More and more lately, I’ve been hearing advocates of a sex purchase ban in Ireland claim that it is a “loophole” in Irish law that makes it legal to buy sex. This letter in today’s Sunday Independent is an example.
The law governing prostitution in Ireland is the Criminal Law (Sexual Offences) Act 1993, which makes it an offence to solicit in public (whether as buyer or seller) for the purposes of prostitution. The Act does not, as that letter notes, make the purchase (or sale) of sex per se illegal.
But is that a loophole?
The word “loophole” implies that when the law was drafted, legislators unintentionally left an aspect of the subject matter uncovered, thereby leaving a particular action legal that was not meant to be left legal. Or as Wikipedia defines it:
A loophole is an ambiguity in a system, such as a law or security, which can be used to circumvent or otherwise avoid the intent, implied or explicitly stated, of the system.
Which means that the absence of a prohibition on buying sex can only be a loophole if the law was actually intended to outlaw the purchase of sex, but was drafted in such a way as to inadvertently fail to do so.
As it happens, Irish parliamentary debates are online and so it’s quite easy to see exactly what the intent of a law was. And here we see the then-Minister for Justice, Máire Geoghegan-Quinn, who introduced the bill, explaining its purpose to the Seanad (Senate):
I have explained in both Houses that prostitution is not illegal. What transpires in private between consenting adults is no business of the criminal law. The law must be concerned with the nuisance and annoyance caused by the public face of prostitution which is, in effect, soliciting, importuning or loitering for the purposes of prostitution.
This really couldn’t be any clearer. There was absolutely no intention in the bill to make the exchange of sex for money illegal, for either party, so long as it takes place between consenting adults behind closed doors. There was neither explicit nor implicit intention; there is no ambiguity. There is no “loophole”.
I suspect that pro-criminalisation advocates know this, and that their use of the word “loophole” is simply a discursive strategy aimed at portraying their proposal as a modest one. It seems to be a reaction to the plan of the current Minister for Justice for a consultation process on whether and how to reform our prostitution laws. By portraying their proposal as the tightening of a loophole rather than an actual policy change, they imply that there really isn’t a need for a consultation process at all, and if it has to go ahead, it should be merely a formality to get over and done with quickly.
It’s a clever enough strategy, but one fundamentally grounded in untruth.