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3.1 The purpose of this Chapter is to provide a background to the discussion of the different legal models for addressing prostitution. As such, it is not a comprehensive exposition of the history of prostitution.
3.2 Prostitution is habitually referred to as ‘the oldest profession’ in the world. It has existed in every society for which there are written records.[55] Jordan notes that the earliest references are to the institution of ‘temple’ or sacred prostitution, dating from about the year 2000 BC, and that it is likely that such prostitution co-existed with commercial prostitution.[56]
3.3 ‘Temple’ prostitution can be described as a religious practice related to fertility rites, where women were required to attend the temple and have sexual intercourse with any man who offered her money.[57] Sanger explains, for example, that every Babylonian woman was required to ‘prostitute’ herself once in her lifetime in the temple of the goddess Mylitta. Once inside the temple grounds, the woman was not allowed to leave until she had paid her debt, and ‘had deposited on the altar of the goddess the fee received from her lover’.[58]
3.4 However, this service to the goddess did not have the connotations of oppression or loss of social recognition that it might have when measured against conventional norms.[59] In Babylonian society, for example, prostitutes were appreciated for fulfilling social or spiritual needs, and they occupied a respected position in society.[60]
3.5 The main antecedents of contemporary forms of prostitution (and legal measures to address prostitution) were to be found in Ancient Greece and Rome.
3.6 Pomeroy recounts that prostitution flourished in Greece as early as the Archaic period (800-500 BC).[61] In the 6th century BC, the Athenian lawgiver Solon formulated extensive legislation covering many aspects of daily life. His legislative programme included the establishment of state-owned brothels staffed by slaves.[62] These state-owned brothels were called Dicteria, and the female slaves working there Dicteriades.[63]
3.7 However, not only slaves were prostitutes. According to Sanger, at the height of Athenian prosperity, there were four classes of prostitutes.[64] The highest in rank were the Hetairae, or ‘kept women’, who lived in the best parts of the city, and exercised considerable influence over the politics of the state. Many of these women, in addition to physical beauty, had had intellectual training and possessed artistic talents. These attributes made them more entertaining companions to Athenian men at parties than their legitimate wives.[65]
3.8 Next in this ’hierarchy’ were the Auletrides, or flute-players, who were dancers as well.[66] Female flute-players were a common accompaniment to Athenian banquets, and these flute-players ‘did not wholly rely on their music for their successes.[67] They also provided sexual services to banquet-goers.[68]
3.9 The third group were the concubines, who were slaves owned by rich men with the knowledge of their wives, ‘serving equally the passions of their master and the caprices of their mistresses’.[69]
3.10 The fourth group were the Dicteriades, who were regarded as the lowest group of prostitutes. In Solon’s time, the Dicteriades were kept well apart from ‘respectable’ women. They were originally bound to reside at the Piraeus, the sea-port of Athens situated some four miles from the city, and they were forbidden to walk out by day.[70] The Dicteriades were not allowed to mix in religious ceremonies or to enter the temples, and they forfeited the rights of citizenship they may have had by virtue of their birth.[71] In addition, the children of prostitutes were also penalized: they could not, for example, inherit property.[72] Solon’s laws continued to exert considerable influence over the lives of Athenian women into the Classical period.[73]
3.11 One of the ways in which ‘respectable’ women were distinguished from prostitutes was through their dress. The material used by ‘respectable’ women was usually wool or linen, while prostitutes wore saffron-dyed material of gauzelike transparency.[74] The most singular characteristic by which a Greek prostitute was known was her hair: prostitutes dyed their hair a flaxen or blond colour.[75] Frequently a flaxen wig was substituted for the dyed hair.
3.12 All prostitutes were required to pay a special tax to the state. The collection of this tax was subcontracted to speculators, and it yielded a significant income to the state fiscus.[76]
3.13 Although the Roman laws specifically addressing prostitution date from the reign of the Emperor Augustus, Sanger estimates that prostitution must have become established at Rome at about the beginning of the 3rd century BC.[77] According to the writings of Tacitus, prostitutes had been required from the earliest times to register themselves in the office of the aedile (a junior magistrate whose duties included supervision of the markets and trade).[78] The aedile issued prostitutes a licence (the so-called licentia stupri), ascertained the sum that they were to demand from their clients, and entered their names in his roll.[79] Once registered as a prostitute, it was impossible for a woman to have her name removed, even if she eventually married and became the mother of legitimate children.
3.14 One of the duties of the aediles was to arrest, punish and evict from the city all unregistered prostitutes. Sanger explains that this regulation had little practical impact: during the time of the empire there was a large and well-known group of unregistered prostitutes.[80] In contrast to the registered prostitutes (meretrices), the unregistered prostitutes or prostibulae did not pay any taxes.
3.15 Both slaves and free persons worked as prostitutes in brothels (lupaniaria), inns or baths open to the public.[81] Prostitutes who did not have the security of a brothel worked out-of-doors under archways.[82] As in Greece, the law prescribed the dress of prostitutes (again with the purpose of distinguishing prostitutes from ‘respectable’ women).[83]
3.16 The Emperor Augustus introduced a series of laws that directly affected prostitutes. The lex Iulia et Papia prohibited prostitutes and pimps to marry partners outside the ranks of ex-slaves.[84] The lex Iulia de adulteriis coercendis exempted prostitutes from the penalties imposed for illicit sexual relations such as adultery. McGinn notes that this formally set prostitutes aside as a category of persons without honour.[85]
3.17 In 40 AD the emperor Caligula instituted a special tax on prostitutes, requiring them to pay, from their daily earnings, the amount they earned for one act of sexual intercourse.[86] This tax was enormously profitable, and the state eventually become so dependent on the revenue generated in this manner that despite the embarrassment it caused the Christian emperors, it was not abolished until 498 AD.[87]
3.18 The attitude of the early Christian church to prostitution was shaped by the belief that sexual intercourse should take place only within the ambit of a lawful marriage, and then only for purposes of procreation. Any other sexual activity was sin.[88]
3.19 Although prostitution was therefore, by definition, immoral and sinful, it is significant that early Christian societies did not seek to outlaw prostitution.[89] The reasoning of the early church fathers was that however immoral, prostitution was also a necessary evil.
3.20 St Augustine, for example, expressed the belief in the fourth century AD that if one were to remove prostitution, ‘you will pollute all things with lust’.[90] He maintained that men’s sexual appetites cannot easily be maintained within marriage, and for this reason men need sexual outlets outside of marriage – otherwise they will become adulterers and destroy homes and families.[91] Society therefore needs to facilitate men’s access to prostitutes, while at the same time ensuring that the wives of these men remain faithful to their husbands. (The fidelity of wives was regarded as essential for men to be able to determine their own progeny for purposes of birthright and inheritance.)[92] The sentiments of St Augustine were echoed, nine centuries later, by St Thomas Aquinas (1225-1274), who stated:
‘[Prostitution] is like the filth of the sea, or a sewer in the palace. Take away the sewer, and you will fill the palace with prostitution... Take away prostitutes, and you will fill it with sodomy.’[93]
3.21 The European position from the Middle Ages onward was therefore that prostitution, although morally unacceptable, was tolerated. This resulted in legal mechanisms aimed at controlling and containing, rather than eradicating, prostitution.[94]
3.22 This approach can be termed ‘regulationism’ with reference to regulatory measures such as licensing requirements for brothels where prostitutes were subjected to, for example, forced medical examinations and restrictions on their mobility.[95] These early attempts at regulatory measures can be seen as the fore cursors of the legal approach currently referred to as ‘legalisation’.
3.23 Jordan notes that by the 17th century, the practice of visiting prostitutes was so widespread that guidebooks to brothels were being produced and men could claim visits to prostitutes on their tax returns.[96] However, the Protestant reformers such as Luther and Calvin took a much stricter view of prostitution and condemned it outright as immoral.[97] They insisted on the suppression of prostitution by means of criminal sanction. This ‘more strictly moralistic approach’ took root especially in the United States and (to a lesser extent) in Britain.[98]
3.24 The British, while not taking the Continental approach of ‘stigmatised tolerance’, also did not concede to the Protestant demand of absolute prohibition.[99] Prior to the late nineteenth century, there were no common law criminal sanctions relating to prostitution, except for prohibitions on the keeping of ‘bawdy houses’.[100] Working as a prostitute or soliciting for purposes of prostitution was not a criminal offence.
3.25 However, in 1824 a Vagrancy Act rendered prostitutes ‘wandering in public places’ and ‘behaving in a riotous and indecent manner’ liable for punishment as ‘idle and disorderly persons’. In 1839 a police offences Act penalised prostitutes in London who loitered in public places ‘for the purposes of prostitution or solicitation’. These early attempts at legislative control were not completely successful. According to one estimate, by the 1860’s there were over 80 000 women working as prostitutes in London.
3.26 From 1864 onwards, a series of Contagious Diseases Acts were passed (1864, 1866 and 1869). This legislation, which was promoted by the military and medical establishments in an attempt to contain the spread of venereal diseases primarily among enlisted men in garrison towns and ports[101] required ‘common prostitutes’ to be registered as such and to present themselves for a fortnightly internal examination.
3.27 If found suffering from gonorrhea or syphilis, a prostitute could be interned in a certified lock hospital (a hospital containing venereal wards) for a period not exceeding nine months.[102] Any woman could be identified on the word of a police official as a ‘common prostitute’, and therefore any woman (especially a working class woman) on her own in a certain area at a certain time could be detained and forced to submit to the internal examinations.[103]
3.28 The Contagious Diseases Acts soon became the subject of an intense campaign led by the early feminist Josephine Butler. Butler and her fellow campaigners opposed the then-current views of the prostitute as the ‘fallen women’ or ‘sexual deviant’ and rather saw prostitutes as victims of male vice, to be rescued and rehabilitated rather than policed and punished.[104] They objected to the Contagious Diseases Acts for what they perceived to be state recognition of a ‘double standard’ of sexual behaviour for men and women. They also criticised the Acts for giving the state additional powers to police and control the lives of all women, especially working class women.[105]
3.29 This approach, referred to as the ‘abolitionist’ approach, (due to the attempts to abolish not only the offensive Acts but also prostitution itself), is to be distinguished from the competing view of regulationism found in European and American approaches to prostitution. While Pre-Victorian regulation was based on the religious / moral notion of the prostitute as ‘a fallen woman’, a new rationale for regulation was found in the Victorian age in the science of sexuality, which perceived of the prostitute as a sexual deviant and spreader of diseases.[106] The Contagious Diseases Acts were therefore manifestations of this regulationist approach.
3.30 After the final repeal of the Contagious Diseases Acts in 1886, the abolitionist campaign eventually shifted its focus to repressive measures to end ‘male vice’, since this male vice was seen as the key to ending prostitution itself.[107] It should be noted that the abolitionists were joined in their early efforts by proponents of ‘social purity’ reform,[108] and as the abolitionist campaign succeeded in its objective of having the Contagious Diseases Acts repealed, the more repressive aims of the social purists came to dominate the agenda. Child prostitution and the perceived horrors of the so-called ‘white slave trade’ therefore commanded the attention of the social purity movement.[109]
3.31 Doezema explains that as European women began to migrate to other countries in search of work, stories of ‘white slavery’ began to circulate.[110] A number of highly publicised exposés of this trade served to generate widespread public attention. These accounts were often of a sensationalist nature:
‘The typical story involves white adolescent girls who were drugged and abducted by sinister immigrant procurers, waking up to find themselves captive in some infernal foreign brothel, where they were subject to the pornographic whims of sadistic, non-white pimps and brothel-master’.[111]
3.32 An essential aspect of the campaign against ‘white slavery’ was to evoke public sympathy for the victims. It was only by absolving the prostitute from all responsibility for her own situation, and by constructing her as a ‘victim’ that she could appeal to the sympathies of the charitable middle-class reformers:[112]
‘The “white slave” image as used by abolitionists broke down the old separation between “voluntary” sinful and/ or deviant prostitutes and “involuntary” prostitutes. By constructing all prostitutes as victims, it removed the justification for regulation.’[113]
3.33 It is interesting to note that only white women were considered ‘victims’ of the sex trade; for example, campaigners against the ‘white slave trade’ from Britain to Argentina were not concerned with the situation of Argentina-born prostitutes, nor were American reformers concerned about non-Anglo-Saxon prostitutes.[114]
3.34 At the end of the nineteenth century, international efforts to end the trade in white sex slaves were consolidated around a series of conferences on the prevention of trafficking. The first conference was held in Paris in 1895, with two more in London and Budapest in 1899. The first international instruments concerning the trade were created in 1904 and 1910 respectively,[115] followed by two further conventions on the traffic in women and children adopted by the League of Nations.[116] These instruments were infused with the abolitionist approach to prostitution.[117]
3.35 A number of contemporary historians have questioned the actual extent of the ‘white slave trade’. Their research suggests that the actual number of cases of ‘white slavery’ was very low,[118] and indicates that most of the ‘victims’ were actually prostitutes migrating in the hope of finding a better life elsewhere.[119]
3.36 It is therefore ironic that the original, emancipatory efforts of the abolitionist movement (dedicated to decrease state control over poor and working class women) evolved to support the ‘social purity’ agenda that would give the state new repressive powers over women.[120] The campaign against white slavery resulted in the adoption of, for example, the Criminal Law Amendment Act of 1885 in Britain that was used against prostitutes and working class women.[121]
3.37 Although the campaign against the white slave trade lost momentum after 1914 when the First World War effectively halted migration from Europe,[122] the abolitionist ethos informing the first international instruments on trafficking prevailed beyond this period.
3.38 This abolitionist approach held that the institution of prostitution in itself constituted a violation of human rights, similar to the institution of slavery.[123] This implied that no person, including an adult, was regarded as being able to give genuine consent to engaging in prostitution. The abolitionist view, as concretised in the early international documents, required governments to abolish prostitution through the penalisation of ‘third parties’ (procurers or pimps) who induced women into prostitution, whether openly, by deceit or through coercion and therefore profited from the transaction between the prostitute and the client.[124] The punishment of the prostitute was not envisaged, since she was regarded as a victim.[125]
3.39 The international agreements concluded after 1895 culminated in the adoption by the UN of the Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others in 1949.[126] This Convention, which combined and superseded the earlier agreements, has been the focus of considerable criticism on various levels, ranging from its basic underlying approach to prostitution to the inadequacy of its implementation mechanisms.[127]
3.40 After the adoption of the 1949 Trafficking Convention, feminist and international concern about prostitution and trafficking in women diminished for a while. Since the 1970’s, however, prostitution has again become a subject of international activism, starting with the emergence of prostitutes’ rights movements and organisations in Europe and the United States.
3.41 A ‘self-identified’ prostitutes’ movement began with the establishment of an organisation called COYOTE (‘Call Off Your Old Tired Ethics’) in San Francisco in 1973.[128] Jenness also recounts an incident in 1975 in Lyons, France, when local prostitutes took over a church and made public a list of grievances, as the official launch of the prostitutes’ rights movement.[129] The basis of this strike was a plea to be protected from police harassment and repression arising from a revision of French prostitution laws that had resulted in prostitutes being forced to work on the streets, leaving them vulnerable to an increased number of physical assaults and arrests.
3.42 The Lyons incident sparked a number of other events in France, all of which received unprecedented media attention. In the process, it raised public awareness of the problems of prostitutes, and also led to the formation and solidification of prostitutes’ rights organisations in the US and in Europe.[130] On an international level, the International Committee for Prostitutes Rights was established in 1985, and two World Whores Congresses were held respectively in Amsterdam, the Netherlands, in 1985 and in Brussels, Belgium, in 1986. At the First World Whores Congress, a ‘World Charter of Prostitutes Rights’ was adopted.
3.43 Kempadoo observes with concern that the international prostitutes’ movement has been dominated by Western prostitutes and activists, and she also notes the absence of Third World prostitutes’ organisations from, for example, the two World Whores Congresses referred to above.[131] However, the lack of Third World prostitute representation in the international arena began to be redressed in the 1990’s, as the international AIDS conferences provided a new platform for prostitutes to meet and organise.[132]
[55] V Jenness Making It Work (1993) at 2; WJ Schurink & LBG Ndabandaba ‘Sex-for-money in Durban and adjacent residential areas: an exploratory study of some features of prostitution’ Acta Criminologica (1991) at 34. See also WW Sanger The History of Prostitution 2nd ed (1913), who notes that ‘we can trace it [prostitution] from the earliest twilight in which history dawns to the clear daylight of today, without a pause or a moment of obscurity’ (at 1).
[56] J Jordan ‘Prostitution: the case for law reform’ Women’s Law Conference Papers (1993) at 205.
[57] J Milton ‘Prostitution: current debates’ in S Jagwanth et al (ed) Women and the Law (1994) at 137.
[58] Sanger (op cit) at 41.
[59] See S Schwarzenbach ‘Contractarians and feminists debate prostitution’ Review of Law and Social Change Vol XVIII (1990-1991) at 120-121.
[60] L Shrage ‘Should feminists oppose prostitution’ Ethics (1989) at 350 cited in Schwarzenbach (op cit) at 121.
[61] SB Pomeroy Goddesses, Whores, Wives and Slaves (1975) at 89.
[62] Idem at 89.
[63] Sanger (op cit) at 43.
[64] Idem at 46.
[65] Pomeroy (op cit) at 89.
[66] Sanger (op cit) at 46.
[67] Sanger (op cit) at 50.
[68] Sanger describes the activities of the flute-players in detail - see 50-53.
[69] Sanger (op cit) at 46.
[70] Idem at 46.
[71] Idem at 44.
[72] Ibid.
[73] Pomeroy (op cit) at 89.
[74] Idem at 83.
[75] Sanger (op cit) at 46-47.
[76] See Sanger (op cit) at 46, Pomeroy (op cit) at 89.
[77] Sanger (op cit) at 65.
[78] Ibid.
[79] Ibid.
[80] Idem at 68.
[81] Pomeroy (op cit) at 192.
[82] Idem at 202. The English verb ‘fornicate’ is derived from ‘fornix’, the Latin word for ‘arch’. See in this regard also Sanger (op cit) at 72.
[83] Idem at 75. See also McGinn (op cit) at 157 et seq.
[84] See McGinn (op cit) at 341.
[85] Ibid.
[86] Idem at 248-249.
[87] McGinn (op cit) at 250.
[88] Milton in Jagwanth, Schwikkard and Grant (eds) Women and the Law (1994) at 137; J Burchell & J Milton Principles of Criminal Law 2nd ed (1997) at 622. See also Genesis 38:15; Deuteronomy 23: 17 - 18; Joshua 2:1; Proverbs 5:3; 1 Corinthians 6:9, 1 Corinthians 6:15. In the Holy Qur’an, chastity outside marriage is emphasised. See S XXIV 33: ‘Let those who find not the wherewithal for marriage keep themselves chaste, until God gives them means out of His grace. ... But force not your maids to prostitution when they desire Chastity, in order that ye may make a gain in the goods of this life. But if anyone compels them, yet, after such compulsion, is God oft-forgiving, most merciful (to them)’.
[89] Jordan (op cit) at 206, Milton loc cit.
[90] De Ordine II.4(12), cited in Milton (op cit) at 138.
[91] Jordan loc cit.
[92] Jordan notes that St Augustine’s argument required two classes of women: the good, virtuous, sexually faithful wives to service men’s procreative needs within marriage, and prostitutes who could tend to their sexual needs outside marriage. This reasoning was the basis of the madonna / whore dichotomy, which continues to pervade contemporary gender dynamics (loc cit).
[93] Opuscula XVI, cited in Milton loc cit.
[94] Milton loc cit.
[95] J Doezema ‘Loose women or lost women? The re-emergence of the myth of white slavery in contemporary discourses of trafficking in women’ Gender Issues (2000) at 26-27.
[96] Jordan loc cit. See, however R Barnes-September Child Victims of Prostitution in the Western Cape (2000) at 8 contra.
[97] Milton (op cit) at 139.
[98] Ibid.
[99] Ibid.
[100] ‘Bawdy houses’ were places where ‘dissolute and debauched persons’ congregated and by their behaviour disturbed the public peace, thereby becoming a public nuisance and liable to prosecution as such – JRL Milton & MG Cowling South African Criminal Law and Procedure Vol III: Statutory Offences 2nd ed as revised (1988) at E3-120 n 2.
[101] J Walkowitz Prostitution and Victorian Society (1980) cited in B Balos & ML Fellows Law and Violence Against Women (1994) at 509.
[102] Walkowitz loc cit. See also Milton loc cit and J Doezema ‘’Forced to choose’ in K Kempadoo & J Doezema Global Sex Workers (1998) at 35.
[103] For a more detailed discussion, see Doezema loc cit and Walkowitz (op cit) at 509-511.
[104] Doezema (op cit) at 27.
[105] Idem; Walkowitz (op cit) at 510.
[106] Doezema (op cit) at 26.
[107] Doezema (op cit) at 35-36. See also Jenness Making it Work: The Prostitutes’ Rights Movement in Perspective (1993) at 33; C Leigh ‘A first hand look at the San Francisco Task Force Report on Prostitution’ Hastings Women’s Law Journal (1999) at 62.
[108] These social purity reformers, many of them male, wanted not only to abolish prostitution, but also aimed to ‘cleanse society of vice’ through a repressive programme focusing on, in particular, the sexual behaviour of young people – see Doezema (op cit) at 27.
[109] Idem at 35.
[110] Doezema (op cit) at 27.
[111] N Roberts Whores in History: Prostitution in Western Society (1992), cited in Doezema (op cit) at 36.
[112] Idem at 28.
[113] Doezema (op cit) at 28.
[114] Idem at 30.
[115] The International Agreement for the Suppression of the White Slave Trade, Paris (1904) and the International Convention for the Suppression of the White Slave Trade (1910).
[116] The International Convention to Combat the Traffic in Women and Children (1921) and the International Convention for the Suppression of Women in Full Age (1933).
[117] The impact of the abolitionist approach is discussed below.
[118] See Doezema (op cit) at 26 and authorities cited there.
[119] Doezema (op cit) at 36.
[120] Idem at 30.
[121] Ibid. The author notes the further example of the U.S. Mann Act of 1910 that was used by police as an excuse to arrest prostitutes and persecute black men.
[122] Ibid.
[123] Bindman points out that the term ‘Abolitionist’ was originally used to describe campaigners against the transatlantic slave trade – see J Bindman Redefining Prostitution as Sex Work on the International Agenda (1997) [Internet] (at Par 2b).
[124] Ibid.
[125] Ibid.
[126] GA Res 317(IV) of 2 December 1949, U.N. Doc A/1251 (1949) [hereinafter referred to as ‘the Trafficking Convention’].
[127] The Convention is discussed in more detail in Chapter 7 below.
[128] See Jenness (op cit) at 42-47 on the formation of COYOTE.
[129] Idem at 2.
[130] Organisations established at this time included the French Collective of Prostitutes, the English Collective of Prostitutes, the New York Prostitutes Collective, the Australian Prostitutes Collective, De Rode Draad (‘Red Thread’) in Netherlands and the Italian Committee for the Civil Rights of Prostitutes.
[131] Kempadoo (op cit) at 20.
[132] Ibid.
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