nm1157: today's topic is the law relating to prostitution er which is also er 
to be the topic of our seminars next week as you will see er the focus next 
week is really on the issue of policy what should the law's policy be in 
relation to prostitution er and by policy we mean of course what should the law 
be doing in order to deal with any problems if any are found relating to 
prostitution er in order to er alleviate such problems and make the world 
better which is what policy is all about er because we're going to be 
discussing policy in seminars er the lectures i'm going to give you are going 
to focus very much on the law er and i suppose i will be perhaps holding back 
from policy issues what this means of course is that you mustn't assume that 
all the answers to next week's seminar are to be found in today's lecture er 
today's lecture is going to give you some of the material for next week's 
seminar but you're going to have to go further er in the reading which we 
provide for you and 
indeed in your own thoughts right prostitution and the law er the first 
question i suppose is what is the law trying to achieve er in relation to 
prostitution er if you remember we talked about the rationale of offences er in 
relation to other offences and er it's fairly easy to work out what the law is 
trying to achieve in relation to murder or rape or theft the objective is 
obvious what should the law try and achieve in relation to prostitution well i 
i think when much of our law was formulated er this issue may not have been 
addressed in precisely those terms however er there was a large scale review of 
the law er between nineteen-fifty-three and nineteen-fifty-seven er by a 
committee chaired by er a man called Lord Wolfenden er which had the job given 
the job by government of reviewing er the law relating to er homosexual 
offences and prostitution and er in order to review the law the Wolfenden 
committee started out by er trying to think about what the law should be 
trying to achieve in this area er and it came up with a formula er which i've 
quoted on the sheet er but which i will read to you now Wolfenden said 
committee said er the role of the law should be to preserve public order and 
decency to protect citizens from what is indefensive or injurious and to 
provide sufficient safeguards against exploitation and corruption of others 
particularly those who are especially vulnerable because they are young in mind 
or body inexperienced or in a state of special physical official or economic 
dependence er the committee then went on and said it is not in our view the 
function of the law to intervene in the private lives of citizens or it is not 
the function of the law to seek to enforce any particular pattern of behaviour 
farther at least than it is necessary to carry out for the purposes we have 
outlined what is the committee saying there er and when we've worked out what 
the committee is saying can we sort of proceed from that to 
work out what the law should be first of all they they they say it is the role 
of the law to preserve public order and decency and i think first of all the 
the reference to public order er indicates if you like that er the world can be 
divided up into public places which are shared by a number of us as citizens 
and private places which are occupied by us alone or those we choose to be with 
er i suppose the legal theory of the public place er which the Wolfenden 
committee expressed is that because the public place is shared er it's 
important that the use that any individual puts the public place to doesn't 
unnecessarily infringe on the way others wish to use the public place i suppose 
in relation to prostitution er the Wolfenden committee would be thinking about 
ways of er practising prostitution which are carried in public soliciting 
particularly on the street and when the Wolfenden committee talked about 
preserving public order and decency er they were probably 
saying well er soliciting in a public place has some impact on those around er 
other people mightn't want to see it they might consider it indecent er that 
might be a good reason for criminalizing soliciting for prostitution in public 
because public space has to be shared the other side of the coin of course to 
the notion of a public place er is private place and er if i just jump to the 
end of the quote from Wolfenden er the committee said that it's not the 
function of the law to intervene in the private lives of citizens or to enforce 
any particular code of conduct the committee seems to be saying okay in public 
you've got to act in a way that keeps everybody else happy but there is a 
private sphere within the private sphere the law should respect autonomy 
shouldn't try and enforce some code about what should or shouldn't be done 
develop a sphere in which you can make your own decisions er if we go back to 
the the key er the core of the quote rather we find 
that er the Wolfenden committee were concerned about providing sufficient 
safeguards against exploitation and corruption of others now those words are 
loaded aren't they exploitation and corruption they sound bad er if i went out 
into the streets in namex today and i said should the law try and prevent 
exploitation and corruption people would probably say yes they are very 
problematic notions though er particularly when we think about them in terms of 
the Wolfenden committee's other comments what does exploitation mean i suppose 
exploitation means using somebody else for some purpose of your own er but of 
course exploitation in that sense occurs all the time doesn't it er you're 
exploiting me because managing to stay awake during this lecture writing lots 
of notes repeating it all in the exam is a necessary stage to you getting that 
much desired B-M-W and stripy suit in a few years' time [laughter] er so you 
are exploiting me the university's exploiting me er by 
employing me er i exploit er i suppose you could say i exploit whoever it is 
who cooks my food er or or i exploit the person who er shears the sheep in New 
Zealand or something to provide the jumper jumper i wear [laughter] whatever so 
exploitation happens all the time and in fact it's just er an aspect of modern 
society isn't it the whole idea of society is we live together we interact 
react we complement each other in the functions we perform you can call it 
mutual exploitation but it's also a normal aspect of modern society so 
exploitation is problematic er in relation to prostitution is it really clear 
who exploits who well er some people would argue that the male customers 
exploit er the woman who provides the prostitution services if however er you 
look at some er feminist analyses of prostitution they would disagree with this 
er if you look at er a book called Working Women by Arlene Macleod er when she 
was at this university er she talked to prostitutio-, prostitutes and 
prostitutes say oh we're in this job because we like it er it's by far the most 
satisfactory way for us to earn a living to make a reasonable amount of money 
to keep control of our own lives and to have the sort of flexible lifestyle we 
want if you ever ask prostitutes why they do the job they're not admitting to 
being exploited very often many of them it's just a rational choice er 
according to the options available to them er so it's not absolutely clear that 
the male customer exploits the woman and indeed er you might say it's the other 
way round er if you look at the areas where prostitution is is carried out you 
may say well here's the man gone for a drink after work on his way home er he's 
presented with a temptation er is that the woman exploiting him so exploitation 
is a problematic concept er exploitation can also be seen er in the 
relationship between the so-called er pimp or ponce who is a sort of 
stereotypical figure er the man who lives off the earnings of 
prostitution and er if one went further through the Wolfenden committee report 
er you would see that that committee did think it appropriate to maintain 
penalties on er men who lived off the money women made by prostitution if you 
like the the man figure was seen as an exploiter er but again that is rather 
problematic isn't it er all of us who earn money er well for many of us who 
earn money er we choose to support somebody else very common for er husbands or 
wives to support their partners isn't it where one person in the family works 
certainly common for adults to support er fo-, fo-, for parents to support 
grown up children so er we don't say oh well there's exploitation in this 
relationship just because one person who earns money pays the expenses of the 
family or or the couple the problem er exploitation then is problematic er it's 
also true when we come to look at the law relating to er living off the 
earnings of prostitution that er the offence of living off can be 
provi-, er can be committed where a person who receives money from the 
prostitute provides some sort of service er modern prostitution may be 
committed through er massage parlours or escort agencies both sorts of 
organization may be fronts for prostitution er the people who organize those er 
those er businesses can be found guilty of living off the earnings of 
prostitution er but are they exploiters er certainly many would argue that 
they're not they're providing necessary ancillary business services in order to 
allow a prostitute to carry out her or his business er in a way which is safe 
and makes er business sense makes commercial sense so again exploitation is a 
tricky concept isn't it er corruption's a tricky concept as well i think the 
the essence of corruption er is er exerting an influence on somebody which in 
some way degrades them or makes them worse er and i suppose here the Wolfenden 
committee when they when they said the law should deal with corruption er was 
probably 
concerned with er an individual who might recruit er others into prostitution 
persuade them perhaps with offer of high earning er or a glamorous lifestyle or 
whatever to take part in prostitution well er again i think many people have a 
sort of gut reaction that that is a bad thing to do there is a problem though 
which is this that we can only call that corruption if we say that the non-
prostitute lifestyle is fine and the prostitute lifestyle is in some way bad or 
degraded we're talking about corruption we're talking about an in-, an 
influence making something worse or degrading them so we must be making a value 
judgement mustn't we that you're a young person coming to university that's 
fine if somebody persuades you to go and work as a prostitute to earn money to 
support your university career in some way you've been degraded and of course 
once you make that value judgement er aren't you infringing one of the 
Wolfenden committee's later principles which is 
that er the law should not seek to enforce any particular pattern of behaviour 
or are you also infringing the Wolfenden committee principle that er there 
should be an area of private life in which the law should play no role er as i 
said when we talk about saying there's an area a private sphere in which the 
law should not er i-, i-, in which the law should not involve itself we're 
really talking about protecting autonomy and autonomy means though the right 
and ability to make your own choices about how you lead your life so it's very 
difficult to square this notion of preventing corruption with this idea of 
letting individuals ultimately make their own choices er at the end of the day 
i suppose if autonomy is to be real and valuable it must be autonomy which 
allows you to make bad choices as well as good choices mustn't it that's the 
whole point of autonomy it is up to you the the one right you you the essential 
right you have to make your own choices about your own 
life it would be very strange if you said oh you've got autonomy as long as you 
make the right choices if you start to decide to do anything bad oh no then you 
lose your autonomy that's not autonomy at all is it it's a sham well that's a 
brief introduction to the er to the er philosophical underpinnings of our 
current law er as we'll see when we go through the law er some of these 
contradictions which i've suggested become more and more apparent let's move on 
and talk about what is a prostitute rather interesting isn't it that er if er 
anything is to be the subject of law if it is to be something that the law 
deals with er it must be possible to define it and if we are going to have laws 
relating to prostitution er which distinguish er a prostitute from other people 
and treat a prostitute differently from other people we do need a some 
satisfying reason for that we we've got to have a reason for treating a 
prostitute differently haven't we and that suggests that 
we must be able to create a definition of prostitution and a definition of 
prostitute that distinguishes the prostitute and his or her practice from the 
conduct of other members of society which is approved of or at least tolerated 
yeah if we're going to have criminal law relating to prostitution there must be 
some way of defining prostitution that makes it different from the run of 
ordinary conduct let's have a quick look at what the law says about the 
definition of prostitution and i'm going to look at er a run of four cases er 
all of the references to the-, these will be found on your handout which will 
er arrive in due course i wonder if it really will be delivered here maybe not 
who knows er first case was a case in nineteen-eighteen called De Monk De Monk 
nineteen-eighteen er this case er concerned er a prosecution of er a lady er 
who was ch-, charged with an old offence of er encouraging the prostitution of 
er somebody else so so she was charged with 
encouraging prostitution and er the evidence against the defendant was quite 
simple er the defendant was the mother of a fourteen year old girl and she in 
return for money had allowed er a male visitor to their home to spend some time 
er with this girl in an upstairs bedroom that was the evidence money changed 
hands male visitor just allowed to go to an upstairs room with a fourteen year 
old girl er nobody's saying what went on up there er in her defence er the 
mother had the girl medically examined er and medical evidence suggested that 
the girl was a virgin who apparently had not had full sexual intercourse so the 
argument was prostitution is surely about selling the act of sex this young 
child apparently hasn't had sex sex can't have taken place therefore there 
cannot have been an act of prostitution er the court dismissed that argument er 
and they said this they said prostitution is proved if it is shown that the 
woman offers offers her body commonly for acts of 
lewdness for payment in return i should say mysteriously that the the phrase 
acts of lew-, lewdness L-E L-E-W-D-N-E-S-S seems to have been missed off the 
sheet but it it should be there er what they were saying was that i suppose the 
court was satisfied that this bloke wasn't going up to this upstairs room with 
this young girl er to look at her stamp collection and as as long as the court 
was satisfied that some sort of lewd sexual activity took place er that could 
be prostitution even if there was not full sexual intercourse er there's a 
problem here isn't there on the one hand er i'm i'm sure we all recognize there 
are many different ways of getting sexual gratification er and indeed in 
relation to youngsters of that sort of age there are many acts which would be 
considered an indecent assault on a fourteen year old if committed by somebody 
else but if you move away from the sort of bedrock of sexual intercourse there 
is a question well what is an act of lewdness for 
sexual gratification er we seem to be defining the act of prostitution 
according to er one's motives according to what sort of feelings one has in 
relation to an act but it does become a bit tricky doesn't it er i i've often 
puzzled if there's any difference between sexual and other pleasures er pe-, 
people like to have bodily contact in various ways don't they er and enjoy it 
and what about rugby players getting involved in a rugby scrum [laughter] er 
they may or may not get some sort of pleasure from [laughter] just the sort of 
of closeness and camaraderie and sweat of a rugby scrum er who's to say what i-,
if that gratification is in any way different from other types of pleasure to 
sexual there are people who like to er dress up in nappies and [laughter] er be 
given er baths by persons who pretend to be nannies and things now er for some 
reason or other we consider that to be a form of sexual gratification but is it 
really is it or or is it really just a 
gratification of some other need it's hard to say isn't it er you know if you 
go for a an ordinary straightforward massage in order to cure your aching 
muscles you may find that very enjoyable and relaxing is that i-, is that 
clearly different from other sorts of behaviour you might commit that er 
indulge in with a partner which might be identified as sexual it's tricky isn't 
it er if we have moved away from sexual intercourse er of course we may of 
course er as as well question well what the l-, what's the law all about er one 
possible er rationale for the laws relating to prostitution which have been 
offered er focus very much on the sexual act er one argument sometimes put by 
er reli-, religious bodies is that er sex is something which should be er 
indulged in in a a relationship linked to the raising of a family er linked to 
the er exchange of love between parties and that prostitution degrades that er 
sort of sacred relationship by putting a price on it they also degrade 
particular relationships because the effect of having prostitution around may 
be to tempt one of the parties to a sort of pukka loving relationship to stray 
and to be disloyal but if the if if the reason for outlawing prostitution 
focuses on some sort of sacred notion of the sex act then why extend 
prostitution to other sorts of quasi-sexual behaviour there's a question there 
isn't there okay let's move on let's er jump fifty years or so to a case called 
Webb in nineteen-sixty-four er what happened in Webb was that er er there was 
er an attempt to er entrap er some er people who were running a er massage 
parlour and er er a p-, police officer went to the massage parlour and er at 
the massage parlour he was offered er sexual services in the way of 
masturbation er in the er time-honoured fashion the police officer made his 
excuses and left [laughter] er but then a a prosecution was brought against the 
er proprietor of the massage parlour er real-, i-, i-, er for er i think er 
keeping 
a brothel and of course you can only keep a brothel we'll look at the offence 
later on if it's premises where prostitution is practised the big question in 
the Webb case was you've got premises masturbation for money takes place there 
does that amount to pros-, to pros-, to prostitution well er obviously on the 
basis of the case we've already looked at the case of De Monk er it doesn't 
have to be absolute sex but other acts of lewdness would do and i suppose 
masturbation's pretty lewd 
nm1157: okay so so the fact that it that that it was something other than 
sexual intercourse wasn't a defence in this case the defendants however went a 
little bit further and they said well er the nature of masturbation is 
something that the woman does to the man it's not a case of the woman offering 
her body for acts of sexual gratification er rather er you know it's not the 
man doing something to her a-, as apparently De Monk it's the man who's passive 
and she's 
doing something to the man they suggested that made a difference well er Lord 
Parker the er Lord Chief Justice and indeed that's what L-C-J means Lord Chief 
Justice er got rather carried away in dealing with this case he said er 
[laughter] prostitution includes offering to participate in physical acts of 
indecency for sexual gratification of men it cannot matter he said whether she 
whips the man [laughter] or the man whips her it cannot matter et cetera now 
the funny thing about this is that there was no question of anybody whipping 
anybody [laughter] so er this little quote i'm afraid er er in-, indicates more 
about what was going on in good old Lord Parker's mind at the time [laughter] 
rather than the facts of the case er but again what he's really saying is that 
er i-, it doesn't matter who does what to whom as long long as there is some 
sexual act and again that does lead us to to question er what what is what is 
it about prostitution we don't like er for people who've argued that 
prostitution is exploitative er i think w-, one of the one of the strands of 
the argument is that the woman is in some way violated in the act of 
prostitution for money clearly if if the w-, if the woman does the act to the 
man there's really no violation of her in that is there er and again we begin 
to slide away from the the bedrock of of make it be-, it being clear why we er 
in some way prohibit prostitution well i'll tell you what let me stop there for 
er a handout dishing out interlude and i'll i'll apo-, apologize to our 
cameraman namex for er breaking things up is that all right namex 
nm1157: okay two handouts gone round er the orange and the er yellow the yellow 
relates to today's lecture there's a a third handout which is called namex 
Criminal Statutes er instead of dishing those out there's a box of 
them er that is a white quite thick document there's one by each of the exit 
doors er if you could grab one as you go out that would be handy and i will put 
er if anybody doesn't get one i'll put the pile in the law school okay so grab 
the statutes as you leave right we were talking about the definition of 
prostitution er the definition has been further considered er in a couple of 
recent cases er first of all for the case of McFarland in nineteen-ninety-four 
er this case concerned er somebody who was pretending to be a prostitute in 
order to obtain money by deception er fairly common that er to to for for women 
who are involved in prostitution or their accomplices to er use a promise of 
prostitution as a way of obtaining money from er gullible customers er it's 
rather a safe er area in which to obtain money of course because er you would 
need a bit of nerve to go and stand at the st-, counter at the police station 
and say well er er this bloke met me in a club and said would you m-, 
like to meet er a girl for a hundred pounds and i said yes and i handed over 
the money and then nothing happened you know people tend to er not want to 
admit to the police that they resort to prostitutes er however in this case er 
i think probably by entrapment er it became apparent that er there was a scam 
whereby er er a woman er pretended to be offering herself for active 
prostitution er once she'd obtained money from her customers she would then 
disappear out of a side door er and no act of no act of sexu-, wo-, whatever 
would take place er the question arose in this case whether what she did er 
could be considered an act of prostitution apparently offering herself for 
sexual services for money even though er there was no intention on her part to 
carry out such sexual services er the court er said yes this could amount to 
prostitution and they said er the definition of prostitution refers to a woman 
who offers sexual services in return for money indeed that 
terminology had been used in the earlier cases er and they said that er the 
offer was not dependent upon any intention to carry out the act well i suppose 
this case is rather puzzling whereas er the sort of simple broad question 
should this sort of behaviour be criminalized pretending to offer sexual 
services in order to obtain money er maybe most people would say yes or some 
people might say well it's the customer's own silly fault but but either way we 
can see some reason for criminalizing this conduct whether however this conduct 
should be categorized as er prostitution and criminal on that ground rather 
than deception er an offence normally seen as protecting personal property is 
another matter er i think to some extent the court was influenced by er the 
sorts of offences that may be committed in relation to prostitution er as we 
shall see er the most visible offence relating to prostitution er relates to 
loitering or soliciting on the street er and i 
suppose the court might well have been mindful that er if they said well it's 
er you're not a prostitute if you never intend to go through with the act might 
provide a rather easy excuse to women who are picked up loitering or soliciting 
rather strange if a woman was picked up on the street for this offence and she 
said oh no oh i'm not going to have sex with these people i'm just trying to 
rip them off [laughter] er to some extent i think the court may have been 
influenced in extending the definition of prostitution er by that need to try 
and prevent an easy loophole or an easy way out er finally er we come to a case 
called er D-P-P which of course means Director of Public Prosecutions er 
against Thaw in nineteen-ninety-four er the defendant in this case was a man 
hanging around trying perhaps to persuade people to have some form of sex with 
him for money and he was charged with the offence i've just mentioned of 
loitering or soliciting in 
a public place for the purpose of prostitution got to the magistrates' court 
and er the chairman of the bench looked over his spectacles at this person in 
the dock and said that's not a prostitute that's a man [laughter] case 
dismissed er well the the prosecutor the s-, Crown prosecutor was rather er 
rather unhappy about this gone to all the trouble of arresting this person 
taken a statement all that lot brought them to court got the Crown prosecutor 
there and the case was chucked out just on the the basis of the defendant's 
gender so er the c-, the case went to the divisional court that's the case the 
the the court that hears appeals on questions of law from the magistrates' 
court er and indeed the divisional court confirmed er that the magistrate had 
been quite right er the er divisional court looked at the statute er they 
looked at the report of the Wolfenden committee that had proposed a 
reformulation of the loitering and soliciting offence and they said 
that clearly the term common prostitute is supposed to refer to women er and 
they said it was clearly the intention of the Wolfenden committee who proposed 
the reformulation of the offence that er it should be the nuisance caused by 
women er which should be the object of the offence well what could we say about 
this er i suppose a s-, simple er very crude comment might be er the law seems 
to more concerned with stereotypes rather than conduct if we go back to my 
early lectures when we talked about an objective of the of the criminal law to 
avoid harm er it's true isn't it that if a particular sort of conduct can be 
said to be harmful in some way it's rarely going to make much difference 
whether the conduct is committed by a man or a woman er or indeed by any other 
sort of different categorizations of the human race you might use i mean either 
the conduct's harmful or it's not and you might say the same about er loitering 
in the street for prostitution er if loitering 
in the street or soliciting in the street is something which we as a community 
don't like to see which we think degrades our public places we find indecent er 
surely it's going to do so whether or not whether it's a er a woman who who 
does it or a man or a group of women or a group of men er so that's very 
strange er why should the law focus on stereotypes well i think it's true 
historically that er it was the woman who was the object of the law er it's 
rather interesting that er in the middle of the nineteenth century er there was 
er an attempt to er deal with some of the problems associated with prostitution 
er through some acts called the Contagious Diseases Acts very interesting acts 
er the Contagious Diseases Acts were focused on er naval and army bases and 
they 
provided for er women who were found to be er involved in prostitution in the 
vicinity of naval and army bases they provided for these women to be forcibly 
taken from the streets to be subject to medical checks for er sexually 
transmissible diseases er and subject to compulsory cures if they were found to 
be infected and the law impacted on the women only well er it's rather 
interesting er the Contagious Diseases Acts were rather controversial and er a 
commission was set up to look into the operation of the acts and one of the 
issues which the com-, commission considered was whether the compulsory medical 
checks should apply to both sides of the prostitution equation er this was 
quickly dismissed they said well of course you can't do that the men are only 
er giving bent to quite 
natural desires er whereas it's the degrading women who are committing the 
unnatural act of offering themselves for sex so if you like way back in the 
middle of the nineteenth century we have two very clear stereotypes of the man 
well who's to blame him you know he's just lumbered with this sort of er sexual 
desire built into to his nature the woman on the other hand is a depraved 
person who's exploiting the unfortunate man er and er dragging him into er evil 
ways and i think it's true historically that er prostitution has focused on the 
activities of women and not men perhaps we'll return to that next time thanks 
for coming don't forget to er to pick up your namex statutes as you leave