CHAPTER X

PROBABLE EFFECTIVENESS OF REGLEMENTATION IN NEW YORK

THE problems which reglementation has to solve differ from city to city. Accordingly, it is not sufficient for the present purpose to show how far it has succeeded in other cities; but each problem relating to reglementation must be considered with respect to the legal institutions, the racial and local characteristics, the social and economic conditions of the city of immediate interest-New York.

The legal question is obviously one which can be decided only by legal specialists. It is in a way preliminary to all further discussion, since constitutional obstacles to reglementation, if such exist, are practically insurmountable. The regulation of prostitution can be a burning question only in the large city; and even if it were agreed by the inhabitants of the city that reglementation is expedient, the hostility or indifference of the country at large would make it impossible to carry a constitutional amendment for the sake of its realisation.

All that can be attempted here is to state the problem, and to indicate the main theories that have been advanced for its solution.

The essential features of a system of reglementation are the periodical examination and treatment in the lock-hospital for venereal diseases. No legal difficulty would arise if the prostitute could be induced to submit to the rules voluntarily. But a very large class will never submit; hence compulsion is absolutely necessary if the system is to be effective. Manifestly, it would be impossible to impose compulsory physical examinations and imprisonment for extended treatment without depriving the persons subjected to them of a large share of their personal liberty.

The most familiar line of defence for such a restriction upon individual liberty is the declaration that prostitution is a status, analogous to the military status, which limits the civil rights of the individual and subjects him to special regulations and, possibly, to special tribunals. This is practically the view of European reglementists. It is doubtful, however, whether American constitutional law would admit the right of a legislature to create a special status of this kind.

A second manner of defending reglementation is to classify prostitution with occupations that are subject to police regulation, such as cab-driving, the keeping of a hotel, and the like. Regulations may decide under what conditions such a trade

may be carried on and under what conditions it is not permissible. Infractions of the rules may be subject to special penalties. The periodical examination could, perhaps, be defended in such a manner. Physical examination would be a condition precedent to the exercise of the trade. But imprisonment for treatment would seem to be more difficult to defend. Would it be possible to imprison a cabman whose license has been revoked and who is suspected of intending to carry on his occupation unauthorised? Such a procedure seems to be perfectly analogous to the forcible detention of the diseased prostitute. Accordingly, reglementation must discover some other basis than that of special regulation of a special trade.

But whether prostitution is viewed as a special status or a special occupation, some clear definition of prostitution and some workable method of establishing the fact of prostitution are essential. It is absurd to believe that the mere suspicion of police agents or the mere fact of venereal disease would be sufficient in America, as it is in France and Germany, to prove that a woman belongs to the status of professional prostitution, or exercises prostitution as a regular trade, so long as she denies the fact. Legal proof would be absolutely

'It may be remarked that in Russia, workers in factories are theoretically subject to periodical physical examinations, and that in Posen all barmaids are subjected to such examination before entering upon a position.

necessary for placing a woman in such a status or class, and such proof must necessarily in the majority of cases be difficult, if not impossible, to obtain.

Another common method of providing a legal basis for reglementation is to bring it under the class of police regulations for preventing the spread of contagious diseases. The analogy between the compulsory treatment of venereal disease and the isolation of those who suffer from other contagious maladies, would, perhaps, be perfect if all venereal patients were subjected to the same treatment. This would, however, be impossible under present conditions; and to make the regulation apply to a special class only, would, of course, require the creation of such a special class, and thus would raise the difficulties which have been pointed out above.

A fourth plan is that of restoring ancient laws making prostitution a crime or a misdemeanour and of leaving to the police courts discretionary power as to the penalties imposed. It is conceivable that by a series of legal fictions the diseased prostitutes might be subjected to imprisonment in hospitals, while those not found to be diseased might be permitted to go unpunished. If such a procedure is not unconstitutional, it would probably provide a sufficient basis for a system of sanitary regulation of vice. The difficulty would still remain that sufficient

proof of prostitution would be required,-a difficulty which is practically insurmountable.

It remains to be considered whether it would be possible to overcome the natural objections of women of this class to police regulations, so that submission to its rules might be voluntary. This could only be done by granting special privileges to those who submit. A relentless persecution of those who do not submit to the regulations, and immunity from arrest to those who do submit, would undoubtedly drive many to accept registration and periodical examination as the lesser of two evils. Accordingly, the question of regulation based upon quasi-voluntary inscription resolves itself into the question of the possibility of coping with "clandestine" or unsubjected prostitution.

The first question to be considered has to do with the efficiency of the police organisation itself. Experience has shown conclusively that for the morals service, special agents, endowed with rare qualities of tact, shrewdness, and integrity, are necessary. Doubtless the materials for a special force of agents can be found in an American city. But it stands to reason that it would take time to organise as efficient a force as that of Paris or Berlin. For this reason, it must be expected that for a time excess of caution, varied by unfortunate excess of zeal, would mar the working of the system. This defect would cure itself with time, however, and so may be dismissed.