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Is the legality of buying sex in Ireland a “loophole”?

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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.

About Wendy Lyon

Fighting a lonely battle for evidence-based policy and the proper use of apostrophes.

6 responses »

  1. I think it is a rather ingenuous counter to Minister Alan Shatter’s frequent attempts to point out that trying to criminalise one party in any transaction, without the other, under our law would be in such serious conflict with equality legislation and constitutional law as to be totally impractical, regardless of all other considerations.

    Of course, Alan Shatter *is* a qualified and experienced solicitor so he does have an advantage over a nun like Denise Charlton (or do they have lawyer nuns these days?) when it comes to getting minor details like the constitution right…but, sure, God loves a tryer.

    More sinisterly this new “loophole” assertion comes alone, without the demands for decriminalisation of all sex workers that used accompany it.

    Is that the “punishment” because a few of us dared stand on our hind legs in the dog pound and challenge their b*llsh*t?

    Whatever, it is yet another in a litany of betrayals. I hear that many of the street workers had been assured by representatives of Ruhama and “Turn Off the Red Light” that they had nothing to fear as they were campaigning for decriminalisation and a few minor details that would stop the foreign women taking all the clients!!

    But what do you expect from a woman prepared to write this to the Irish Times:

    “Two-thirds of the 57 people rescued from human traffickers in Ireland last year said they were brought here to work in the sex industry; seven of these were children.”

    I do not have the figures in front of me, but, as I recall, most, if not all the 7 children were Irish nationals, and, in every case disclosed, victims of pedophile abduction and/or abuse, and nowhere near the sex industry at all!

    • Well, the other thing is that there weren’t “57 people rescued from human traffickers”. There were 57 people reported as possible cases of human trafficking, but as I’ve pointed out in earlier posts, only 1/4 to 1/3 of these reports have been substantiated. Which is a remarkably small number given the constant dire reports about 1,000+ women in the sex industry of which 97% are allegedly migrants.

      • You know, I think they have been making up their own statistics for so long that they do not bother to read this stuff at all?

        “97%” indeed!

        • I looked at that figure here. It’s the percentage who advertised themselves as non-Irish over the course of a three-month period on Escort Ireland.

          Because, of course, everyone in the Irish sex industry advertises on EI, all were advertising at that particular time, and none of them fudged their nationality.

  2. Errata…sorry, I meant to say:
    “But what do you expect from a woman prepared to write this to the Irish Independent” – so that’s me chastened. :o(

  3. Pingback: Justice served (for now). | A Glasgow Sex Worker

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