The Women's Court in its Relation to Venereal Diseases

Journal article excerpt

By: W. Bruce Cobb

Date: 1920

Source: Cobb, W. Bruce. "The Women's Court in its Relation to Venereal Disease." Journal of Social Hygiene January, 1920 (Volume 6, Number 1).

About the Author: W. Bruce Cobb was the City Magistrate for New York City in the early 1920s.

INTRODUCTION

Prostitution and the continued spread of venereal disease was a major public health issue for urban areas in Western Europe and the United States from the mid-1800s on. Before the widespread availability of antibiotics to treat conditions such as syphilis and gonorrhea, venereal disease generated severe morbidity and mortality issues for the men who frequented prostitutes, the prostitutes themselves, the clients' wives, and sometimes the clients' children, who could be born with disabilities or stillborn as a result of venereal disease contracted during pregnancy.

Britain and France enacted a series of laws to control prostitutes. In 1823, the Gendarmerie Royale in Paris required prostitutes to be registered, arresting those who refused. All brothels were registered as well. Registration was a simple process, involving basic questions about the person's life, whether she had children or a spouse (in which case she needed her spouse's permission), and why she was in the trade. A large number of prostitutes remained unregistered, however; the stigma attached to the trade was too great for many to wish to be on the official lists.

In Britain, the Contagious Disease Acts of the 1860s involved a greater degree of government involvement in the bodies of prostitutes. Prostitutes were required to register and undergo a physical exam; if they carried a venereal disease they were quarantined to a government hospital until declared "clean." Male clients of prostitutes, however, were not required to register or undergo exams of any kind. The police in Britain had wide latitude in determining which women were prostitutes; no probable cause was needed. The law lent itself to abuse by police, spurned lovers, or dissatisfied clients.

Middle and upper class women in Britain, in a rare social movement, came to the defense of lower class prostitutes by fighting against the Contagious Disease Acts. In 1886, Britain repealed the Contagious Disease Acts, though venereal disease remained a public health problem.

In the United States, prostitution itself was not illegal on a federal level; interstate prostitution, governed by the 1910 Mann Act, prohibits interstate commerce, but states regulate prostitution. As of 2006, prostitution is illegal in all states except portions of Nevada. In the early part of the twentieth century, cities and states slowly made the solicitation of a client by a prostitute illegal; only later was the act of engaging a prostitute made a crime.

In New York City, the Women's Court processed prostitution cases for the first three decades of the twentieth century. In this excerpt below, W. Bruce Cobb, the City Magistrate for New York City in 1920, discusses the role of World War I (1915–1918) in understanding the public health crisis involved with the spread of venereal diseases.

PRIMARY SOURCE

CITY MAGISTRATE, NEW YORK CITY

In civil life, just as in the army, the threat of the so-called "social evil" is ever with us. According to many opinions it ever will be, just as it has continued throughout the ages, as the necessary accompaniment of indiscriminate sex relations.

But of this let us take note: that never before in the world's history have venereal disease and its great productive cause, commercialized vice, been so closely or scientifically studied or with better promise of definite results. Not only has medical science furnished marvelous methods of cure, but the world war has yielded a wealth of data that is a revelation, not only in its relation to military affairs but to our normal, everyday civil population.

From the vantage point we now occupy there opens up a vista of probably amelioration, not only for future generations, but even for the present one, to an extent which would have been regarded as unbelievable ten years ago.

Conceding the traditional conservatism of courts of law, I should be ashamed to be compelled to admit that they had not shared in this progress and awakening. Happily, however, I can say that the Women's Court of this city has done a great deal to keep pace with the onward march. If one familiar with the workings of this court ten years ago were to go there and study them now, a great change would be observed.

Ten years ago we were hardly out of the stage when prostitutes were merely fined—a method quite ineffectual to lessen their activities even in the slightest degree. Then came the cry to keep our streets clean—"outward order and decency." Then the cry to keep our tenements clean—a form of "inward order and decency"—all of which was the forerunner of "inward order and decency" not only in the tenements and homes of our people, but in their very bodies.

Of course, whatever restricts or lessens prostitution tends to combat venereal disease—if not to eradicate it, at least to keep it in bounds or diminish it. This may be done by long imprisonment for the hardened offender and by probation or reformative processes for the less hardened.

These methods will doubtless be necessary for a long time to come but without the helping hand of medical science they are bound to be ineffectual in achieving the best that can be achieved. Actual medical treatment for both body and mind is essential. Indeed, feeble-mindedness and venereal disease offer a doubly dangerous combination as a source of contamination.

In 1910 there was passed in New York state a law which provided that women found guilty in the Women's Night Court (now fortunately a day court) of prostitutional offenses were to be forthwith examined by a woman physician in an adjacent room. The physician then made a written report to the magistrate and, if infected, the offender was committed to a public hospital for a minimum period and a maximum of not more than one year. If cured before the minimum period, the prisoner was transferred to the workhouse for the rest of her term. If not cured she remained not only for the minimum term but as long thereafter, up to one year, as might be necessary to complete her cure.

This law, however, was destined to early failure since it was declared unconstitutional by the Court of Appeals in June, 1911, in the case of People ex. rel. Barone, r. Fox (202 N.Y. 616). The Court of Appeals thereby reversed the decision of the Appellate Division of the Supreme Court, adopting the dissenting opinion of Mr. Justice John Proctor Clarke (144 App. Div. 649), who said:

"I cannot avoid the conclusion that a woman coming within the provisions of the section receives a sentence not for the offense for which she was brought into court and upon which she has been convicted, but based upon her condition of health, in regard to which she has not had a hearing."

It would not be of interest here to follow from that time the various changes of laws and policy of the Women's Court with respect to sentences or other treatment. It is enough to say that after a scheme of an automatic indeterminate sentence, the law again vested in the magistrates the usual discretion as to length of sentence. These sentences, graded by agreement among the four magistrates rotating in the court, were in proportion to the number of times the offender had been previously convicted. They greatly held in check the evil of prostitution and earned New York the title of the "cleanest city."

So much was this so that in time it became possible to be more lenient and also to give increased attention to individual treatment, especially in probation work, without allowing the evil to gain headway.

In 1915 came the parole Commission Law, which has been upheld by the courts in a series of interesting decisions (e.g. see People ex. rel. Berger v. the Warden, 176 App. Div. 602 and cases there cited). This law is still in full force and vigor. So far as it relates to prostitutional offenses, it provides that one who offends twice in two years, previous to the present conviction, or three times during any time previous thereto, may be sentenced to an indeterminate period not to exceed two years in the workhouse. It gives full scope to the finger-printing system, as a means of proving previous convictions. Fingerprinting was, in fact, provided for in 1910 for the Women's Court and has at all times been of extraordinary value in ascertaining a defendant's previous record. Indeed, it has become indispensable to the work of the court, which could only function in the lamest fashion without it.

The Parole Commission Law is preeminently a reformative measure, though at the same time it makes possible a lengthy period of detention and removal from society of the hardened offender. Through a system of study of the character and environment of the individual, coupled with good behavior marks while in the workhouse, a prisoner may earn parole or even discharge, according to what she seems to merit.

At the time this law went into effect it was predicted that a possible two-year detention would deter from a second offense or drive from the city, many of these offenders. For a short time this seemed to be the case, though no permanent decrease has been established.

That the Parole Commission Law possesses splendid features is not to be gainsaid. And just stated, it keeps the hardened offender from contaminating society for a considerable period, and it gives wide opportunity for reformative measures for those susceptible of reform. Lastly it gives a splendid opportunity to rehabilitate them all physically and to cure them of venereal disease.

It may now be asked what facilities for cure were afforded before and at the time the Parole Commission Law went into effect. They were and still are as follows: at the workhouse scientific modern hospital treatment is given those who are convicted there and prove to be infected. Workhouse statistics show upwards of eighty percent to be so infected. This treatment is excellent for those who are committed long enough to be cured, but short-term prisoners often have to be freed before the cure is complete or, sometimes, even fairly begun.

As to those sent to Bedford State Reformatory and to certain of the semi-private institutions, adequate treatment was and is furnished. On the other hand, other semi-private or charitable institutions have to rely on the public hospitals to care for such cases. This leaves much to be desired, especially as only the very active cases are apt to be so sent.

As to those placed on probation, no means of cure were afforded up to very recently. Indeed it often was unknown whether they were, or were not, victims of disease. Up to recently, it was rarely known whether a person was infected until she reached the workhouse or reformatory, since there was no physician to examine after conviction and sentence. With affairs in this state, it can readily be seen that medical treatment was accorded to only part of those convicted.

In 1917 came our entry into the great world war and with it the training camp activities and the wonderful efforts put forth to keep the army "clean." As New York City became more and more thronged with solders and sailors it became apparent that the Women's Court had an increasing amount of work and that the prisoners comprised an appalling number of first offenders. These were drawn to New York partly through the lure of the uniform and partly through the workings of the law of supply and demand. The girls came from all parts of the country and their earnings were vastly greater than in pre-war times. It was soon seen that the policy of comparative leniency which had, up to the war, kept the streets and tenements in fair order, would not do any longer, and the court realized it must adjust its policies to meet new conditions.

When the federal authorities made clear the immensity and seriousness of the problem—from the army viewpoint—a close cooperation was established. Lines were drawn more strictly on probation, and workhouse sentences were lengthened so as to increase detention, complete cures, and at the same time to keep the offender from her prey. Even the Parole Commissioner was appealed to, so as to prevent the possible release of old-time offenders.

Close on this came the demand for legislation, not only to secure proper medical treatment of convicted prostitutes, but of all that class generally and of men guilty of kindred offenses under the law. It was early realized that, due to the Barone case, declaring the law of 1910 unconstitutional, any such legislation must be in the form of a health measure pure and simple, so that a person's punishment or incarceration might not be measured primarily by his or her condition of health. In other words, compulsory treatment must be in a hospital or by a private physician and for the disease and not as the result of a court commitment.

We had long had a provision of the vagrancy law that permitted commitment of those suffering from an infectious disease acquired through debauchery and requiring charitable means to restore them to health. But this had failed utterly in practice, as defendants generally were able to prove that they did not require charitable aid.

On April 17, 1918, a new article for "the regulation of certain contagious diseases" was added to the state public health laws. Thus the health aspect of commercialized vice came to take its true place in law enforcement. Not only is this law a legal measure designed primarily to combat venereal disease, but it operates largely through the medium of the magistrates' courts, especially the Women's Court. By its terms both men and women who are reasonably open to suspicion of disease may be examined and treated either by the board of health or, at the option of the suspect, by a licensed physician. Women convicted of prostitutional offenses, as well as men guilty of related delinquencies known to the law, must be examined by a board of health physician immediately on conviction and may not be released until this is done.

By an amendment made in 1919 even those arrested for such offenses must be reported by the court for the purpose of examination, on the theory that they are reasonably subject to suspicion by the fact of arrest. This latter has seemed to some of us a dangerous extension of power and one which the board of health may well hesitate to exercise. In theory of law, a person is not only presumed innocent until convicted, but in like theory he or she may well be the victim of mistaken or unjustified arrest. To subject a possibly decent man or pure woman to what is to many a humiliating experience in being so examined, would possibly stir a revulsion of public feeling that would undo much of the good this beneficent legislation would otherwise accomplish. Such an exercise of the police or health power may indeed be of doubtful constitutionality. At least the health officer acts at his peril in a given case, even though we bear in mind that decent men or pure women are rarely, if ever, arrested. Again, the medical examination of those actually convicted reveals a positive reaction in only a little over fifty percent of all cases, so that on the face of it, it is safe to say that perhaps less than half of those merely arrested would show signs of disease. Consequently, at least half would prove to have been erroneously subjected to suspicion. It would seem that until the time when we shall all be examined, as part of a general clinical examination imposed upon all members of society, it is going pretty far to uphold this amendment.

SIGNIFICANCE

Thirty years after Britain repealed its Contagious Disease Acts, New York City imposed a similar law; the April 17, 1918 article titled the Page Bill permitting "the regulation of certain contagious diseases" and the 1919 addition permitting for the examination of anyone arrested on prostitution or "delinquency" charges (the male client's charge) echoed the British law that middle class female reform had fought so hard against.

While Cobb praises the public health components of such laws, he too finds the law's ambiguity and potential for abuse to be excessive. While the 1910 law providing for punishment based on disease status was unconstitutional, requiring an exam in and of itself was considered a part of public health law. Purity crusaders shifted their view of prostitution as a "fallen woman" or one who made an immoral choice to that of a medical or scientific problem to be solved, via legislation, examination, and criminalization.

In 1936, Dorothy Kenyon, a female lawyer who was active in social causes and women's rights, chaired a committee that investigated the Women's Court system. Arguing that prostitutes needed social services and social support rather than punishment and criminal prosecution, Kenyon helped once again shift this view of the prostitute from that of a public health menace to a person with a need for a social safety net, access to services, and one for whom prostitution was a desperate choice.

Military public service campaigns during World War I and World War II (1938–1941) served to combat the spread of venereal disease. In June 1944, the use of penicillin for syphilis became available, and it nearly eradicated all forms of venereal disease in treated soldiers. Within a short time, penicillin was available to the public and largely ended the plague of venereal disease that officials had worked to contain with such measures as the Mann Act, the 1918 Page Bill in New York, and the Women's Court.

FURTHER RESOURCES

Books

Brandt, Alan. No Magic Bullet: A Social History of Venereal Disease in the United States Since 1880. Oxford University Press. 1987.

Gilfoyle, Timothy. City of Eros: New York City, Prostitution, and the Commercialization of Sex, 1790–1920. W.W. Norton & Co. 1994.

Ringdal, Nils Johan. Love For Sale: A World History of Prostitution. Grove Press. 2004.

Periodicals

Wahab, Stephanie. "For Their Own Good?: Sex Work, Social Control and Social Workers, a Historical Perspective." Journal of Sociology and Social Welfare. December 2002.