality and "boy wives" (see Westermarck 1908-71, pp. 459-61). Professor Elkin, the eminent anthropologist and scholar of Aboriginal culture, alluded to pre-colonial wife loaning between males in a reciprocal system of exchange (Elkin 1974, pp. 161-2). Some writers claim that prostitution was unknown in tribal societies before contact with Europeans (Decker 1979, pp. 28-9). Thus, it is likely that the earliest Europeans to Australia were quick to manipulate the Aboriginal exchange system to their own benefit by buying women with European goods prized by Aboriginal men.

There seems little doubt that prostitution came to Australia with the First Fleet in 1788. Historian Robert Hughes (1987, p. 71) notes that of the 192 convict women who were transported on the First Fleet only two had previous reputations for being a "poor unhappy woman of the town". Another historian, L.L. Robson (1965, p. 77) claims that only one in five of all women transported to Australia had been prostitutes in England. Yet, contemporary accounts implied that the number of women already experienced in prostitution before arriving in the colonies was much higher. There is, of course, that now well-known remark made by naval lieutenant Ralph Clark (cited in Summers 1975, p. 267) in response to the arrival of another 200 convict women to the colony of New South Wales aboard the Second Fleet in 1790: "My God, not more of those damned whores!" In 1817 Earl Bathurst writing to Governor Macquarie on the "state of prostitution" in the colony stated that "female convicts during their voyage to the colony are permitted to live with officers and seamen of the ships." (HRA, vol. 1, no. 9, p. 750). The general attitudes in Sydney Cove were such that women embarking as assigned household servants "were in general received rather as prostitutes than as servants." (NSW Parliamentary Papers Vol. 2, p. 585)

On the other hand, as medical historian Dr Waugh (1971, pp. 146-50) has noted, the prominent English surgeon, Sir Anthony Carlisle, told a parliamentary commission in 1831 that the half-yearly voyage from England to Australia resulted in infertile prostitutes on board becoming remarkably fruitful in the colony due to so long a period without intercourse. Contemporary accounts are therefore quite conflicting concerning demands on convict women.

Much of this, as Hughes, Sturma and other historians have pointed out, was due to "the stereotype of women convicts as prostitutes emerg(ing) from... and ignorance of working class habits" (Sturma 1978, p. 10) by middle-class authorities. The words "whore" and "slut" were derogatory terms applied generally to working-class women by a disdainful middle class. The fact is, that most of the women lived in de facto relationships with men both in England and after transportation to Australia, and this in the eyes of the middle class constituted an immorality deserving the stigma of whore (Hughes 1987, pp. 244-50). Thus, it is the women who "lived" with their "de facto husbands" who more likely made up the sturdy female pioneer stock than the professional prostitutes who clung to town life, where business with urban males, sailors and the military thrived.

Modern historians still seem to respond to the myths about working-class women, rather than accept that in early colonial times, as today, only a minority of women chose to survive through prostitution. It was not a case of "most of our founding mothers and early poor women... forced into prostitution" (Dixson 1976, p. 139), nor, as Anne Summers (1975) indicates, were they necessarily processed into prostitutes by the brutal sea voyages to Australia. In her feminist analysis of female convictism she is convinced that:

It was deemed necessary by both the local and the British authorities to have a supply of whores to keep the men, both convict and free, quiescent. The whore stereotype was devised as a calculated sexist means of social control and then, to absolve those who benefited from it having to admit to their actions, characterised as being the fault of women who were damned by it (Summers 1975, p. 286).

It was probably unnecessary for British or colonial authorities to create or institutionalise prostitution in early Australia. There were enough women en route who were already experienced prostitutes, and enough who would take it up as a choice for survival in the colony to keep men "quiescent". The ancient whore stereotype would apply to them through practice, just as it was applied to others through assumption. As Judith Walkowitz (1974, p. 29) remarks in relation to its application to working-class women in 19th century England: "the distinction between promiscuity and clandestine prostitution may have remained bluffed."

With a high level of poverty in the colony and a large surplus of men, prostitution was pretty much assured, institutionalised by the state or not. Robson's (1964, p. 4) statistics on the numbers of convict men transported compared to the numbers of women implies a ratio of at least 5:1 in favour of males, and that is without considering the male excess among free colonists, officials and military personnel. By the end of transportation to New South Wales in 1840 the ratio of men to women was 3:1 in favour of men (Summers 1975, p. 278) in spite of deliberate attempts to redress the balance with single, free, women immigrants. But it was poverty and low wages which encouraged women into prostitution in early colonial Australia Oust as in late 20th century Australia) rather than any surplus of males (although some professional prostitutes from England would have immediately grasped the situation as a lucrative business venture). As one colonist noted: "There are not sufficient lodgings for them, or occupations, and they are forced into prostitution for these reasons." (HRA vol 1.1, no. 9, p. 198). The Reverend Vale wrote to Macquarie in 1818 that: "the greater part are compelled to prostitute themselves in order to find a place for their nightly shelter." (HRA vol. 4, no, 1, p. 287). Although the good Reverend probably exaggerated the situation in order to manipulate charity funds, nevertheless it stresses to some extent the economic problems of the colony in relation to prostitution.

Poverty and prostitution, along with homelessness, unemployment and drunkenness, were enough of a problem to colonial authorities for them to consider legal action. One witness to the Molesworth Committee of 1838 probably expressed what most authorities felt: "(The female convicts) are, all of them, with scarcely an exception drunken and abandoned prostitutes." (cited in Summers 1975, p. 274) In 1822 Commissioner Bigge, in his official investigations into the Australian colonies, told Macquarie that more than 20 "brothels" (most were private houses used by women to sexually service men) existed in the little town of Sydney, and that many of the inmates of the Parramatta Female Factory were being used as prostitutes as well as "legitimate" workers (Bigge 1972).[1] Female factories at Parramatta and Cascades, near Hobart, with their alleged abuses by staff, immorality and prostitution by inmates, were a source of much controversy in the colonies. Such comments as the following gave these factories unsavoury reputations:

The greater portion (of inmates) betake themselves to the lodgings in the town of Parramatta, where they cohabit with the male convicts in the employ of Government, or with any person who will receive them (Hutchinson 1963, p. 52).

The meagre sustenance and brutal treatments of these factories were largely responsible for the abscondings, cohabiting and prostitutions of the unfortunate inmates.

Feminist historian Miriam Dixson (1976, pp. 139-40), in her analysis of colonial prostitution, points to a risk to one's self-esteem as a possible deterrent for many considering entering prostitution. Whilst this may be true for most women today, the likelihood of starvation and brutality in convict Australia was probably much more demeaning, and actually may have made the economic independence of commercial sex seem appealing.

In colonies desperately trying to bring an end to transportation after half a century of convictism, and anxious to improve a reputation soiled by brutality, virtual enslavement and a "low class" population, the authorities in Van Dieman's Land and New South Wales thought to arrest their social problems by repressive legislation rather than welfare. Thus, in order to wipe out the national stain, they made poverty and homelessness crimes in the Vagrancy Act of 1824 in Tasmania and the Prevention of Vagrancy Act of 1835 in New South Wales. The homeless, the desperately poor, drunkards, beggars, petty criminals and the prostitutes could be arrested and detained for "being without lawful means of suppose." it certainly did very little to stop poverty and prostitution and it forced the colonial powers to support those detained in gaol. But they were useful laws for rounding up "undesirables" at will and especially when the authorities wished to impress visiting notables. They did reflect the ideologies of the work ethic of the Protestant authorities as well. These served as a model for similar legislation in Queensland in 1851 and in Victoria the following year. The South Australian response is curious. This colony was founded as the ideal colony and was Australia's only non-penal urban settlement. All the problems associated with the other colonies were assumed not to occur. Yet, in 1842 only six years after the founding, an official communique mentions "the large numbers of females who are living by a life of prostitution in the city of Adelaide, out of all proportion to the respectable population" (Penney cited in Horan 1984). Two years later the Police Act was passed in the colony, with Clause 18 dealing with the "public annoyances" of prostitutes and other "undesirables".

These public nuisance statutes identified prostitutes as a social group along with other "problem" groups. In mid-century they became the focus of Christian charity, as an alternative system of dealing with prostitutes. Shelters for "fallen women" began to appear in the colonies, such as the refuges, reformatories, Magdalene Homes and girl's industrial schools of Christian organisations. These were no more successful than repressive laws. But one individual who had some success "rescuing fallen women" was the redoubtable Caroline Chisholm, who almost single-handedly shipped hundreds of free immigrant women to New South Wales in the 1840s with the intention of redressing the sex imbalance and marrying them to colonial men in order to strengthen the bourgeois family system. In 1841 she founded a female immigrants home, providing shelter and work for destitute women and immigrant brides for the colonial males. She claimed to have found work for 1,400 women, including 76 who were "reclaimed prostitutes" (Kiddle 1950, pp. 50-4). But in the end the task proved too much for even the tireless Chisholm.

The gold rushes of New South Wales and Victoria in the 1850s not only wrecked Chisholm's dream of a "respectable colony built on family life", but they made a farce of the "vagrancy" laws with hundreds of men abandoning their families for the diggings, thousands more men arriving in Sydney and Melbourne also bound for the diggings, professional prostitutes following the men to their make-shift gold towns, and hundreds of deserted wives and children in the cities having to fend for themselves through stealing, begging and prostitution. One witness to the Select Committee On The Condition Of The Working Classes in 1859 said: "The discovery of gold... have left numbers of women and families in Sydney without protection or any regular means of subsistence." (NSW Votes and Proceedings 1859-60). Police Inspector McLerie added that "more than half the prostitutes are under 20", and another witness elaborated on this:

I have seen very young girls following the call of a prostitute... But not so young as to make it a worse sin than common. If by a female child you mean a girl of 14 or 15, yes, but for that purpose she is no longer a girl (cited in Dixson 1976, p. 104).

The Argus newspaper in Melbourne in 1859 wrote:

Melbourne swarms with prostitutes. Morning, noon and night they are seen exhibiting themselves at their doors and windows, and with all the effrontery of harlotry. In the streets they may be seen at all times, frequently without bonnets, walking arm in arm and three abreast. Around hotels they congregate every evening; they rendezvous at the Theatre Royal bars for special practice at their seductive arts (cited in Winter 1976).

Comments such as these, loaded as they are with moral outrage, were making deep impressions on evangelical and other Christian organisations. It was obvious to them that the "vagrancy" laws alone were insufficient to deal with the growth of prostitution. But the colonial governments of the time were troubled by other problems. They were not anxious to deal with prostitution on purely moral grounds; but the threat of venereal disease, or "the social evil" as it was dubbed, offered them the incentive to control prostitution on health grounds. The English Contagious Diseases Acts of 1864-69 provided them with the means to legislate this control. Queensland was quick to respond with its Prevention of Contagious Diseases Act of 1868. Almost a replica of the British Acts, the colony's medical administrator, William Hobbs, describes its intentions:

With the tide of immigration that set in to this colony about 1864, a large number of loose women were landed in Brisbane... This Act was an adaptation of the Imperial Act of 1866, in which provision was made for the examination of prostitutes at regular periods; for the establishment of Lock Hospitals within the colony, to which the diseased were to be sent and detained until cured (cited in Cumpston 1989, p. 257).

The Act right from its inception proved to be ineffectual in either containing the disease or in regulating prostitutes, for as Dr Hobbs was forced to admit in an official report in 1879:

The Act, by providing the 14 clear days' notice shall be given by the police to a prostitute before being summoned for examination, affords her the opportunity either of abandoning her mode of living, or leaving the place in which she plies her vocation... The first issue of the notices to attend at the place appointed for examination was the signal for a stampede of those women of doubtful reputation. Many of them left Brisbane (Cumpston 1989, p. 257).

In spite of this report and a recommendation by the Queensland Legislative Assembly to repeal the Act in 1885, it remained on the statutes until 1911. A feminist-Christian lobby like the one in England never materialised in Australia.

The Queensland Act differed from the British model in one essential detail. The English Acts were intended for the protection of military and naval personnel only, but in the Queensland Act the civil community of Brisbane and other towns were the chief targets of protection. In Tasmania it was closer to the British ideal. Following requests by the Commodore and Staff Surgeon of HMS Wolverine to the Tasmanian Government to implement similar legislation as England for the protection of their sailors, the Contagious Diseases Act was passed in 1879 and Lock Hospitals established at the Cascades female factory building and as an annex of the Female House of Correction in Launceston, in accordance with a closer relevance to penalisation than to treatment (Daniels 1984, p. 59). This Act remained in force until 1903.

The Victorian Government introduced the Conservation Of Public Health Act in 1878. But in spite of its name it had a function no different to Queensland legislation based on the British system:

This Act provided that upon complaint on oath by a sergeant of police or a higher officer that a female was reputed to be a common prostitute, and that he had reason to believe that she was suffering from a disease (syphilis in all its forms), a Police Magistrate might require her to prove by the evidence of a medical practitioner that she was free from the disease (Cumpston 1989, p. 258).

The highly discriminatory nature of this as well as the Acts in Queensland and Tasmania [2] highlights the most effective outcome of this health legislation. As a legal control mechanism it failed but in singling out prostitutes for treatment and incarceration in the lock hospitals it focused on this small group of women as a dangerous social group and as pariahs requiring specialised legal attention. Early in the colonies they were identified with convict women generally, as convicts were identified with them. Under the "vagrancy" laws they were not recognised as a special group but in general were cast with the homeless, the abject poor, drunkards and others lumped under the expression "without lawful income". But after the "contagious diseases" legislation prostitutes became a legal entity, easily singled out as a group by moralists and the social purists agitating for the legal prohibition of commercial sex.

Once this happened there arose official requests for the numbers of prostitutes in order for colonial governments to assess the extent of the "problem". Brisbane police recorded 77 prostitutes in 1868, but by 1884 this population had "risen" to 136 (Evans 1984, p. 136). Adelaide police reported 500 prostitutes in the city in 1881 (Horan 1984, p. 89). The City of Sydney Council reported 613 prostitutes in 1885, but by 1908 the Central Methodist Mission claimed the numbers had "risen" to 2,000 or 3,000 (Allen 1984, p. 204). The Melbourne newspaper The Spectator in 1885 claimed the city had 2,000 prostitutes, but the Victorian Government Year Book in the same year estimated only 597. By 1905 Victorian police were claiming that Melbourne had 3,000 (Winter 1976, p. 40). Quite obviously figures were being cited without empirical basis and often for political gain or manipulated for moral arguments. In 1871 Sydney had a population of 137,566 persons, while Melbourne had 206,780. By 1901 Sydney's population had grown to 481,830 and Melbourne's to 496,079 (Clark 1980, pp. 165-6). Applying the above figures, this would indicate that approximately 0.9 per cent of Sydney's female population in 1871 worked as prostitutes, and about 0.6 per cent of Melbourne's females. By the same reckoning, in 1901 approximately 1.2 per cent of the female population in both cities were prostitutes. If the cities' fathers had made the same kind of calculations, a kind of moral panic must have set in. Propelled along by the social purist lobbyists, the colonial legislators must have considered duplicating England's Criminal Law Amendment Act of 1885.

The world traveller R.E.N. Twopeny (1883, p. 124), who visited Sydney in 1881, and must have been familiar with London's East End as a native of that city, remarked on his amazement at the numbers and boldness of Sydney's prostitutes. In 1871 a booklet appeared entitled Vice and Victims in Sydney by an anonymous author. It warned of the moral dangers facing young men in the city:

There is a class of girls and young women here — hopeless specimens of whom may be seen airing themselves in the Domain and gardens on Sunday afternoons, and on Sunday nights in George Street, putting even rough modesty to the blush by their shameless speech and acts-sapping the foundations of the State and urging youth to ruin and infamy (cited in Winter 1976, p. 30).

Such highly emotive words might have been seen as the "evidence" of moralists' own eyes surveying the open soliciting of women on the Sydney streets of George, Pitt, Castlereagh, Elizabeth, Phillip and King, as well as Martin Place in the 1880s and 1890s. In Melbourne during the same period street prostitution occurred openly on Collins, Bourke and Swanston Streets, while the city block bounded by La Trobe, Spring, Lonsdale and Exhibition Streets contained a "red light" area of brothels and bordellos (Winter 1976, pp. 30-2, 40). In the 1880s police reported their frustrations at convicting Melbourne's "brothel keepers" due to difficulties acquiring evidence of ownership (McConville 1980).

Finally, the colonial governments acted with a series of laws aimed at suppressing the activities of prostitutes, the recruitment of women for prostitution, and the operators of the sex businesses. South Australia quickly followed the English legislation in 1885 with the Criminal Law Consolidation Amendment Act in a knee-jerk reaction to hysteria about possible "white slavery" of the European sort (with Sydney being seen as the "sin city" where kidnapped Adelaide girls were taken) (Horan 1984, p. 106). The same Act increased the age of consent for girls from 12 to 16.

The Victorian Government introduced the Crimes Act in 1891 also to discourage the procuring of adult females (procuring of children had been a statutory offence since 1864). In the same year the Police Offences Act made "importuning" in a public place an offence throughout Victoria under Section (s.) 7(2). In Queensland in 1899 the Criminal Code Act prohibited procuring (ss. 217-19), unlawful detention (s. 220), and keeping a "bawdy house" (ss. 23 1, 235), each of which became indictable offences. This Criminal Code remains in force in the Queensland statutes, except for s. 220, unlawful detention, which was repealed in 1989.

In the 1890s Western Australia was faced with the same situation as New South Wales and Victoria had 40 years earlier, following the discovery of gold east of Perth. Prostitutes were quick to follow the miners to the gold town of Kalgoorlie and Coolgardie, while deserted wives plied a commercial sex trade in Perth. The Government reacted with an omnibus legislation in 1892, the Police Act, which made soliciting (s. 59), and consorting with prostitutes (s. 65) offences, and the Criminal Law Amendment Act, making procuring (ss. 2, 11) an indictable offence. The Municipal Institutions Act was introduced in 1895, giving local authorities power over the prohibitive offence of "brothel keeping" (s. 99) in the gold towns.

Thus, more than a hundred years after the first white settlement in Australia, prostitutes and prostitution, which had been introduced to the continent by the first white settlers, for the first time came within the direct ambit of criminal law. Not only were prostitutes blamed as disease carriers and a danger to the health of society by the "contagious diseases" legislation, now they were held largely to blame for society's immorality and female criminality by the law. It is important to understand that this definition of prostitutes as social pariahs is a legal fiction first introduced in this country less than a century ago.

The coming of Federation in 1901 did little to change this situation, except reaffirm and strengthen the existing legislation. Amendments to the Western Australian Police Act in 1902, for example refined previous laws. "Brothel keeping" (s. 7[1]) was made an offence within its frame, and tenants or landowners who leased to "brothel keepers" (s. 7[2] & [3]) were also liable. A "brothel" for the purposes of this law referred to any place "kept or occupied by one person or more than one person" involved in prostitution. In addition to the laws pertaining to "common prostitute wandering the public streets" (s. 65[8]), and "consorting with... known prostitutes" (s. 65[9]) or "occupying a house with prostitutes" (s. 65[7]), the act of soliciting and living on the earnings of prostitution (s. 8[l]) were added. Police were given enormous power over prostitution operations under this Act, a situation which led to the restriction of commercial sex to two areas in the state, Hay Street in Kalgoorlie by 1910 and Roe Street in Perth by 1920 (Davidson 1984, pp. 171-3). In effect, prostitution regulation in Western Australia had become a system of containment under police supervision. Under s. 42, for instance, police had a right to remove forcibly any prostitute or reputed thieves" known to them from theatres.

The Western Australian Criminal Code introduced in 1913 also dealt with "brothel keeping" (ss. 209, 213). Its most important prostitution laws were concerned with the procuring and detention of women in brothels (ss. 191[2]-[4], 192[2], 194[2]). In the matter of detaining a woman in a brothel against her will, the curious notion of lawful stealing of property presents itself when the owner or manager of a brothel

withholds from her any wearing apparel or other property belonging to her, or if, after wearing apparel has been lent or otherwise supplied to the woman or girl or by the direction of such person or any other person, he threatens the woman or girl with legal proceedings if she takes away with her the wearing apparel so lent or supplied, it is lawful for a woman or girl to take any such wearing apparel as may be necessary to enable her to leave a brothel.

Similar legislation has appeared in the statutes of other Westminster law systems both in Australia and overseas. Apparently, in cases of "white slavery" traffickers and brothel keepers removed the victim's clothing and replaced it with the skimpy or flimsy garments appropriate to commercial sex but not for public appearance.

The other states also refined their existing legislation. In Victoria, the Police Offences Act was amended in 1907 to include prohibitions against living on the earnings of prostitution (s. 5) and keeping a brothel (s. 6). In South Australia the Suppression of Brothels Act of 1907 gave police greater powers of conviction and indictment over brothel ownership (police under the Police Acts of 1844 and 1863 had always had greater powers for controlling street prostitution in South Australia than other colonies by treating it as a "public annoyance"). In Tasmania the various vagrancy and public nuisance statutes were incorporated into the Police Act of 1905. In addition, this Act prohibited "living on the earnings of prostitution" and "soliciting for immoral purposes" under s. 17, one of the most blatantly moralistic legal rhetoric in Australian law.

The Criminal Code of Queensland remained unaltered following Federation. An interesting comparison with Western Australia can be made with the legal interpretation of a "brothel". As we have seen, in Western Australia even a single prostitute in a house may have been seen as a brothel. In Queensland though, an early court decision defined the term thus: "A house used by a woman for the purpose of prostitution of herself only is not a brothel." (Singleton v. Ellison (1895) IQB p. 607) Yet in another court decision a "brothel", may have been accepted as such where a number of such single-prostitute establishments were grouped together: "If several flats in a block of buildings under one roof are used for the purpose of prostitution, the whole block may be a brothel." (Durose v. Wilson (1907) 71JP 263). These interpretations guided the law in the Criminal Code.

Several states used the old English term of "common prostitute" in their statutes. In the Queensland Criminal Code, s. 217 refers to a "common prostitute" as "a woman who commonly offers her body to men for lewdness in return for payment, even though she neither offers nor has sexual intercourse with them" (cited in R v. De Munck (1918) 1KB 635). The Canadian Criminal Code, which had also adopted the term, might express a common view by adopting an attitude of a "common prostitute" as a woman "once a prostitute, always a prostitute." Under this rationale she may not be "common" on her first prostitution experience, but any subsequent experiences would label her so.

In 1911 the Queensland Contagious Diseases Act was replaced by the Health Act Amendment Act, which was used not only to continue detaining prostitutes suspected of infection, but demanded that they attend periodical medical supervision. Under s. 132B(iv) it enabled the Governor in Council to regulate

Requiring prostitutes within the metropolitan area... and other such localities to which the regulations may from time to time, by Order of the Council, be extended, to submit themselves for periodical examination by a medical officer at specified times and places.

Under s. 132E(2) a court could further sentence a prostitute or vagrant convicted of an offence of "vagrancy" or other misdemeanour and

1. Commit the female to be detained for any period not exceeding 12 months in an institution approved by the Governor in Council... as a reformatory... ;
2. Impose imprisonment as aforesaid; or
3. By its sentence imposed either of the above punishments, and suspend the execution of such upon such conditions as it thinks fit.

Thus, the Queensland Government devised its health regulations as a backstop to its criminal legislation and as an alternative to indictment under criminal statutes resulting in incarceration of prostitutes for offences other states treated as misdemeanours.

Whilst most state legislation included health laws to punish individuals responsible for knowingly infecting others, and enabling the detention of those who proved to be a "public health menace", in South Australia the Venereal Diseases Act of 1920 included the prohibition of the use of medical certificates for the purpose of prostitution (s. 16) and the criminal indictment of any owner or occupier of a place of prostitution who permits "any person suffering from a venereal disease to occupy" the place (s. 23). Woven into this legislation are the moral idea that prostitution is intrinsically wrong, and the mythology that prostitutes are irresponsible infectious creatures. These kinds of attitudes continue to pervade the criminal and health legislation right up to the present time.

Unlike the other colonies, New South Wales prior to Federation did not implement prostitution-specific laws. In 1908 the state government passed the Police Offences (Amendment) Act by which soliciting (s 4[l]), living on the earnings of prostitution (s 4[2]), and brothel keeping and leasing premises for the purpose of prostitution (s. 8B) amended the Vagrancy Act. This had an immediate impact on the prostitution industry, changing its course from a relatively free-wheeling trade to a highly structured brothel enterprise in which the prostitutes became controlled by criminal bosses, or, in other words, "proletariatised" (Allen 1976, p. 213). In an insightful article Golder and Allen (1979-80) trace the development of prostitution in New South Wales from its late colonial laissez-faire operations often involving a prostitute and her boyfriend/husband protector through to the 1908 regulation when both were subject to the laws of soliciting and "pimping", after which many prostitutes were forced into houses owned by criminal networks where they received protection from the law through extortion and police corruption. They further explain how the Vagrancy (Amendment) Act of 1929 was introduced to deal with increases in female prostitution on the street following a recession in the traditional female textile trade, a clear case of the law being used to suppress the outward signs of a flagging economy.

Whilst New South Wales avoided the "contagious diseases" legislation of other states, in 1908 it introduced a nasty piece of health regulation known as the Prisoners' Detention Act. Similar to the Queensland legislation, it did not make prostitutes a special category, but its powers of detaining prisoners suspected of having a venereal disease even beyond their convicted sentence made prostitutes an obvious target after many came before the attention of the gaol authorities following incarceration for convictions under the Vagrancy Acts of 1901 and 1902. Indeed, the two Acts were held up as complementary legislation for recommended means of dealing with infected persons (Cumpston 1989, p. 260). Such an insidious precedent might have seen criminal laws being deliberately constructed in accordance with health regulation for the control of infectious diseases, so that gaol sentences might be passed on individuals for the purposes of bringing them under the control of medical authorities. It was indeed, the "contagious diseases" laws in other guises.

As in England and America, the criminalisation of prostitutes brought with it those connections between the women and hardened criminals that involved prostitution in the networks of organised crime. In Sydney throughout the 1920s and 1930s prostitution was inexorably linked with the sly grog and cocaine traders (McCoy 1980, pp. 101-2). This might best be seen by outlining the lives and events of two women of the period, well known for their involvement in prostitution but in different facets of the industry; one was a "madam" and owner of a number of brothels, while the other was a freelance worker sometimes described as a "gun moll".

Tilly Devine is a legendary figure among Sydney's many colourful characters of the 1920s period. English-born, she married an Australian soldier known as "Big" Jim Devine in 1919 and came to Sydney to live with him. In 1921, to avoid the soliciting law, she and Jim purchased a Cadillac, which they used for trading; he would drive while she solicited from the back seat. She purchased her first brothel in Palmer Street, East Sydney, in 1925. Within a few years she had acquired as many as 20 such houses in the street, earning herself the nick-name of "the Bordello Queen". In addition to houses of prostitution Tilly became involved in the traffic of cocaine. Many of her customers were her "girls" who became addicted to the drug, acted as dealers for her by interesting male clients to the brothels, and they became tied to her in a system of perpetual debt through advanced purchases of the drug. Tilly's long-standing rival in both prostitution and drugs was Kate Leigh, who owned a string of brothels and sly grog shops in Surry Hills. The rivalry became so intense that each woman had gangs of hired thugs to protect themselves and to harass their arch enemies. Tilly's gang of razor slashers would mutilate some of Kate's girls, and Kate would retaliate by having her gang of gunmen take pot-shots at Tilly's girls from rooftops.

On one occasion a rival gang attacked the Devine home in 1929 forcing "Big" Jim to slay one of the underworld's most vicious hoodlums in the ensuing gun fight. He was acquitted of murder. The Devines, it was suggested, had become so powerful that Tilly could bribe the entire police force. Her friendship with high ranking policemen was legendary. By the Second World War she had become the wealthiest woman in Sydney. But after the war her fortunes began to wane until finally the Taxation Department caught up with her, causing her to off-load her assets at such a rate that by 1959 she had only one house left in Palmer Street. Tilly, who had a record of 204 arrests, mostly for soliciting, consorting and offensive behaviour, had long been surpassed and her power had long been broken by the time of her death in 1970. But the image of Tilly Devine, "Bordello Queen", lived on to be emulated by a generation of "madams" after her (Blaikie 1980, ch. 1; see also McCoy 1980, pp. II 7-20; Allen 1979-80, pp. 218-20).

As Tilly Devine was the archetypal brothel "madam" of the post-war period, Nellie Cameron was the period's best known prostitute. Nellie once worked for Tilly, but at other times she worked for some of the most notorious gangsters in Sydney's underworld. It was said she was raised in a middle-class North Shore home, but at 14 ran away from her family to become a Kings Cross prostitute. Her first "pimp" was the brutal Norman Bruhn, leader of the infamous Darlinghurst Push razor-gang. When he was slain in a gangland war she gave her allegiance to another vicious hood, Guido Calletti, and when he too died in a gun fight, she became the lover of the hired killer, Frankie Green, known as the "Little Gunman". She was once asked by a policeman why she chose hoodlums and gunmen as "pimps", and she replied wryly: So that you can wake up in the morning and look at someone lower than yourself." (cited in Winter 1976, pp. 106-8). This reply is a pitiful self-indictment of someone resigned to a lowly status. It reflects a terrible internalisation of guilt suffered by prostitutes of the period, when they were openly scorned by society, identified as the archetypal female criminal, and forced to associate with the most brutal gangsters of the time. Throughout Nellie's career as Sydney's top prostitute she was shot on three occasions. One of these bullet wounds troubled her for the rest of her life, and assuming it caused her a lethal cancer, rather than face a lingering death she gassed herself in 1953, at the age of 41. She looked years older, her broken body showing the distinctive signs of the wear and tear of her hard life. "Nellie," wrote George Blaikie, "was a beautiful woman, but the lifestyle of a gangster's girl and prostitute took its toll with her premature death." Nellie spent most of her life in prostitution; it may be true to say that she gave her life to it too (Blaikie 1980, ch. 3).

Prostitution's association with organised crime in Sydney continued throughout its entire period of criminalisation. But, by the late 1970s, when the state government decided on legal reform, the city's biggest criminals maintained only a fleeting interest in commercial sex, having turned most of their attention to the much more lucrative heroin trafficking.

The third wave of criminalising legislation occurred in the 1930s. In some instances, the legal changes involved only one or two additions, such as the Victorian Police Offences Act of 1940, with its amendment to s. 3, enabling the conviction of a single prostitute in a flat or her home for "brothel keeping". In other instances, the changes were substantial and involved entire Acts and complex pieces of legislation. The Queensland Vagrants, Gaming and Other -Offences Act of 1931 was an example of such legislation. It included soliciting (s. s5[1]), brothel keeping (s. 8), permitting prostitutes to operate in lodging houses (s. 9), living on the earnings of prostitution (s. 11[a]) as offences, while under s. IO brothel keepers were obliged to supply police with all names, ages and occupations of brothel inmates upon request by the police following representations to them by "two respectable residents" living in the vicinity of the brothel in question. The Queensland Health Act of 1937 reinforced the criminal statute by its prohibition of soliciting (s. 60[i]), pandering (s. 60[iii]) and occupying a house frequented by "known prostitutes" (s. 60[iv]); a tradition of complementary health-criminal legislation continued to apply.

In 1924 Tasmania introduced its Criminal Code Act, which made procuring (ss. 128[ii]-[iv], 129), unlawful detention in a brothel (s. 130) and keeping or owning a "disorderly" or "common bawdy" house (s. 140) indictable offences. The state's Police Offences Act of 1935 expanded on the previous "police" statute, with vagrancy (s. 5), consorting with "known prostitutes" (s. 6), soliciting (s. 8[ii]), living on the earnings of prostitution (s. 8[viii][a]), soliciting for immoral purposes (s. 8[viii][b]) and keeping or owning a "disorderly house" known to "harbour prostitutes" (s. 10[ii]). As a legislative package these laws were one of the most comprehensive sets of prostitution legislation in the country.

The South Australian Police Act of 1936 gave police extraordinary powers, equal if not exceeding that in Western Australia. A policeman could enter any house, room or place of entertainment (for example concert or music hall) and order a "common prostitute" to leave the premises (s. 63). He could apprehend her at any time (s. 67) and even do so without a warrant based just on her reputation as a "common prostitute" (s. 70). Here, it seems, the phrase "once a prostitute, always a prostitute" was most strongly believed. For the purposes of the law this Act defines a "brothel" as "any house or premises, or part of any house or premises, to which people of opposite sexes resort for the purpose of prostitution" (s. 101). While this interpretation is closer to the Western Australian definition than the Queensland, it is just as sexist as the latter. Brothel keeping and ownership were offences (ss. 102, 103) in the Act, and any letting arrangement became null and void once prostitution occurred on the premises (ss. 104, 105). Any police constable could enter any premises suspected of being a house of prostitution with no more than written permission by any superintendent, inspector or sergeant of police (s. 106). Later these legislated police powers would be difficult to wrest back from the police.

It is no coincidence that these legal modifications occurred in the wake of the Depression. With increases in vagrancy, homelessness and prostitution as a response to unemployment and poverty, police powers had to be increased to deal with desperation and "idle hands" which the police were certain led to crime. It was a move to "nip serious crime in the bud" with convictions for misdemeanour offences. Usually, however, it had the reverse effect. Prostitutes came under special attention as particular female offenders. Few people considered the increasingly stringent laws as manoeuvring prostitutes, like Nellie Cameron, into serious crime, because of a common assumption that they were lost to society in the first place by their prostitution. The police understood that prostitution could not be entirely suppressed and acquired the power through legislation to regulate rather than remove commercial sex. It enabled them to be selective and discriminatory in their use of the law, so that the least compliant, the most troublesome and the most outspoken prostitutes could be dealt with by the criminalising legislation. What remained were women most likely to follow police instructions, most likely to stay invisible and quiescent, so that the criminalising legislation may publicly appear to be effective, especially to moralists, social purists and other prohibitionists who demand the impossible: the eradication of prostitution.

This historic review has shown how prostitutes have become a legally identifiable social group. In the early days of Australian colonialism, without the legal means to identify clearly those women working as prostitutes, they were closely identified with the convict population. Later, the vagrancy legislation could separate those convict women settled in family life and those wandering the streets, but still prostitutes were not a legally defined group and were regarded along with vagabonds, petty thieves and the desperately poor as an amorphous group of social "misfits". The mechanisms of the contagious diseases legislation singled out prostitutes as a legal entity separate from the rest of the population. With the introduction of criminalising legislation just prior to Federation, prostitutes were clearly identified in the public mind and were easily targeted for special legal treatment that closely paralleled them with the criminal class. It is this last stage of legal identification that has remained in the public consciousness to this day, and has provided the state with the means of socially controlling this small group of women with their aberrant sexual mores as it sees fit.

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