A Look at the Social and Legal Responses to Prostitution in 19th Century Tasmania

The Female Factory in South Hobart

The Female Factory in South Hobart

Introduction

Records of prostitution are apparent in all of the Australian colonies. In Tasmania, prostitution has been a contentious fact of life from the earliest days of the settlement. In the nineteenth century the courts never criminalised prostitution, however it relied on a number of legislative acts to police prostitutes and brothel owners. Claims that prostitution was rife in Van Diemen’s Land are common but the prevalence of women and girls working as prostitutes’ seem to vary little between the colonies. There is little evidence to suggest that Van Diemen’s Land is an exception in this case and some reports suggest that the number of the population engaged in prostitution was similar in percentage to most major European cities at the time.[1] However each colony has different circumstances and there are a myriad of conditions which contributed to the prevalence of prostitution in Van Diemen’s Land as it existed in the nineteenth century. Amongst which are gender imbalance, economic conditions and as some suggest, previous experience in relation to transported convicts. This paper aims to provide a survey of the social, economic and legal conditions pertaining to prostitution in Van Diemen’s Land in the nineteenth century. It will provide a broad survey of the conditions in the first half of the century and then focus on the industry as it existed in Hobart in the letter part of the mid nineteenth century. Specific attention will be given to the intersection between moral and legal positions within Tasmanian society. A survey of popular thought in relation to prostitution will be provided along with examples of magistrate’s rulings as well as a summary of the efficacy of numerous charitable organisations whose intent was to dissuade those participating in the industry. It will be asserted that prostitution functioned unofficially as a necessary evil which contributed more to social cohesion than it detracted, especially in the first half of the nineteenth century and that this is reflected in the legislative framework.

 The Social, Economic and Legal Conditions in Colonial Van Diemen’s Land

The conditions in VDL before the end of convict transportation and responsible self-government in 1853 and 1856 respectively are marred by economic and social stagnancy. There was very little in the way of workers movements, a middle class was very slow to develop and political life was all too often influenced entirely by the self-interest of a very small group of wealthy pastoralists. It is suggested that in the first twenty years of the colony, weak government led to social conditions which fostered a tough, flexible society in which there were ‘few restraints on individuals except those imposed by their own values”. [2] A situation which saw people doing whatever was necessary to survive. The population of VDL in 1824 was 11,967; of this population 5938 were convicts.[3] Of the overall population 15 per cent were women.[4] This puts the number of females in the colony in 1824 at approximately 1800.[5] From the 1820s onwards there was a large arrival of female convicts, However it wasn’t until transportation ended in NSW in 1840 that the largest influx of female convicts arrived. In all there were around 12,500 female convicts transported to Van Diemen’s Land. Of this number, roughly two thirds were transported after 1840.[6] Female convicts who had committed secondary offences were housed in the Cascades Female Factory between 1828 and 1856, prior to this the Macquarie Street Gaol served as a temporary facility.[7] The assignment system, in which convicts were assigned as free labour to settlers functioned from the beginning of the settlement through to 1839.[8] The economic conditions in the young colony provided limited employment opportunities and the assignment system was slated by the colonial office as a cheap and effective system of removing convicts needs from the government stores, a system which benefited settlers and convicts alike.[9] Teale suggests that it also had the added benefit of removing female convicts from sources of vice and was cheaper than “keeping her at the factory”, although it is noted that many masters received female convicts as prostitutes rather than servants.[10] Alexander however suggests that the assignment system allowed convicts to live fairly openly in the community.[11] Being that there were few opportunities to make a living, women in the assignment system often turned to prostitution as a means of survival. The probation system followed and operated until 1853 when transportation ended.[12] While the limited economic opportunity combined with the male/female population disparity created a situation in which the social and economic conditions arguably encouraged prostitution.[13] The following sections will review how prostitution was approached from a legal framework and review how it was perceived as a moral issue.

Prostitution, A Legal Issue?

Between 1824 and 1843 women arriving in Van Diemen’s Land were questioned about prostitution.[14] This suggests that while there may have been other factors associated and definitions of prostitution may have been ambiguous, the act of prostitution never the less was something which was of concern to the colonial administration. Interestingly, prostitution was not illegal in the colonies, nor was it illegal in Britain. There were no female convicts transported for prostitution although many prostitutes were transported. This is reflected in the Australian colonies too, prostitutes were targeted with a range of vagrancy and public order legislation which often resulted with prostitutes being charged with minor misdemeanours, or as it has been put ‘riotous or disorderly behaviour’.[15] The Vagrancy Act of 1824 mirrored the act of the same name introduced in the same year in England. Under the Act “every Common Prostitute wandering in the public streets or public highways, or in any place of public resort, and behaving in a riotous or indecent manner; … Shall be deemed an idle and disorderly person within the true intent and meaning if this act”. [16] Notably the act of prostitution alone was not enough to illicit a charge. The unwillingness to directly legislate against prostitution may reflect a belief that prostitution was a necessary evil, an act which while undesirable, should be tolerated in the interest of social cohesion. Kay Daniels quotes Henry Melville as saying in his 1835 History of Van Diemen’s Land, that owing to the vastly different ratio of men to women “[prostitutes] must be beneficial to the morality as well as the interests of the community”.[17] The notion here being that the availability of prostitutes would allow the men of the colony to cope in the face of a large gender disparity and thus behave better. It is a position which it could be argued is reflected in the colonial administration’s unwillingness to specifically legislate against prostitution.

Other crimes were dealt with severely in Van Diemen’s Land. The punishment for those convicted for sex offences was particularly harsh. Capital punishment remained the sentence for those convicted of carnal knowledge, rape, bestiality and sodomy long after this punishment for those crimes had been stopped in Britain.[18] The severity of these punishments, along with a hesitant approach to legislate against prostitution seems to reflect the class dynamics and gender disparity in the community. Lieutenant Governor Arthur felt it as his imperative to make a strong statement.[19] That the safety of respectable women in the community was considered paramount could explain the legislative lag in dealing with what many in the community perceived as a great moral wrong. The severe punishment for rape reflects this, the last execution for rape in Tasmania occurred in 1875, long after it had ceased to be a capital offence in Britain, this was also the case in New South Wales.[20] Castles suggests that the political will to deal severely with sex offenders may have resulted in the unfair trial and executions of many.[21] The severity of these punishments shows that the colonial administration was not shy of legislating to correct what it viewed as serious problems in the fledgling colony and provides a telling contrast when compared with measures taken against prostitution.

In Tasmania legislation to deal specifically with prostitutes was not introduced until 1879. Even then, it approached the issue from a health perspective rather than a moral one. The Contagious Diseases Act of 1879 was effective within a six mile radius of Hobart and Launceston’s city boundaries, it allowed for the routine inspection of prostitutes for venereal disease, and prescribed forced treatment in hospital for those women found to be infected.[22] Rather than being an attempt by the Tasmanian colonial administration to eradicate prostitution, the impetus for this legislation reflected the Royal Navy’s anxiety to keep their members healthy.[23] While improvements were noted after implementation there was a perception that the measures in the act weren’t effective enough. Writing in 1880, the staff surgeon of the H.M.S. Wolverine Walter Reid expressed that while he felt the legislation was ‘tentative’, if it had not been enacted then there would be considerable anxiety about keeping ships in Tasmania for longer than ‘a very short period’.[24] He further recommended that all prostitutes be registered and medically inspected once a fortnight.[25] These recommendations were not reflected in practice, and in 1888 these concerns are still apparent. A Royal Commission into charitable organisations recommended that “the officer appointed by the Governor-in Council under the Contagious Diseases Act be empowered to order any suspected prostitute to be detained for immediate examination by some medical man appointed by the Government for the purpose”.[26] Neither the vagrancy laws nor the Contagious Diseases Act sought to act from a moral perspective. The legislation, while acknowledging the moral concerns of some in relation to the issue, primarily functioned from a pragmatic position and prostitution appears as a fact of life which is unlikely to change.

Efficacy of Legislation and Law Enforcement

Examples of how vagrancy laws and the Contagious Diseases Act practically functioned in the policing of prostitution can be found in the reporting of police courts. The punishments for charges associated with prostitution vary greatly and very little consistency is shown in sentencing. Some sentences seem to have a rehabilitative air about them while others seem either unduly severe or exceedingly lenient in comparison. Below is a small selection of examples to highlight this assertion. The Mercury reported from the police court in 1863 on the case of a 16 year old girl who was picked up for vagrancy:

Tuesday, 3rd November, 1863.

Before A.B. Jones, Esq., Stipendiary Magistrate.

Vagrancy.-Mary Askins, a girl, who, in reply to the Bench, stated that she was 16 years of age, was charged with being a common prostitute and behaving in an indecent manner in a public street. Mr. Jones said that the best thing he could do with a child of the defendant’s age was to order her to be sent to one of the Reformatory Schools, gazetted under the new Act. He should, therefore, order her to be sent to the school in New Town, for a period not less than two years, but as it was just possible, that the building might not yet be in operation, he should order her in the first instance to be imprisoned and kept to hard labour for one week, and during that period to be kept strictly separate from all other prisoners.[27]

Other newspaper reports of the time offer example after example of common prostitutes picked up for anti-social behaviour, drunkenness and vagrancy. The severities of punishments vary. Some examples show leniency with only cautions given such as this example from the Launceston Examiner in 1864 “Frances Davis and Rebecca White were charged with being common prostitutes and behaving indecently on the Queen’s ‘Wharf: on last night; They were admonished and discharged, the Superintendent of Police wishing merely to caution them on this occasion”.[28] Whilst on other occasions comparable crimes attracted much more severe penalties. An apparent increase in prostitution in the 1870s seems to have made little difference to sentencing.

Vagrancy laws were used by police as a way to keep prostitutes off the streets.[29] However Alexander suggests that police used these laws not so much to crack down on prostitution but to remove it from the view of the general population.[30] The policing of prostitution reflects a managerial approach, but it is unclear whether a more prohibitive approach could have been effective. Even if the political will existed to crack down on prostitution, it is unclear whether this would have been possible. Petrow suggests that police were poorly placed to deal with prostitutes owing to their own socio-economic position, a situation which effectively rendered them “unreliable and unsuitable agents to use against prostitutes, pubs and even larrikins”.[31] Alexander further suggests that police were often in collusion with brothel owners.[32] Prostitution, when it was policed was done so in a manner which would remove nuisance elements and allow the industry as a whole to continue. A combination of socio-economic conditions which effected police and prostitutes alike and demand created a situation in which prostitution had to be tolerated.

Prostitution as a Moral Concern.

Prostitution was viewed by many as a considerable moral challenge. Although there were dissenting voices in the community, a great many saw it as a stain on society, an affront to families and decency. An enquiry into the conduct of female convicts undertaken in 1841 shows extensive concerns relating the extent and prevalence of prostitution amongst not only female convicts, but also their children. In evidence given, police magistrate John Price provides a critical account of ticket of leave convict women

Ticket of Leave women in Hobart Town and its vicinity are always brought before me whatever their offences may have been – their [page 174] prevailing offences are in drunkenness, frequenting disorderly houses where prostitutes are harboured, living in a state of prostitution with men & representing themselves to be free. They are not generally speaking a well conducted class of women.[33]

A number of people were interviewed in relation to the behaviour and conduct of female convicts and their children. One of those interviewed was Rev T J Ewing, the headmaster of the Queens’ orphan school located in Newtown.[34] Ewing suggested that it was detrimental for any of the students to have contact with their convict parents owing to their low moral character. He complained to the commission that on several occasions visiting convict parents had provided intoxicating liquor to their children and in general were a bad moral influence, one which should by all means be discouraged if not banned. Ewing lamented that the children of convicts were, upon the release of their parents, being taken from the school for the purposed of prostitution. He cited the example of a former convict, and known prostitute who, upon receiving a ticket of leave removed her daughter of fourteen from the school, who three days later was seen with three whalers. He expressed that before her removal, the girl had expressed anxiety to become a prostitute, musing that this could also be due to the fact that she has seen girls she knew to “be on the town well dressed”.[35] These comments are as much a reflection of the economic situation of the time as they are the prevalence of immoral behaviour. Teale notes that the temperance movement is closely associated with the push to influence the condition of prostitutes along with a number of other social issues.[36] But there were other voices wanting to be heard on the issue too.

While some voiced their condemnation of the prostitutes themselves, others wrote in to the newspapers calling for a range of reforms. Some suggested regulation would provide the most beneficial outcomes. The example of a regulated industry in Japan is cited as showing numerous benefits.

No one is tempted to vice by the sight of it in the busy thoroughfares. No pestilence walks at noon-day in Japan. It must be sought in the quarter reserved for it is every city of the empire, and it is not allowed to go forth in brazen bravely to offend the modest and allure the unwary.’ The question is one that should not be treated in a namby-pamby manner, but as it is one that affects the health and moral condition of society, should be taken in hand at once by the authorities, lest Tasmania degenerates into the moral condition of the continental cities of Europe.[37]

Others felt the need to tackle the issue from an educational perspective. One man writing to the Launceston Examiner in 1867 claimed the need for Juvenile Reformatories to mitigate the conditions which encourage prostitution and anti-social behaviour.

Has the time come for the establishment of reformatories? The answer by judges, magistrates, and others is “Yes.” The judge sentences youths to be imprisoned in a gaol, while acknowledging that a reformatory would be a more suitable place of reception. The magistrates dismiss youths for lesser offences, because they have no mode of dealing with the culprit except by exposing him to greater evils. Citizen on every hand deplore the increasing juvenile depravity. When we reflect upon the antecedents of the parents of these youths we cannot wonder at their moral taint. Hueso associations are with too many recollections of blasphemy, profligacy, dishonesty, and the invariable addition of intemperance. Children so cradled and educated are our Arabs–to grow up into thieves and prostitutes.[38]

The presence of differing opinion in the community is apparent. But the frustrations of those who believe that the police and courts are failing to deal with a moral scourge are summed up well in a letter to the Launceston Daily Telegraph. Written under the subheading ‘In foro conscientiae’, Latin for ‘before the tribunal of conscience’, Cabby writes

…The idea of introducing young girls for their beauty and attractions, and compelling them to listen to such language as went on frequently in bars was atrocious. Unless they were young and pretty they did not attract custom, and could not act as decoys. The idea of putting a young and pretty woman into the midst of a foul atmosphere, and- frequently blasphemous conversation, seemed to him to be monstrous.’ Trusting that the thinking portion of our community will wait upon our three -members, and request of them that they Will, in- their place in ‘The House,’ .take steps to have enquiries made into this, and. other such matters, and if our police, have not the power to take at any hour, and from any place, all girls under 18 years of age who are well known to be pursuing a life of prostitution, that the requisite steps be taken for the introduction of ‘a bill into Parliament giving them such -authority. Indifference to such matters is absolutely unnatural, absolutely inhuman in any thinking being…[39]

Cabby continues, “I will subscribe. £1′ 1s towards a fund for the reward of the policeman who shall secure a conviction, and the retaining a 1 respectable ‘ solicitor for conducting the case, against any of the keepers of the disorderly houses in town”.[40] The complexity of social attitudes towards prostitution reflects a diversity of thought. While prostitution has always been a complex and contentious issue the frustration of those who oppose prostitution on moral grounds is directed in this case not at the prostitutes themselves, but at the hesitancy of the police to effectively prosecute those who run brothels.

Conclusion

The survey of prostitution in Tasmania over the period of the nineteenth century provides few clear or conclusive answers. The issues which sections of the community raise are as diverse as any political thought. While some pushed for a more punitive response, others saw it as an issue of education. A survey of the social, economic and political conditions in Tasmania has revealed that conditions were conducive to prostitution. Under the assignment system, women were driven to prostitution through lack of opportunity. However the lack of evidence to suggest that prostitution decreased in the latter half of the nineteenth century suggests that while there were limited economic improvements the choice to work as a prostitute was one actively made by many women. Legislative inaction is apparent throughout the nineteenth century. The few measures which were introduced were not aimed at eradicating the industry, rather they provided a framework which at best allowed police to keep prostitution limited to certain areas. The efficacy and capacity of the police to enact these measures also seems limited. The Contagious Diseases Act, while aimed at safeguarding the health of customers rather than prostitutes themselves was poorly implemented and failed to meet the expectations of those who initially pushed for it. A summary of this evidence suggests that prostitution was never viewed by the Colonial Administration and later the Tasmanian Parliament as a serious concern and dissenting voices in the community were never strong enough to encourage legislative action.

[1] http://www.english.uwosh.edu/roth/Prostitution.htm , accessed 11 May 2015.

[2] Alison Ashley, The public role of Women in Tasmania, 1803–1914, PhD thesis, UT, 1989. P.1.

[3]http://www.abs.gov.au/ausstats/abs@.nsf/7d12b0f6763c78caca257061001cc588/7ece045bc4080344ca256c320024164d!OpenDocument, accessed 10 May 2015.

[4] Alison Ashley, The public role of Women in Tasmania, 1803–1914, PhD thesis, UT, 1989. P.1.

[5] Population figures vary according to different sources, 1800 is only an approximate.

[6] Dianne Snowden, ‘Female Convicts’, The Companion to Tasmanian History, http://www.utas.edu.au/library/companion_to_tasmanian_history/F/Female%20convicts.htm, accessed 9 May 2015

[7] Lucy Frost,’Female Factories’, The Companion to Tasmanian History, http://www.utas.edu.au/library/companion_to_tasmanian_history/F/Female%20factories.htm, accessed 8 May 2015.

[8] Richard Tuffin,’assignment’, The Companion to Tasmanian History, http://www.utas.edu.au/library/companion_to_tasmanian_history/A/Assignment.htm, accessed 9 May 2015.

[9] Ruth Teale, Colonial Eve (Melbourne 1978), p.21.

[10] ibid

[11] Alison alexander, ‘Prostitution’, The Companion to Tasmanian History http://www.utas.edu.au/library/companion_to_tasmanian_history/P/Prostitution.htm, accessed 8 May 2015.

[12] Michael Sprod,’Probation System’, The Companion to Tasmanian History , http://www.utas.edu.au/library/companion_to_tasmanian_history/P/Probation%20system.htm, accessed 11 May 2015.

[13] Alison Alexander, ‘Prostitution’, The Companion to Tasmanian History ,http://www.utas.edu.au/library/companion_to_tasmanian_history/P/Prostitution.htm, accessed 8 May 2015.

[14] Christine Leppard-Quinn, Tasmanian Historical Studies, vol. 18 2013.

[15] Roberta Perkins, Sex Work & Sex Workers in Australia.(Sydney 1994), p.69.

[16] An Act for the Punishment of idle and disorderly Persons, and Rogues and Vagabonds, in that Part of Great Britain called England, [21st June 1824.], http://www.legislation.gov.uk/ukpga/1824/83/pdfs/ukpga_18240083_en.pdf, accessed 7 May 2015

[17] Kay Daniels, So Much Hard Work,(Sydney 1984), p42.

[18] Alex Castles, An Australian Legal History, (Sydney 1982), pp. 261-2.

[19] Ibid.

[20] Ibid.

[21] Ibid.

[22]   The Contagious Diseases Act 1879 (42 Vic, No 36) http://www.austlii.edu.au/au/legis/tas/num_act/tcda187942vn36296/, accessed 6 May 2015.

[23] Kay Daniels, Mary Murnane, Australia’s Women: A Documentary History, (St Lucia 1980) pp. 98-101.

[24] Kay Daniels, Mary Murnane, Australia’s Women: A Documentary History, (St Lucia 1980) p. 99.

[25] ibid.

[26] ‘Royal Commission into Charitable Organisations’, The Mercuy, 12 June 1888, http://trove.nla.gov.au/ndp/del/article/9147067?searchTerm=prostitut*&searchLimits=l-state=Tasmania|||l-decade=188 acessed on 9 May 2015.

[27] The Mercury (Hobart, Tas. : 1860 – 1954 Wednesday 4 November 1863), http://trove.nla.gov.au/ndp/del/article/8822114?searchTerm=prostitut*&searchLimits=l-state=Tasmania|||l-decade=186, accessed on 8 May 2015.

[28] Launceston Examiner 27 Aug 1864, http://trove.nla.gov.au/ndp/del/article/38654733?searchTerm=prostitut*&searchLimits=l-state=Tasmania|||l-decade=186, accessed 9 May 2015.

[29] Kay Daniels, So Much Hard Work, (Sydney 1984), p. 146.

[30] Alison Alexander, ‘Prostitution’, Companion to Tasmanian History, http://www.utas.edu.au/library/companion_to_tasmanian_history/P/Prostitution.htm, accessed on 7 May 2015.

[31] Stefan Petrow, Alison Alexander, Growing With Strength,(Hobart 2008), p. 185.

[32] Alison Alexander, ‘Prostitution’, Companion to Tasmanian History, http://www.utas.edu.au/library/companion_to_tasmanian_history/P/Prostitution.htm, accessed on 7 May 2015.

[33] Report of the Committee of Inquiry into Female Convict Discipline 1841, http://www.femaleconvicts.org.au/docs/disciplineinquiry/TranscriptofInquirywithtables.pdf, accessed on 6 May 2015.

[34] The Orphan School, built by convict labour, operated from 1833 until its closure in 1879. In 1848, when Charles O’Hara Booth – formerly in charge of the Point Puer boy’s prison – was superintendent, there were 463 children at the institution, of whom 411 were the children of convicts and seven were Aboriginal. Reports indicate that conditions within the school were harsh: the buildings were sparsely furnished and cold; food was often in short supply; and many of those responsible for caring for the children treated them harshly.

[35] Report of the Committee of Inquiry into Female Convict Discipline 1841, http://www.femaleconvicts.org.au/docs/disciplineinquiry/TranscriptofInquirywithtables.pdf, accessed on 6 May 2015.

[36] Ruth Teale, Colonial Eve,(Melbourne 1978), p.193.

[37] Daily Telegraph, Launceston, 2 January 1884. http://trove.nla.gov.au/ndp/del/article/149433126?searchTerm=prostitut*%20moral&searchLimits=l-state=Tasmania|||l-decade=188, accessed on 5 May 2015.

[38] Launceston Examiner 11 June 1867, http://trove.nla.gov.au/ndp/del/article/36644161?searchTerm=prostitut*%20moral&searchLimits=l-state=Tasmania|||l-decade=186, accessed on 11 May 2015.

[39] Daily Telegraph, 13 June 1884, http://trove.nla.gov.au/ndp/del/article/149430205?searchTerm=prostit*%20illegal&searchLimits=l-state=Tasmania|||l-decade=188, accessed on 11 May 2015.

[40] Ibid.

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