FROM THE BOUNDARY
Where does prostitution stand in the grand scheme of sin? Is a prostitute more death-worthy, in St. Paul’s sense, than a gay man? Well, LGBT people do get a special mention in ‘Romans’, it’s true, and if Paul is right, our prostitute, in exchanging truth for lies, might just end up lesbian by divine intervention. But otherwise, in the ‘unrighteousness table’ there’s nothing to choose between them. What of the law? Granted that both a gay person and a prostitute might be said to offend Christian morals, does the Criminal Law treat them equally too?
Many readers will remember the great national debate, 20 years ago, on ‘de-criminalising’ prostitution, this during the legislative process to reform our then vagrancy law. The debate was, in fact, much ado about nothing. From one perspective, there was nothing to de-criminalise. Under the old Vagrancy Act 1897, a ‘common prostitute’ was only guilty of an offence if she wandered in a place of public resort and behaved in a riotous or indecent manner. The Minor Offences Act 1998 expunged the reference to a ‘common prostitute’, basically on the ground that it was insulting, and made it an offence for any person (male or female) to act in that way. The Vagrancy Act also made it an offence for a ‘common prostitute’ to loiter in the street and importune for the purpose of prostitution. The Minor Offences Act makes it an offence for any person to importune for that purpose. ‘Importuning’ (as distinct from mere ‘soliciting’ : ‘Are you looking for a girl?’) essentially entails an element of persistent conduct – making yourself a nuisance. In other words, the new Act, as also the old, seeks to penalise those activities of prostitutes which are, or might become, public nuisances, and which, as the Wolfenden Report ( 1957 ) expresses it, “affronts the sense of decency of ordinary citizens”. The law here is not legislating morals. It doesn’t strike at women who wish to make a living by the use of their bodies. A prostitute who stands in the street in Bridgetown to attract clients commits no offence. Nor does she if she physically lends her body for reward. Prostitution is thus not of itself an offence.
Section 19, Sexual Offences Act raises more difficult questions which I won’t bore you with. In essence, it forms a part of a bundle of sections which relate to trading in or exploiting prostitution. Police practice here is to rely on the Minor Offences Act provisions anyway.
The upshot is that morality and criminality are not co-terminous. As Mill said in ‘On Liberty’, “the only purpose for which power can be rightfully exercised … is to prevent harm to others”. However, in ‘Liberty, Equality, Fraternity’, Sir Fitzjames Stephen, a noted Criminal judge, rejected Mill. “There are acts of wickedness so gross that self-protection apart, they must be prevented as far as possible at any cost to the offender.” That theme was taken up by Lord Devlin in his reply to the Wolfenden Committee Report on Homosexual Offences and Prostitution 1957 in ‘The Enforcement of Morals’. There is a public morality, he argued, which cements society together which the Criminal Law may be used to preserve. “The suppression of vice is as much the law’s business as the suppression of subversive activities.” Homosexuality is, he said, “a vice so abominable that its mere presence is an offence”. It is the man in the jury box, with all his “intolerance, indignation and disgust”, and whose feelings are embodied in “the morality of common sense”, who must decide. Yet, what if those feelings are uninformed and rooted in bigotry, ignorance and superstition? But listen: at the end, Devlin wrote to ‘The Times’ in support of the Wolfenden reforms!
As we know, as a consequence of the Wolfenden Report the British Parliament, in 1967, legislated that homosexual acts in private between consenting adults were no longer criminal. The function of the Criminal Law, Wolfenden had reported, was to “preserve public order and decency, to protect the citizen from what is offensive and injurious and to provide sufficient safeguards against exploitation”. It was not its function “to intervene in the private lives of citizens”. Unless society, acting through the law, makes a deliberate attempt “to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business”.
Well, where in the light of all this do we stand on the buggery provision (section 9) of our Sexual Offences Act, carrying with it imprisonment for life though the act took place in private between consenting adults? In the light of the above, it makes little sense and might even be regarded as wicked. You may take a different view. But if you do, keep in mind that heterosexual buggery seems very popular these days, and ask yourself how section 9 squares with the law’s treatment of prostitutes. And, if you’re really bold, ask yourself whether the alleged sin of gayness was really ordained by God or only by men.
Go safely, then – until the next time.
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