(Published in the Law Society Gazette April, 2016)
The Criminal Law (Sexual Offences) Bill 2015 had a second reading before the Oireachtas on January 28th this year. Alongside more stringent measures against trafficking and underage participation in prostitution and pornography the Bill proposes that the purchase of a sexual service should be a crime with a maximum penalty of one year in prison. I argue that this measure is not appropriate in the present context of income inequality and poverty. Instead I propose a more compassionate approach towards the sex worker in particular.
It may come as a surprise that in Ireland prostitution is not illegal although most activities around it are. The Criminal Law (Sexual Offences) Act of 1993 prohibits soliciting or importuning another person in a street or public place for the sole purpose of prostitution. This applies equally to prostitute and client. It also prohibits living off the earnings of another person, and keeping a brothel or other premises for the purpose of prostitution. Furthermore the Criminal Law (Human Trafficking) Act 2008 criminalises the trafficking of persons for sexual exploitation.
It seems very likely that the Criminal Law (Sexual Offences) Bill 2015 will enjoy overwhelming support in the Oireachtas considering the endorsement of the two former government parties Fine Gael and Labour as well as the support that Sinn Fein and Fianna Fail gave to a private member’s bill the Criminal Justice (Sexual Services) (Amendment) Bill introduced by Thomas Pringle in 2013 which purported to create a similar offence. Interesting, two members of the United Left Alliance Clare Daley and Mick Wallace opposed that bill on grounds of efficacy and with the argument that it unfairly infringed an individual’s right to make a living and increased stigmatisation.
Both bills are based on the so-called Swedish model whose parliament passed a Kvinnofrid (Violence Against Women Act) in 1999 that for the first time criminalised the purchase, but not the sale of sexual services, treating the sex worker as the victim of an inherently violent act. This legislative course has been followed in a number of other jurisdictions including Norway and recently Northern Ireland.
Support for the measure, unusually, might align traditional conservatives and many feminists. Both would agree with Plato’s conviction that: ‘The excess of liberty in states or individuals seems to pass into an excess of slavery’. Freedom to sell sexual services is seen as a form of bondage damaging to the sex worker, or prostitute, and the wider society.
The terminology itself causes difficulties as it has been argued that the term sex worker legitimates this form of employment. However it is employed in international literature on the subject and is preferred for that reason. The term prostitution is retained however in relation to the profession itself.
Advocates of alternative approaches might refer to the ideas on liberty espoused by John Stuart Mill who wrote that: ‘Mankind are great gainers by suffering each to live as seems good to themselves, than compelling each to live as seems good to the rest’. It is thus argued that the right of an individual who has reached maturity before the law to sell freely a sexual services should not be impeded by the criminalisation of his clients.
In Ireland it is estimated that around one thousand individuals (overwhelmingly women) are available or made available for sexual services each day. Most services are advertised online. Gone are the days when an entire street in Dublin was identified with prostitution. Monto or Montgomery Street now called Foley Street, was immortalised in the Nightown-Circe chapter of James Joyce’s Ulysses and in the ribald folk song Take her up to Monto. In the 1920s most of the brothels there were shut down.
Since introducing the legislation the number of sex workers in Sweden has declined significantly, but opponents, particularly sex worker advocacy groups, say that the law has increased the stigmatisation of a sex worker, with occasionally grave repercussions.
There is also a strong suspicion that draconian laws drive the trade underground as sex workers ensure their clients avoid prosecution. One sex worker and campaigner Laura Lee has even taken a legal challenge to Northern Ireland’s legislation to the European Court of Human Rights. She claims it has created problems as clients now refuse to use an online screening process thereby putting sex workers in danger. Apart from the threat of increased violence against sex workers this could have implications for the spread of STDs.
However other countries have experienced serious problems after liberalisation. A 2012 paper in the journal World Development found: ‘Countries with legalised prostitution have a statistically significant larger reported incidence of human trafficking inflows.’ Since full legislation in 2000 (including pimping and brothel keeping) in the Netherlands, prices for sex have fallen and sex workers ‘emotional well-being is now lower than in 2001 on all measured aspects, and the use of sedatives has increased,’ according to a 2007 evaluation by a Dutch justice ministry.
Michelle Goldberg who wrote an incisive article for The Guardian (August 8th, 2014) on the subject makes the good point that: ‘Deciding which model works better is as much an ideological as an empirical question, ultimately depending on whether one believe that prostitution can ever be simply a job like any other.’
But even if we accept that prostitution is inherently violent and exploitative what if the effect of the legislation will be to drive a reduced level of trade further underground? Similarly, we may regard drug use as a social ill but has criminalisation not allowed criminal networks to thrive off illegality?
Moreover we should be aware of the damaging effects of criminalisation in terms of recidivism. Imprisoning more people is surely a course to be avoided where possible. There is no provision in the legislation for educating, rather than shaming, individuals as to the exploitative relationship involved or curing what may be compulsive behaviour.
It might be more appropriate to view prostitution as a response to poverty and inequality. Certainly history bears this out. In Naples 1944 the British Intelligence Officer Norman Lewis discovers an intelligence report indicating that 42,000 out of a ‘nubile’ female population of 150,000 had turned to prostitution due to the extreme poverty experienced in the city after the Allied invasion. All this in a traditional Catholic society.
There are now huge disparities of wealth and poverty in Europe especially with the presence of migrant populations many of whom do not have employment visas. Individuals may not be forced into prostitution but their circumstances may leave them little option. Further criminalisation could make some of them less safe.
Moreover, it is apparent that prostitution is increasingly migrating into the ever expanding transnational pornographic industry estimated to be worth approximately $100 billion. In the absence of a more generalised shift in attitudes towards exploitation, is a potential user of a sex worker not likely to migrate into this sphere where there may be even greater scope for slavery including underage participation?
As an alternative, an approach that falls short of legalisation but which included some form of official registration would reduce the level of trafficking and underage participation. If an individual choses to transact with an unregistered sex worker then he might be prosecuted for purchase. Prohibitions against brothel-keeping, pimping and other exploitative relationships would remain. Police resources could be devoted to tackling the worst excesses of the trade and protecting sex workers.
The state might also assist sex workers who wish to end their participation with specialist programmes that could include counselling services.
On its face legislation which criminalises the purchaser of a sexual service may seem an attractive policy but it may have dangerous side effects for those who feel compelled, or sometimes choose, to work in the trade. Besides outright slavery, it is poverty and inequality that drives participation alongside a failure to address through education the exploitative relations that permeate our societies. This legislation will do nothing to alter these factors and potential users are likely to gravitate to the internet for satisfaction.