Prostitutes and Persons
| Author | Alison Diduck,William Wilson |
| Date | 01 December 1997 |
| Published date | 01 December 1997 |
| DOI | http://doi.org/10.1111/1467-6478.00058 |
INTRODUCTION
The modern history of the common law has shown how legal forms and
procedures, as much as the substance of law, reflects and maintains patterns
of difference and inequality in social relations generally. Typical of this
history are the infamous ‘person’s cases’1of the early twentieth century in
which by dint of allegedly ‘neutral’ legal mechanisms women were denied
economic and political ‘personhood’ for the purposes of holding public
office. Before being overruled by the Privy Council, Chief Justice Anglin of
the Supreme Court of Canada found, for instance, that on the basis of
women’s common law disability there were no precedents for admitting
women into public political life,2and Barker J held it to be the ‘law of the
Creator’ that the ‘paramount destiny’ of woman was to be ‘wife and mother’,
and so the applicant could not be admitted to the practice of law.3
On one level, the significance of these cases is easily represented as a
paradigm example of how the natural and ordinary meanings of words may
be compromised by judicial bad faith.
In Sachs and Wilson’s analysis, these cases illustrate how the apparent
neutrality of universal rules of precedent and statutory interpretation is
inevitably subverted by the conceptual apparatus of judges.4On another
level, however, these cases demonstrate that the meaning of words is never
‘natural’, ‘plain’ or ‘ordinary’ at all, and that even the least obviously vague
or ambiguous are susceptible to (ideological) interpretation. On this view,
a gendered, ‘extraordinary’ (for law) understanding of the word ‘person’ was
© Blackwell Publishers Ltd 1997, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA
* Centre for the Study of Law, the Child and the Family, Department of Law,
Brunel University, Uxbridge, Middlesex UB8 3PH, England
** Department of Law, Brunel University, Uxbridge, Middlesex UB8 3PH,
England
Our thanks are due to Bill Dixon for his research assistance, to Alan Norrie for his constructive
comments and criticism of many of the initial ideas for this paper, to participants at the Critical
Legal Conference, 1995 at Edinburgh University where an early draft of it was presented, and
to James Penner, Karen Busby, and the anonymous referees for the Journal of Law and Society
for their suggestions for improvements of earlier drafts.
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JOURNAL OF LAW AND SOCIETY
VOLUME 24, NUMBER 4, DECEMBER 1997
ISSN: 0263–323X, pp. 504–25
Prostitutes and Persons
ALISON DIDUCK* AND WILLIAM WILSON**
rendered natural, ordinary, and plain when it was interpreted through the
process of ‘neutral’ legal reasoning. Further, these cases demonstrate the
relationship between the legal meaning attributed to words and the political
and material subjects which those words help to create and sustain. Moran,5
in the context of exploring and explaining the homosexual of law makes a
similar point:
[T]he significance of law lies in the fact that it is an important social space, a particular
set of cultural practices through which meaning and order are generated and enforced
. . . The addition of the ‘homosexual’ [as a new legal subject] to the formal language of
law brings into being and authorizes the use of a new category of object and subject
through which law imagines human relations.6
And later:
The peculiar terms that make up the current lexicon of law stand as a resource through
which human relations might be presented and re-presented, fashioned and refashioned,
within and through the important and valued medium of law.7
Recently, another ‘person’s case’ has been decided which in its own way
tells us as much about the way law and society conceptualize gender, sexual
identity, and sexual and legal relations as the earlier cases. In DPP v. Bull,8
the respondent, a male prostitute, was charged under the Street Offences
Act 1959, with loitering, as a common prostitute, in a street or public place
for the purpose of prostitution, contrary to s. 1(1) which states: ‘It shall be
an offence for a common prostitute to loiter or solicit in a street or public
place for the purposes of prostitution’.9The question for the opinion of the
Divisional Court was whether the magistrate was correct in construing s.
1(1) so as to limit it to the activities of female prostitutes and to exclude
from its scope the activities of male prostitutes. The Divisional Court held
that the offence was so limited, despite, among other things, the fact that s.
1 is expressed in gender neutral language throughout, that drafting
orthodoxy specifically imports gender specific language (for example, she or
her) where one sex only is covered and the fact that the Oxford English
Dictionary includes within the meanings for prostitute ‘a man who
undertakes homosexual acts for payment’.10 In reaching its decision, the
Court paid particular attention to the fact that section 1 refers not simply
to ‘prostitute’ but rather to ‘common prostitute’ a term honoured by common
law usage as referring specifically to women.
On its own, this case does not establish any law or theory of law. But as
yet another example of the law’s ‘lexicon’ limiting the representation of human
relations, Bull reinforces historical understandings of male and female sexuality
and how each is regulated by law: women but not men can be constituted
as particular types of sexual commodities and men but not women are
constituted as consumers of those commodities. Demonstrating more than
simply different treatment, then, this creation of gendered criminal identities
appears to come about once again in the Divisional Court through the deceptively
simple intervention of the rules of statutory construction and precedent.
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© Blackwell Publishers Ltd 1997
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