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On Frances Fitzgerald’s bill to criminalise clients

If you read this blog, you’re probably aware that Irish Justice Minister Frances Fitzgerald recently published the General Scheme of the Criminal Law (Sexual Offences) Bill 2014. And you’re probably also aware that the bill creates a new offence of purchasing sexual services.

But what does the bill not contain? Here are a few notable omissions:

  • No decriminalisation of sex workers. The Minister’s press statement says that “the persons selling the sexual service will not be subject to an offence”, but this is extremely disingenuous. It’s true that the bill does not create an offence of selling sexual services, but neither does it repeal the existing laws that criminalise sex workers. For the street-based minority, these are the laws against soliciting for the purposes of prostitution and loitering for the purposes of prostitution; for the indoor majority it’s the law against brothel keeping, which is often used against sex workers who share premises for their own safety. There is no reason to believe these laws will be used less frequently after the bill is passed; the experience in Sweden and Norway has been that the police target sex workers with whatever means they have at their disposal. If the TORL groups really had sex workers’ interests at heart, they would be shouting as loudly about this as they are about the plan to criminalise clients. They’re not.
  • No alternative income supports for sex workers. The bill aims to take away their sex work income but offers them nothing to replace it. There is no reversal of the cuts to social welfare and child benefit which have undoubtedly pushed more women into prostitution; no increase in the €19 per week given to women in the asylum system; no additional funds for education, training or drug treatment programmes that might open up other options. One might argue that most of these things aren’t within the remit of the Minister for Justice; but equally, one might argue that she should have insisted her Cabinet colleagues address those things before she introduced this bill – which, if it works as intended, will simply take away the option that they had decided was preferable to any others open to them. (Quick quiz: if I have one apple and no oranges, and you take away my apple without giving me any oranges, how many oranges do I have?)
  • No changes to laws that bar employment of asylum seekers and undocumented migrants and that limit the work options open to many of the documented. This one is within Frances Fitzgerald’s remit, and after all the hoopla recently about prostitution in direct provision centres she can hardly plead ignorance on it. Her plan to “address” this issue is to streamline the asylum system so that people spend less time in direct provision; again, if she really believed this was the best solution to asylum seekers having to engage in survival sex, wouldn’t you think she’d do that first?
  • No changes to Garda surveillance powers. In their testimony before a Stormont committee dealing with the same proposal, the Police Service of Northern Ireland said they would be unable to use the wiretap methods that the Swedish police rely on to enforce the sex purchase ban. Well, guess what: the Gardaí can’t use them either. Under the Criminal Justice (Surveillance) Act 2009, they have to apply to a District Court Judge for authorisation to use a wiretap, and this authorisation can only be given in connection with an “arrestable offence” i.e. one carrying a possible five-year-or-more sentence. Which leads me to the next omission…
  • No custodial sentence for paying for sex. The maximum fine is €1,000, and that’s only for repeat offenders – which hardly seems appropriate for an act that groups like Ruhama consider to be a form of violence against women. It’s also worth noting that Sweden recently increased its penalties, while in Norway, some have proposed making selling sex illegal too (in fact, according to a Norwegian human rights activist I met recently, that’s actually the main debate over the law at present) – because merely fining men who are caught paying for sex hasn’t been enough of a deterrent.
  • No change to the hearsay rule. In Sweden, hearsay evidence can be introduced in court, where it is given by a “trustworthy” source such as a police officer. In Ireland, it generally can’t be (there are exceptions, but none relevant here). So if a Swedish sex worker refuses to give evidence that she was paid to have sex with an accused, a Swedish policeman can quote things she said to him at the time of the arrest that would tend to support a conviction. In Ireland, anything she said would be inadmissible unless she went to court and said it herself. I’d imagine the chances of any sex worker agreeing to do this are virtually nil – unless of course the State subpoenas her and forces her to testify in what would be, let’s remember, a public hearing. Tell me again how the groups supporting this law have sex workers’ interests at heart?
  • No provision for review. New Zealand’s Prostitution Reform Act 2003, which largely decriminalised sex work, included provision for a Prostitution Law Review Committee which must report on the effects of the law between three and five years after its commencement (the findings are here if you’re interested, which if you’ve read this far you should be). No such requirement in the Irish bill – underscoring the lack of concern for any evidential basis of this law change.
  • On the plus side, there is also no sign of the particularly draconian measures advocated by the Oireachtas Justice Committee. The Sinn Féin and Labour committee members ought to think seriously about what it says that they advocated laws too repressive even for a Fine Gael Justice Minister.

The General Scheme of a bill is just that – a general scheme – so it is always possible that some of these changes will be made before the text itself is finalised. It could be amended on its passage through the Oireachtas, too. But the odds are against it being amended in any substantial way. As the Minister herself more or less admitted during a recent meeting with sex workers and sex work researchers (I was one of them), the law’s real purpose is symbolic, and its actual effects are of secondary importance. It doesn’t really matter what the bill includes because, to Frances Fitzgerald, it doesn’t really matter what the law does – whether or not it “works”, whether or not it harms sex workers. Sex workers themselves do not matter. This is why their views have been so readily ignored throughout this process: because as far as Irish policy-makers are concerned, the law is not really about them anyway.

About Wendy Lyon

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

10 responses »

  1. I have never heard or read any explanation by supporters of the criminalisation of those who pay for sex as to how such a measure would be enforced as regards escorts. Given that escort (out call services) take place in hotel rooms or private residences it would, I asume be virtually impossible to prove that payment for sexual services had taken place.

    • I think the only way they’d really be able to enforce it in Ireland, given the problems with hearsay and wiretap evidence, is with sting operations using fake escort profiles.

      Which means established escorts will probably gain clients, and those who currently opt out of reviews will probably have to start opting in.

  2. For at least 35 years I have been trying to understand why selling sexual services is a crime but selling one’s soul, or even selling one’s time is not. Sex workers are workers above all. They need the same rights as other workers. Nuff said.

  3. I’d have more respect for TORL and Minister Fitzgerald if they just admitted that their real desire is to abolish prostitution instead of pretending that they are trying to protect vulnerable sex workers from the evils of sex trafficking criminals and pimps.

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  5. I am, in fact, in favour of criminalising clients, but I agree with you, the root of the problem is financial inequality, and one obviously needs to address that first.
    In fact, I read in an article about the Swedish system that it works only because Swedish women get enough welfare to not need prostitution for survival.

    Men who have enough money to pay prostitutes could just as well spend that money for something else. And likely will, if deterred from going to prostitutes.(That is why I don’t think abolishing prostitution would cause millions of people to starve.)
    However, as the asylum seekers can’t get a regular job, this does not apply to them.If they are desperate enough to prostitute themselves as it is, then just taking the clients out of the equation (not that it will work …) would just cause them to starve. Which is not really preferable.

    • Sweden’s relatively generous social welfare system is the main reason Sweden has been considered for decades to have less prostitution than most other countries. Nothing whatsoever to do with criminalising clients, which has not been shown to have any real effect on the number of people selling sex.

      And most women don’t do sex work as an alternative to starving, but whatever their reason is for doing it, that reason would still exist even if clients were criminalised. The main reason not to criminalise clients is not that it leads sex workers to starve, but that it leads them to take greater risks with their safety. See my co-blogger Nine’s excellent post on this here.

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