CHAPTER V.

The offences which are punished under other Acts of Parliament, or according to the common law of England, are all either carefully defined by these Acts and that law, or else they are such as unmistakably to define themselves. In these Contagious Diseases Acts, on the contrary, there is no definition of the offence treated under them, nor do we find that the offence is such as unmistakably to define itself. On the contrary, we find amongst the advocates of these Acts, no less than in society generally, the widest possible variety of opinion as to the definition of a prostitute. This variety of opinion is only indicative of the immense difficulty of drawing any marked line as to where a woman may be justly designated by this name. There are many easy-going persons of the upper classes who know nothing of the poor, and who talk of this unhappy class as if they were as easily distinguishable as a negro is from a white man; but those who are acquainted with the poorer classes of women know the utter fallacy of this method of judgment, and are well aware that there is amongst this class of sinners as long and varied a series as in any other. Moreover, those who have looked at all carefully into the subject observe, that there are in human nature deeply-seated causes why this indistinctness of definition is maintained rather than otherwise; for they can scarcely help being conscious that the real cause of the difficulty which men who legislate on this subject experience in arriving at a just determination of that degree of guilt which is to attach this terrible appellation to a woman, arises in a great measure from the disingenuousness of men, and their disinclination that their sex should be acknowledged as the accomplices and companions of the persons thus defined. Until war be waged against impure men, as well as against impure women, it will remain impossible to define prostitution. It is amazing to see in this unequal war waged against the weaker sex only, how men who legislate for their own interests have, as it were, talked themselves into the notion, if it were possible to do so, that these poor women are sinners in this respect in their own single persons, and that male persons have no part whatever in the offence.

The attempt to define a prostitute is as difficult as it is, in the long gradation of character among men, from the most virtuous to the most vicious, to fix on that point at which a man may be stamped as an immoral character. Nevertheless, if the purification of society were the object of these laws, instead of the protection of one sex against the other, it would be possible, for legal purposes, to define prostitution, although the definition might be arbitrary. But for the purposes of this law, which does not aim at the purification of society, but only at the protection of one sex against the other, it is absolutely necessary that definitions should be avoided, and that the wholesale treatment of the weaker sex should be carried on in a maze of indefiniteness and arbitrary selection.

But without inquiry further into the causes which operate to bring about this result, it is evident that in the absence of any unanimity of opinion in the public mind as to what constitutes a prostitute, and in presence of the difficulty of drawing the line which public opinion admits, these Acts were bound to supply the definition. In the long line of women, extending from the most virtuous to the most vicious, there are two points at which the Acts might, if they pleased, have defined prostitution. Yet they adopt neither of these definitions. In the first place, they might have said that every woman is to be called a prostitute under these Acts who voluntarily and by some avowed method assumes the name; or secondly, that every woman who is found associating, under any circumstances, with a man, and who cannot produce a certificate of her marriage with him, is to be called a prostitute under the Acts.

Public opinion would not sanction the latter definition.

They did not adopt the former definition because it would not have been sufficiently inclusive for the purposes of the Act.

What they have really done is to leave the word undefined, and professing to adopt something like the former definition, thus soothing the alarms of justly-minded persons, they practically adopt the latter definition, with such arbitrary omissions as shall, in various places and at various times, seem good to the policeman of the district and the justice of peace of the district.[67]

The fact, indeed, which constitutes one of the greatest and most insidious practical abominations in connection with these Acts is the fact that, in virtue of this non-definition of a prostitute, the policeman and justice of the peace ride rampant at their pleasure throughout all that immense border land of humble society which lies between the confessed prostitute and absolute virtue. All the objections which we have urged against these Acts, with respect to the unconstitutional method by which they decide whether a woman is a prostitute or not, are intensified tenfold by the absence from the Acts of any definition as to what constitutes prostitution. A justice of the peace is therefore set to decide the question of fact as to a woman’s character, in which decision there are involved, as we have shown, most grievous consequences; and he is set to do this with absolutely no guide as to what is the thing which he is to determine the woman to be or not to be,—no guide either from the Acts in question, or from the concurrent unanimity of society at large. The result of this is, and must be, that the definition of what a prostitute is, gradually falls into the hands of the policeman who accuses her; a grievous and lamentable consequence of this law, which constitutes one of its greatest oppressions, whereby the whole operation of the law degenerates into a mere hunting in the streets by policemen of women suspected by them of unchastity.

In all offences which are punished by law, and which are capable of graduation, as all offences are, there is established a corresponding graduation of punishment, which usually varies through very wide limits.

Under the Acts in question there is no graduation of punishment, although, as we have seen, there is such a graduation of offence that the law cannot even define where the offence begins. The same punishment is meted to all, and the same treatment. It may be necessary for the purposes of this Act that it should be so. If it is thus necessary, the Act again stands condemned by this very admission. Let the reader compare this law then with any other summary case, for instance that of petty theft. If a man steal, theft is defined exactly, and the case is submitted to the justice, who, taking into account all the circumstances of temptation, of youth, or of poverty, administers a punishment such as he may think commensurate to the particular offence. Here an offence distinctly defined is submitted to a justice, who selects a commensurate punishment.

But in the case under this Act it is exactly the reverse. It is the punishment alone which is defined, and the definition of the offence is left to the justice.

There cannot be imagined a greater opportunity for error, nor a more utter reversal of all the principles of justice.

To submit such a case even to the superior tribunal of twelve selected men, in whose election the prisoner has a choice, would, under these circumstances of indefiniteness of charge, by no means secure for the accused a just decision. How much less is this likely to be secured under the circumstances of trial prescribed by the Act?

Let the reader observe too, in passing, the oppressive character of the Act. The Court is to be closed, unless the woman desires it to be open; it will generally be painful to the justice that such a case should be tried with open court. The first action of the law then is to bring the woman into opposition with that judge who not only, alone, is to determine the facts on which she is tried, but is also alone to define the offence.[68]

It may be said by some that should the woman be falsely condemned there is open to her the means of redress prescribed in this as in all similar Acts of Parliament. She may sue those concerned for damages, which she will get if she can prove that she has suffered an injury. I will not refer here to the great difficulties thrown in the way of any woman under these Acts obtaining any redress by the special clauses which refer to that redress. But it would seem as if the whole Act had been so framed that whereas errors under it should be inevitable, redress should be impossible. For if she be wrongly condemned for being a prostitute, how can she get redress for that false condemnation for an offence the definition of which is absolutely and entirely in the hands of the person who condemned her?

There is an infinite number of minor oppressions and necessary illegalities growing out of a law which is itself essentially oppressive and illegal, such as the intimidation by police, bribery, perpetual spying and eaves-dropping, the investing of the hospital surgeons with the powers of magistrate and gaoler in one, and illegal orders, in contravention even of the Acts themselves, issued by the War Office and the Admiralty, such as we have already referred to. On these, which are the vicious fruits of a vicious principle, it is not my object here to dwell; but there is one point to which, before leaving this part of the subject, I wish to call the reader’s attention.

Clause 28, Act 1866, runs as follows:—“If any woman, subjected by an order of a justice under this Act to periodical medical examination, at any time temporarily absents herself in order to avoid submitting herself to such an examination, on any occasion on which she ought so to submit herself, or refuses or wilfully neglects to submit herself to such examination on any such occasion; if any woman authorized by this Act to be detained in a certified hospital for medical treatment quits the hospital without being discharged therefrom by the chief medical officer thereof by writing under his hand (the proof of which shall lie on the accused); if any woman, authorized by this Act to be detained in a certified hospital for medical treatment, or any woman being in a certified hospital for medical treatment, for a contagious disease, refuses, or wilfully neglects, while in the hospital, to conform to the regulations thereof approved under this Act, then, and in every such case, such woman shall be guilty of an offence against this Act, and, on summary conviction, shall be liable to imprisonment, with or without hard labour, in the case of a first offence, for any term not exceeding one month; and, in the case of a second or any subsequent offence, for any term not exceeding three months; and in the case of the offence of quitting the hospital without being discharged as aforesaid, the woman may be taken into custody, without warrant, by any constable.”

Clause 29, Act 1866:—“If any woman is convicted of, and imprisoned for the offence of absenting herself, or of refusing or neglecting to submit herself to examination as aforesaid, the order subjecting her to periodical medical examination shall be in force after, and notwithstanding her imprisonment, unless the surgeon or other medical officer of the prison, or a visiting surgeon appointed under this Act, at the time of her discharge from imprisonment, certifies in writing to the effect that she is then free from a contagious disease (the proof of which certificate shall lie on her); and in that case the order subjecting her to periodical medical examination shall, on her discharge from imprisonment, cease to operate.”

A woman, then, the question of whose honour has been determined by an illegal method of trial, and who has in consequence been adjudged to undergo these examinations, is, if she refuses to submit to them, sent to prison, at the end of which time, when she is let out of prison, she may find the order for her examination still in full force. If she again refuses, she must again go to prison. The option is continually given her, at each time she comes out, of submitting to this examination fortnightly for a year, or of again going back to prison.

This part of the law alone is more worthy of the Spanish Inquisition than of this free country. There never was a law so calculated at every point to be the vehicle of persecution; and this iniquitous procedure is calculated to break the spirit of any woman. Such a law, such a mode of punishment—close imprisonment for life, with the constantly presented alternative of a brutal personal violation—such a punishment would be bad enough if following after the most regular, constitutional, and careful trial and conviction. But what, in God’s name, are we to think of it when it follows on a conviction such as I have already described? That these consequences may not be likely to happen is no satisfactory answer; that it should be possible for them to happen under the laws of England is itself sufficiently intolerable.

The whole treatment of the women who are brought under the operation of these Acts has the general character of those inquisitorial proceedings in the dark ages, which are condemned by all, and the very record of which is scarcely now permitted to be revived in any publication. There are cases of the ancient “peines fortes et dures,” which certainly did not involve bodily pain, which latter was often preferred by the victims when a choice was given. The inquisitors knew that to wound the emotional part of a woman’s nature was oftentimes greater torture than actual laceration.[69]

In concluding this chapter, I cannot avoid this opportunity of saying, that although we have been as yet objecting to these Acts on account chiefly of the innocent, or comparatively innocent, yet we must strongly assert that, in the application of them to the most deeply guilty of the class of women who come under their operation, they are equally dangerous and reprehensible. For this reason, that the essential danger, which we have all along pointed out, lies in the infringement in any case whatsoever of our ancient mode of justice—an element of license introduced into our criminal code being the first step towards the extinction of liberty for all. When Parliament ventured in the last century to infringe upon the principles of our constitution, in the case of Mr. Wilkes,[70] Lord Chatham, in deprecating their action, spoke the following words: “The character of Mr. Wilkes has very improperly been introduced into this question; for my own part, I consider him merely and indifferently as an English subject, possessed of certain rights which the laws have given him. In _his_ person, though he were the _worst_ of men, _I contend for the safety and security of the best; and God forbid, my Lords, that there should ever be a power in this country of measuring the civil rights of the subject by his moral character, or by any other rule than the fixed law of the land_.”

Yet, strange to say, we find people whose ignorance is inexcusable, speaking as if some laxity in the matter of criminal justice towards this particular class of persons were of little consequence, since they are judged by common consent to be in a manner beyond the pale of society. Yet surely a man who has murdered some half-dozen persons, after the manner of William Palmer, may be equally considered as beyond the pale of society; yet in this case, and all similar cases, every possible precaution is taken in the matter of his trial; and the character alike of our laws, and of those who dispense them, is felt to be involved in the justice of the verdict given. Such are the necessary and proper advantages granted by our laws to the most deeply dyed criminal who happens to be of the male sex. It points to something radically wrong, both in human nature and in our society, when the mere accident of the criminals being in this case women makes it possible for such illogical and loose notions to prevail in regard to what legal justice owes them. Again, let us call the reader’s attention to the fact, that no amount of heinousness in the nature of those offences with which any class of the community may be charged, ought to deprive that class of the due exercise of impartial justice in regard to them. The creation of a proletariate class in a nation insures that nation eventually being smothered in its own mud.

I shall conclude this portion of my subject by drawing attention to the following exhaustive passage from Lieber, descriptive of the characteristics of a just form of criminal trial, and to the contrast which it presents in every particular to the laws which we condemn.

“Among the points which characterize,” says Lieber,[71] “a fair, just, and sound penal trial, according to our advancement in political civilisation, we would designate the following:—No intimidation before the trial, or attempts by artifice to induce the prisoner to confess—a contrivance which protects the citizen even against being placed so easily in a state of accusation;[72] the fullest possible realization of that principle, that every man is held innocent until proved to be otherwise; bail; a total discarding of the principle, that the more heinous the imputed crime is, the less ought to be the protection of the prisoner, but, on the contrary, the adoption of the reverse; a distinct indictment, and the acquaintance of the prisoner with it sufficiently long before the trial to give him time for preparing the defence; the accusatorial process, with jury and publicity, therefore an oral trial, and not a process in writing; counsel or defensors for the prisoner; a distinct theory of evidence, and no hearsay testimony; a verdict upon evidence alone, in pronouncing guilty or not guilty; a punishment in proportion to the offence, and in accordance with common sense and justice; especially, no punitory imprisonment, which must necessarily make the prisoner worse than he was when he fell into the hands of Government,[73] nor cautionary imprisonment before trial, which by contamination must advance the prisoner in his criminality;[74] that the punishment adapt itself as much as possible to the crime and criminality of the offender; that nothing but what the law demands or allows be inflicted, and that all the law demands be inflicted—no arbitrary injudicious pardoning,[75] which is a direct interference with the government by law.”