ABSTRACT
Within the legal system the prostitute is, almost without exception, 1 considered to be a woman. The legal definition of prostitution invariably refers to a woman selling her sexuality rather than a person of either sex selling their sexuality. Consequently prostitution has traditionally been treated as a ‘female’ offence. In other words prostitution, or rather soliciting for the purposes of prostitution, is a sex-specific offence because the legal definition tends to ignore the existence of male prostitution. Similarly rape is legally defined as a sex-specific offence, it being assumed, within Northern European and American cultures at least, that women cannot commit rape. Thus legally only men may commit rape, women can only be guilty of aiding and abetting rape. Rape therefore is conceived of as a ‘male’ offence, while prostitution is conceived of as a ‘female’ offence and the sex-specific nature of these offences inevitably has some bearing on cultural attitudes towards both of them. If the legal code is taken as the embodiment of cultural attitudes it would seem that, as both rape and prostitution (or more properly, solicitation) are criminal acts, both rape and prostitution are condemned. However, attitudes and even the enactment (if not the letter) of the law are more complex than this. Within the sphere of sexual morality there are double-standards in the expectations of the behaviour of men and women and these double-standards are reflected in laws and practices and attitudes towards sexual behaviour. Women are expected, within our culture, to remain pure until marriage if possible and to remain faithful to one man thereafter. The woman who fails to live up to this impossibly hard standard is to a greater or lesser extent, depending historically on fluctuations in the moral code, condemned. For men however there is a different standard; indeed in order to prove oneself a ‘man’ at all it is seen as necessary to engage in pre- and extra-marital sexual intercourse. Our moral code therefore restricts a woman’s sexuality but encourages a man to be sexually active. It seems a contradiction therefore that offences related to prostitution, which are all non-indictable, should carry relatively little punishment (usually a fine or six months’ imprisonment) while rape can result in life imprisonment and was once punishable by death or mutilation. 2 There is no contradiction however if it is considered that historically women have always been treated as the property of their fathers or husbands in legal statute. The severe penalty for rape which was (and is) not always implemented was a punishment for the defilement of another man’s property rather than a form of protection for women or a recognition of women’s rights over their own bodies. It is significant also that historically the rapist was not the only person who was punished for in many cases the victim also lost her life or suffered a loss of esteem and the chance to marry. Indeed it may be argued still that in contemporary rape cases the victim is on trial rather than the accused. Prostitution on the other hand has not always been treated so apparently lightly by the law 3 and it would seem that the legal penalties for soliciting for the purposes of prostitution are a reflection of the realization that it is impossible to repress prostitution rather than an indication that prostitution has become socially acceptable.
