February/march 1982 | Volume 33, Issue 2
—More than a century ago, the city of St. Louis enacted a well-thought-out plan to legalize vice. What went wrong? Everything .
A little over a century ago an ambitious woman named Kate Clark, who kept a house of prostitution at 112 South Eighth Street, St. Louis, decided to move her business to larger quarters at Sixth and Elm. In any other American city she would have kept her intentions secret or quietly arranged to pay off the police. But this was St. Louis; and on March 14, 1873, Madam Clark confidently wrote directly to the chief of police for “a permit to keep the house on the northwest corner of 6th and Elm Streets for bawdy house purposes. If permitted to occupy the house, I will comply with all the rules and regulations of the ordinance.”
This extraordinary ordinance—commonly known as the “social evil law”—recognized a brothel as a legitimate enterprise that, like a saloon, had to be licensed by the city. Passed by the St. Louis city council on July 5, 1870, and patterned after the well-established regulations of several European cities, the ordinance required brothel keepers and prostitutes to register with the police and pay fees to the board of health. The money was to be used to pay city physicians who examined prostitutes for venereal disease and to aid the hospital where infected women were confined. Next door to the hospital a “house of industry” was planned for women who might choose to learn domestic skills, in hopes that they might pursue a more respectable line of work.
Other American cities prohibited prostitution in law while in fact tolerating it in wide-open vice districts. The prohibition reflected respectable opinion; the toleration, public acceptance of prostitution as a necessary evil. No less a figure than Queen Victoria’s personal physician had argued that, without access to prostitutes, men would seduce or rape innocent women. Other doctors suggested that prolonged sexual abstinence for men might lead to physiological disorders and insanity. Then, too, prostitution was big business from which a great many “respectable” people—real estate agents, landlords, lawyers, doctors, and bail bondsmen, as well as police and politicians—derived a handsome income.
St. Louis based its licensing ordinance on the fundamental premise that, as one prominent local doctor said, prostitution was the “inevitable accompaniment of city life.” By abandoning the legal prohibition against it, which had been feebly enforced at best, the city fathers hoped to bring prostitution under real control. While the regular medical examinations checked the spread of venereal disease, open police surveillance would substantially reduce the crime and disorder that accompanied life in bawdy houses. Finally, licensing brothels in certain designated locations could help protect neighborhoods where their presence would depreciate the value of homes and property.
When the St. Louis city council passed the social evil ordinance by a vote of sixteen to five, it won broad support. The Missouri Republic acknowledged that the ordinance “practically legalizes immorality … [but] the evil cannot be suppressed and therefore the wisest course is to regulate it with proper bounds.” The St. Louis Times congratulated the city council on “the first step taken by any legislative body in this country toward regulating by law that ‘social evil’ which for ages has engaged the attention of moralists.” The clergy generally withheld comment, either because they supported the ordinance or were too embarrassed to mention it. The public by and large seemed to think that the new law should be given a fair trial. Even the Reverend William G. Eliot—grandfather of T. S. Eliot—who hated the law and would prove to be its most steadfast opponent, privately confided to his son in 1871 that the law is established here and so far as visible present results go, it is working satisfactorily to the public.”
One of the most enthusiastic backers of the social evil law was James McDonough, the St. Louis chief of police. In October, 1871, he invited police from across the country to come to St. Louis and see the system in operation. Both McDonough and Mayor Joseph Brown proclaimed it a great success, telling their visitors that streetwalking, the number of brothels, and the number of men visiting them had been greatly reduced. Some visitors were much impressed, but others remained skeptical: one from Washington, D.C., said, “Never have I seen so open and undisguised an exhibition of bawds … exhibiting themselves at every door and window.… We went into one of these institutions where, of all the diseased women I ever saw, there was the most disgusting.…” On the other hand, a Kansas police officer who had visited St. Louis many times reported that he saw fewer streetwalkers than ever before.
During the first eight months of the new ordinance the police registered 1,284 prostitutes in 136 brothels, 9 houses of assignation, and 243 single rooms. But administration of the law soon proved to be more than the authorities could handle. The police were overwhelmed with applications for change of residence, which grew from 821 in 1871 to 5,662 in 1872. A reporter found that months after the police board had given Kate Clark permission to move into her new bordello in 1873, the board of health had no record of the change of address. Women who worked out of single rooms were particularly troublesome, moving frequently and often plying their trade in the streets and in taverns—a practice forbidden by the new ordinance. The city responded by amending the law in 1871: henceforth any prostitute living in a single room would be considered a madam and thus liable to the same ten-dollar-a-month levy as the big operators. This was supposed to concentrate prostitutes in large brothels where they could be kept track of more easily; the actual effect was to encourage evasion of the law. The number of registered prostitutes in St. Louis fell by 45 per cent by the end of 1872, and while this may have reflected a certain number driven out of business, a good many undoubtedly were simply ignoring the law.
The hope that the new ordinance would substantially reduce venereal disease was also nearly lost in the administrative tangle. For the first two years, six doctors were assigned to examine all of St. Louis’ registered prostitutes—and not only to report on their venereal condition but also to collect their registration fees. Not surprisingly they fell far behind in their work, and in desperation some of them began to issue certificates of good health without conducting examinations. A police captain reported that some prostitutes held certificates dated three weeks in advance. In 1873 the doctors were relieved of the duty of collecting the fees but still they were unable to keep abreast of their medical responsibilities. Unfortunately, the women who might have benefited most from examinations and the hospital were the ones most likely to evade the law—”the poor, depraved, and reckless,” as the board of health described them, “who only manage to eke out a short, miserable existence by consorting with men equally poor and degraded themselves.”
By the fall of 1873 the social evil ordinance had come under fire. The Reverend Eliot took the matter to the courts. They would have to determine what the Missouri legislature had intended when early in 1870 it passed a new charter for St. Louis, giving it the power “to regulate” prostitution. Did “to regulate” mean to license? Had the lawmakers been aware of the implications of these words when they had cast their votes? And was this licensing a proper function for St. Louis to assume, given the fact that fornication and bawdyhouse keeping were specifically prohibited by the state?
To test the validity of the St. Louis ordinance, the Reverend Eliot in the summer of 1873 persuaded a city prosecutor to arrest Kate Clark and her next-door neighbor Lizzie Saville for keeping bawdyhouses in violation of state law. The two women were convicted, but in December the Missouri Supreme Court reversed the ruling. The high court interpreted the “to regulate” clause as clearly sanctioning licensing prostitution in St. Louis and as taking precedence over antifornication and antibawdyhouse statutes, which continued to apply throughout the rest of the state. The Missouri legislature could, of course, nullify the social evil ordinance, but only by amending the city charter, and this required a two-thirds majority vote. By now Eliot was prepared to lobby for such action.
Meanwhile, Chief of Police McDonough had become personally involved in an episode that lent more force to Eliot’s campaign. One Saturday night in August, 1873, he decided that his neighbors across the street were making too much noise. The lady of the house, Mrs. Fannie Canivan, was a former registered prostitute. This fact may or may not have influenced the chief’s behavior, but at any rate he took things into his own hands, burst into the Canivan residence, and hauled Mrs. Canivan off to spend the night in jail without bond, saying she was too drunk and disorderly to return home. She brought action against him for “malicious and willful” arrest and unlawful denial of bail. Although he was acquitted, the police board suspended him for thirty days, and in March, 1874, he resigned.
Many people felt McDonough had acted under the mantle of the social evil ordinance and that the new law was giving the police too much authority to interfere in private lives. In March, 1874, seventy-two St. Louis attorneys petitioned the Missouri state legislature to repeal the ordinance, which was “trampling underfoot rights of personal liberty and personal security guaranteed to each and every citizen however humble or degraded. …” The petitioners argued that the ordinance allowed the police to enter any house without a warrant; that they could force women to undergo gynecological examinations against their will and incarcerate them for indefinite periods without due process; and that madams might be forced to provide the police with incriminating evidence, in direct violation of the Bill of Rights. According to the attorneys, an ordinance regulating prostitution posed a more serious threat to civil liberties than one prohibiting it.
Opposition to the ordinance also had been growing among the clergy. To this Mayor Joseph Brown unwittingly contributed. The aspect of the social evil system that appealed most to him was the possibility of the public hospital being used for the moral as well as physical regeneration of its inmates. But none of the St. Louis clergy showed any interest in preaching there, so in November, 1873, Brown himself delivered a sermon there, lashing out at men of God “in elegant churches with richly cushioned pews” who failed to minister to the poor in city institutions.
The churchmen struck back by attacking the whole system. When, in February, 1874, a bill was introduced in the state legislature to repeal the clause in the St. Louis charter permitting the city “to regulate” prostitution, the pastor of the St. Louis First Congregational Church went to Jefferson City to lobby for its passage. Other Protestant clergymen supported repeal, and the Catholic hierarchy of St. Louis encouraged the circulation of petitions against the ordinance. Newspapers, too, began to condemn it. The Democrat explained that the leading Protestant and Catholic pastors’ calling for repeal was “pretty conclusive evidence … that regulating sexual vice … has shocked the moral sense of the people.” Why it had taken three and a half years for the shock to register, the paper did not say.
Anna Dickinson, a nationally known women’s rights leader, came to St. Louis to denounce the ordinance because it did not require promiscuous men to register with the police. What women needed, she said, was not new opportunities to perform as prostitutes but job and educational opportunities equal to those of men. Some four thousand St. Louis women signed petitions for nullification.
Meanwhile, during February, 1874, a number of Missouri lawmakers decided that what was really needed was a firsthand investigation of the Operation. Sixteen state legislators began an evening tour of the vice district, but only three came home. The others spent the night at Kate Clark’s, Lizzie Saville’s, Madam Stillman’s; the St. Louis Globe concluded that at least the lawmakers would “wake up this morning with practical experience of the workings of the Social Evil system.” The publicity did little to advance the cause of the ordinance. By mid-March, 1874, after a tumultuous debate and complicated maneuvering, opposition forces mustered the two-thirds majority in the state senate necessary to repeal the “regulate” clause in the St. Louis city charter. Repeal in the lower house was a foregone conclusion, but few imagined that only one of ninety-one assemblymen would vote to sustain the ordinance. By the spring of 1874, licensed prostitution was finished in St. Louis.
In nullifying the social evil ordinance, the Missouri legislature assumed the burden of finding some alternative. The obvious choice was to impose on St. Louis the same ban imposed throughout the rest of the state. In the absence of licensing, the social evil advocates themselves favored a return to the prohibition—but the legislature thought otherwise. In the spring of 1874, Missouri Lieutenant Governor Charles P. Johnson, a well-known St. Louis criminal lawyer, along with two state senators from the city, sponsored a bill to prevent the sort of abuse of police power in St. Louis that allegedly had occurred when the social evil ordinance was being enforced. It was feared that the St. Louis police, armed with incriminating evidence they had gathered under licensing, might extort protection payments from prostitutes and madams. In passing this bill the state lawmakers declared, in effect, that the St. Louis police could be trusted neither to regulate nor to suppress prostitution and that they should, under penalty of fine, ignore the operation of brothels. For the first time, in fact, the state made explicit provision for fining policemen who entered brothels without a warrant or who attempted to extort money, gifts, or favors from prostitutes and madams. Moreover, the new law had failed explicitly to prohibit the keeping of a house of prostitution—a crucial omission in the light of a subsequent court ruling which held that nullifying licensing did not automatically renew state prohibitions against brothels. They could no longer be licensed, but they were not illegal.
The new legislation did not entirely end police authority over prostitution—streetwalkers were arrested under vagrancy statutes, and efforts were made to prosecute madams under the common law. But by the spring of 1876 St. Louis police became very cautious in raiding houses, and in time prostitutes were bringing police officers into court on charges of false arrest. Between 1874 and 1879 St. Louis came as close as it ever would to “decriminalizing” prostitution-a legislative experiment as radical as licensing.
Of course decriminalization, too, came under attack. An 1877 St. Louis grand jury attributed an alleged increase in crime to the inability of police “to suppress the crimes which inevitably flow from brothels.” Meanwhile, madams began setting up houses in respectable neighborhoods. The St. Louis Post-Dispatch estimated that the spread of the vice district in the late 1870’s cost the city $25,000,000 in property depreciation, but the police insisted that as long as the state law placed special restraints on them, they could do little. There was talk of re-enacting the social evil ordinance, but when the question was put to voters in 1879, licensing was soundly defeated.
That same year the Missouri legislature very quietly repealed all provisions specifically enacted to protect St. Louis brothels from raids and police extortion. This action, coupled with the enactment by the St. Louis city council of an ordinance defining brothel-keeping as a misdemeanor, allowed the police to assert their authority. After ten years’ experimentation, St. Louis joined other American cities in prohibiting houses of prostitution and putting the enforcement of that prohibition in police hands.
The situation remains largely unchanged to this day. Prostitution has of course changed dramatically in some ways: brothels are surely less conspicuous and probably less significant institutions than they were a hundred years ago. Venereal disease remains a terrible problem but only 10 to 13 per cent of the cases in this country can be traced to prostitutes, and as a result there is little incentive to establish the cumbersome licensing system. There is in fact much talk about decriminalizing prostitution just as St. Louis did somewhat inadvertently a century ago, but there is little action. The truth of the matter is that there remains a strong demand for the arrest of prostitutes. Merchants and families argue that prostitutes, unlike private fornicators, must advertise, and their behavior in doing so is detrimental to business and community life. As a result, the women are arrested over and over, fined, detained, and eventually released. They invariably find their way back to the streets. That was “revolving door” justice in 1879 and so it remains today.
But this system, giving police some control of the vice through harassment while providing some protection to the prostitute and general public through due process, may actually be the least bad system we can hope for.