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Human trafficking in Ireland, 2011

Posted on May 14, 2012 by Wendy Lyon

The Irish Department of Justice’s Annual Report of Trafficking in Human Beings in Ireland for 2011 was published recently and I’ve now had a chance to look it over. As you’d probably expect, the coverage of it has been pretty superficial, but that’s not entirely the journalists’ fault: it’s a pretty superficial document, which leaves a lot of really important questions unanswered. That said, no one’s exactly asking them, either.

So here are my thoughts about what this report tells us – and doesn’t tell us – about human trafficking in Ireland in 2011. First, a bit of context. Trafficking is prohibited under the Criminal Law (Human Trafficking) Act 2008, which you can read here. Sections 1-4 are the parts that set out the definition of the offence, and if you don’t mind a bit of legalese it’s interesting to compare them to the international definition set out in the Palermo Protocol on trafficking, which we finally got around to ratifying two years ago. The Irish statute is much wordier, which is entirely typical of domesticised versions of international law: the latter are typically aspirational, unenforceable and constructed through compromise, so detailed definitions are usually neither necessary nor (from a state’s perspective) desirable. The former, however, are the actual law in a country and so need to be drafted with precision.

Length aside, there are three differences I want to focus on between the Irish and international definitions. These are differences in how the two texts deal with what I’ll call the “what”, “why” and “how” of trafficking. The “what” difference is really just technical: in the Irish law (Section 1), “trafficking” itself is a neutral term and is not an offence per se. If you give someone a job, or a place to live, or put them on a bus to another county, you’ve trafficked them. It becomes an offence only if you do these things in a certain way (the “how”) and for a certain purpose (i.e. exploitation, the “why”), which I’ll get to shortly.

By contrast, under Palermo “trafficking” is defined by the simultaneous presence of the “what”, “why” and “how”, so trafficking must always be a crime. I’m not sure that this difference has any practical significance (the Irish statute’s broad definition has no relevancy outside this Act), but it’s one of those things that law nerds like me get excited about.

The second difference, which is much more important, is the restriction that Irish law places on the meaning of “exploitation” (the “why”). Palermo states that

Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs…

The Irish law, on the other hand, spells out what “other forms of sexual exploitation” are included, and draws out (without really adding anything) the non-sexual labour provisions, crucially omitting Palermo’s “at a minimum” phrase. So whereas in international law a highly abusive practice with all the other elements of trafficking could conceivably qualify as such without fitting into any of the specified types of exploitation, in Ireland at least one of the boxes has to be ticked before the exploitation can be deemed to amount to trafficking. This isn’t a criticism of the Irish law; if it did include an “at a minimum” phrase, it could probably never be used or a person convicted under it would have a constitutional challenge for vagueness. But it helps to explain why it can be so difficult to show exploitation amounting to human trafficking, even where exploitation in the everyday sense is obvious.

The final key difference is similar; it’s the way the two texts define the “how”. In the Protocol, it’s

by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person

Here, too, there’s a catch-all that can potentially encompass a very broad range of circumstances. It’s the clause about “abuse of power or of a position of vulnerability”. A person with limited migration and/or employment options is almost by definition in a position of vulnerability; a person with the ability to facilitate or deny them access to those options is by definition in a position of power. What constitutes “abuse” is not defined, and is therefore open to a wide degree of interpretation (and ideological spin).

The Irish law adds a significant qualifier to its version of this clause: under Section 4(1)(c) of the 2008 Act, abuse of this type is only sufficient to bring about a trafficking charge if it

cause[d] the trafficked person to have had no real and acceptable alternative but to submit to being trafficked

So, in Ireland the abuse has to pretty much reach the level of coercion before the law is breached. This is pretty clearly an intentional narrowing of the Protocol’s definition, and gives rise to what could be an important question in adjudicating trafficking cases: who decides what is a “real and acceptable alternative”, and how?

Where children are concerned, both the Protocol and the Irish law have a similar feature in that they both disapply the “how” provisions: as long as the “what” and “why” are present, the child has been trafficked. And the Irish law adds a few things to the “what” of child trafficking. I’ll come back to this later.

So after that rather lengthy introduction (I didn’t actually think it was going to be that long when I started it, apologies) let’s move on to the actual report. We’ll begin with the statistics since that, unfortunately, is what people are usually most interested in. Page 8 has a table summarising the data on victims reported to the Department by the Irish police, An Garda Síochána:

Then on page 17, there’s a table of the victims reported to the Department by NGOs:

A couple important things here. First, the report states that the figures in the first table should be assumed to largely include the figures in the second table, although the Department’s Anti-Human Trafficking Unit didn’t collect personal data on the victims so couldn’t be entirely sure.

The second important thing is that these are all reported – not confirmed – victims. In the first table, they are persons whom the police investigated as possible trafficking victims. In the second table, they are persons whom the NGOs (according to page 6)

believed exhibited indications of having been trafficked

In a similar vein, that strange “uncategorised exploitation” category in the first chart is explained on page 3 to mean that

while at the time of reporting there were general suspicions that these persons could be victims of human trafficking there were no firm indications that either labour or sex trafficking had occurred

.

So regard must be had to the possibility that in some of these cases there actually was no human trafficking. And the figures, of course, do not take into account those cases that were never detected or reported at all. As with every other human trafficking report in every other country, it is really a record of human trafficking (and alleged human trafficking) reporting, rather than being a record of human trafficking itself.

Page 10 gives a breakdown into age category, cross-referenced with exploitation category. Unfortunately all under-18s are lumped under the heading of “minor”; it would be useful to have more information on where the 7 reported child victims of sexual exploitation and 4 child victims of labour exploitation (plus one each of “both categories” and “uncategorised”) fell on the age scale. It’s all the same legally, of course, but I think there are few people who don’t recognise some kind of difference between a 17-year-old and a 7-year-old – at the very least they would call for rather different preventive approaches.

In terms of the child sexual exploitation, recall what I said above about the broad definition of “trafficking” where children are concerned. Just this week we had this case, in which a man was charged with attempted child trafficking after pulling a girl off her bicycle with the aim of abducting and raping her. A horrific crime, to be sure, but not exactly what most people think of when they see headlines like this. Those who are tempted to see those 13 reported victims as evidence of a growing problem of child trafficking (as it is commonly understood) should bear in mind that some of them may have actually been victims of a type of abuse we’re much more familiar with in Ireland.

Page 11 gives a breakdown of region of origin, and there’s no surprise here: around two-thirds were from outside the EU, which in most cases means they had very restricted, or no, access to the legal labour market. This, as I’ve discussed repeatedly, is a major risk factor for trafficking (both for sexual and non-sexual exploitation). Six of the reported victims were Irish, and the article linked to in the last paragraph says that they were all underage although I can’t find that in the report. Nine were EU citizens, but we don’t know from where – and this is very important, because it too would affect their access to the labour market (Romanians and Bulgarians, remember, are still generally excluded).

Page 14 gives their immigration status:

Under the table is this footnote:

Please note that the reported immigration status reflects the status of persons at the time the information was provided to the AHTU and not when persons were reported to An Garda Síochána.

So with the presumed exception of the EU/Irish citizens, we have absolutely no idea what status the victims entered the country with, or what their status was at the time they were being trafficked within Ireland. That’s a shame, because it would be useful to know whether they’re coming in as asylum seekers, on work permits or bypassing border controls completely (by, for example, crossing the land border with the North). It would also be useful to know how many of them entered the asylum system after being trafficked because the possibility of refugee status offers them their only hope for remaining in Ireland.

On that note I’ll turn to the figure for “Administrative Arrangements”: this is the status for people who have been recognised by the police as victims of trafficking, and allowed to remain for a “reflection and recovery” period. At first glance it seems striking that only one person out of 57 has been granted this status. But there are a couple things worth bearing in mind. First, the main effect of the AA status is to give (limited) protection against deportation – so it doesn’t in any case apply to Irish and EU citizens, who have their own protections already. Thus it’s really one person out of 42. More significant are the figures on page 26, on the “Criminal Justice response to human trafficking”. This states that trafficking investigations are still ongoing in 32 cases (out of a total of 53 – some of these cases account for more than one of the 57 victims); in one case the claim was withdrawn; and in 6 they couldn’t find enough evidence to show that any trafficking took place. In such circumstances, the grounds for recognition really aren’t there. So now we’re down to one person given AA status out of 14 confirmed trafficking cases (that’s assuming that those 14 actually are “confirmed”, which isn’t explicitly stated on page 26 but seems to be the implication). And we don’t know how many of these 14 victims were Irish or EU citizens and so not entitled to AA status anyway. There were 15 reported Irish/EU victims in 2011, so conceivably it could be all of them. On the other hand, it could be none of them. Without better data, we don’t know – but we shouldn’t jump to knee-jerk conclusions based on one quick glance at the overall numbers.

The final thing I want to look at is the breakdown of cases reported by NGOs, by exploitation category and gender. Page 17 states that 22 of the 27 NGO cases were sexual exploitation, and one was labour + sexual. Page 19 says that all of the 27 were female.

It would be easy to cynically assume from this that Irish NGOs just aren’t interested in labour exploitation or in male victims. And, in fact, two of the four reporting NGOs do only deal with sexual exploitation, and one of these only works with women. But the Migrant Rights Centre Ireland, for whom I have huge regard, focuses pretty much exclusively on labour exploitation and takes a gender-neutral approach. And in fact, only a day or two after this report appeared, the MRCI were quoted on the evening news as saying they’d found something like 167 cases of forced labour in the past few years (I can’t find a link to this news broadcast, so you’ll have to take my word for it). So why did they only report 4 cases of labour trafficking last year?

I don’t have a definitive answer to that question, but I can think of a possible explanation. Quite simply, the Migrant Rights Centre exists to promote migrant rights. And human trafficking is not a rights-based concept. It should be, ideally, but trafficking law as conceived at both national and international levels is fundamentally a criminal justice instrument, aimed more at punishing perpetrators than protecting victims.

From this perspective, the Administrative Arrangements would be problematic even if they were liberally applied. Their main purpose (as you can read here) is to facilitate trafficked persons in assisting police with their inquiries. If and only if the person agrees to do so, they will be given temporary residence permission, but it’s clearly envisaged that eventually (i.e., when the investigation is complete) they’ll be repatriated.

That’s great if you’re one of the (very small percentage of) trafficking victims who was forcibly removed from your home country, and you want to return. It’s great if you left home voluntarily but have since decided that you want to return. It’s great if you harbour such (justifiable) ill will toward your traffickers that your paramount concern is to see them punished for their crimes. But if you just want to get on with your life and achieve the goals that you came to Ireland for in the first place? Not so much.

Since the MRCI deals only with victims of labour exploitation, it’s likely that a lot of them would have arrived in Ireland on a work permit. Although a work permit is valid in respect of one employer only, the stated Department of Jobs, Innovation and Enterprise policy is to allow a change of employer in cases of exploitation. (It’s questionable how well this policy is actually adhered to, but at least it’s an option on paper.) Unlike the Administrative Arrangements, a work permit offers a path to long-term residency and citizenship. Why, then, would a person who was subjected to forced labour – at least one who had a work permit to start with – want to pursue it as a trafficking case? There seems to be very little in it for them.

I could be entirely off base here, but even if this isn’t MRCI’s reason for not reporting forced labour cases as trafficking, it’s still a valid concern. The trafficking laws have little or no benefit for trafficking victims who entered the country on work permits – and by the same token, the DJIE policies which do benefit those victims (when they’re actually applied) are not an option for most people trafficked for sexual exploitation. Some researchers lament that victims of forced labour are much less likely to be considered “trafficked”, but it seems in Ireland they might be better off that way.

I said earlier that this is a report about reporting, so perhaps it’s fitting that one of the only things it strongly suggests is that Irish law discourages certain reporting. It’s hard to draw many other conclusions from the report. Trafficking itself is unmeasurable, but the very limited data provision here really doesn’t help us much in understanding what’s going on. Researchers and activists in this field should demand better information, rather than simply seizing on largely meaningless numbers which make easy headlines while actually telling us nothing.

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Exporting the problem – Irish abortion, Swedish prostitution

Posted on April 22, 2012 by Wendy Lyon

During last week’s Irish parliamentary debate on a bill to allow life-saving abortions in Ireland (it failed), Clare Daly of the Socialist Party stated:

This debate is not about whether to allow abortion in Ireland. Irish abortion exists; it just does not take place in Ireland.

Daly was, of course, referring to the several thousands of Irish women each year who travel abroad to obtain a procedure that is illegal in their own country. As advocates of reform have regularly pointed out, the strict legal regime has not abolished the reality of abortion in Ireland; it has simply exported the problem. In the words of another supporter of the failed bill, Independent member John Halligan, it has simply led to “abortion tourism”.

I thought about this today as I was reading the Swedish government’s 2012 submission to UNAIDS, which among other things “addresses” what Sweden is doing in the way of HIV prevention and treatment for people who sell sex. I use the scare quotes because in truth, the report fails to address this issue in any but the most pathetically cursory fashion, as can be seen from the fact that the government didn’t even bother to collect data for it:

There is, however, a very interesting comment about the people who buy sex, on page 29:

Annual reports from Swedish social workers who meet buyers and sellers of sex indicate that the number of Swedish men who pay for or give other than a monetary form of compensation for sex is increasing. The increase seems to be due to purchase of sex when travelling to places where the sale of sexual services is common rather than purchase of sex within Sweden [21]. HIV and STIs are often endemic in these destinations.

A similar point is made on page 28, referring to “widespread sex tourism”, and on page 19, which says:

Among people born in Sweden, about 45 cases associated with heterosexual contact were reported per year in 2010-2011. A majority of these cases (65%) contracted the disease abroad, mainly in Thailand (60%).

I followed that footnote 21 from the first quote and found this report, a 2011 study by Niclas Olsson for Malmö City Social Resource Management, whose title Google-Translates as Mobility and commercial sex: A report on HIV/STI prevention by person and situation with a particular focus on Sweden, Denmark and Thailand. Here are a few of its more interesting findings:

There is a lot of Swedish sex tourism to Thailand, and it’s not just middle-aged men. A 2011 study is cited by Manieri and Svensson, Sex Tourist Risk Behaviour, An on-site survey among Swedish men buying sex in Thailand. I cannot find the original online. According to Olsson (page 19), the researchers collected questionnaires from 158 Swedish men who bought sex in Bangkok and Pattaya. They ranged in age from 20 to 70+ with a mean of 45; half of them had bought sex previously, and over a third planned to do so before their arrival in Thailand.

Olsson also interviewed a number of service providers, some of whom confirm that Swedish men of all ages are buying sex in Thailand. Jonny Harborg of the Triangle Youth Clinic in Malmö even describes it (page 31) as a father-son bonding experience for some:

Jonny also met with a small number of guys who travelled with their fathers, whose parents were divorced. They have bought various forms of sexual services together with their parent. Jonny says that the framing of sun, sand and holiday in Thailand, where father and son buy sex together is very special…

A significant minority fail to protect themselves and their sex partners.
In the Manieri and Svensson study, 70% said they always used a condom when buying sex, 6% never did – for a total of nearly one-third of Swedish punters whose condom use with Thai sex workers is inconsistent or nil (page 50). The Olsson report goes on to say that the 18-25 group in particular is increasingly travelling to Thailand and coming back with STIs. That’s, erm, not good.

There is a lot of Swedish sex tourism to Thailand, redux. Or at least a lot of wanna-be Swedish sex tourists. Page 46 refers to a Thai sex tourism web forum on which about 9600 people from Sweden are registered. Sweden’s population is just over double that of Ireland (south), so that would equate to around 4500-4600 people from the 26 Counties. I invite Irish readers to imagine the outraged NGO press releases, Seanad Independent Private Members’ Motions, and sensationalist TV3 “documentaries” if it was discovered there were 4500-4600 of us signed up to Thai sex tourism web forums.

Swedes are also buying sex in Denmark. On page 20, it is stated that men crossing the Öresund to punt account for “the largest mobility” within the regional sex trade. This is probably not surprising, however…

Swedes are also selling sex in Denmark, according to page 22. And there is repeated reference (pages 20, 38, 39 and 41) to Thai women resident in Sweden who “commute” to Denmark to work in brothels. There’s no indication that this movement is anything but voluntary, although one wonders why it hasn’t drawn the attention of those who equate any form of migrant sex work with trafficking. Finally,

The “traffic” isn’t all one way: clients come to Sweden, too. A sex worker interviewed for the report, identified as “Lovisa”, says on pages 45-46 that she has had clients “from, inter alia, Dubai, England, Germany, Italy and Denmark”. Page 23 cites the National Board of Health and Welfare as finding that in Sweden generally, and the Malmö region particularly, “there has been an increased internationalization and migration, as the sex trade traffic crosses national boundaries in several directions in a transnational market”. On page 36, Suzann Larsdotter and Jonas Johnsson of the RFSL say they have seen “an increase in international mobility for both buyers and sellers” in the LGBT community, and also refer to exchange students in Sweden who earn their income by selling sex. Clearly, not even the Swedish sex industry is immune to the forces of globalisation.

So what’s the point of all this, anyway? Well, first of all, it can’t be demonstrated that Swedish sex tourism has increased because of the sex purchase ban – if indeed it has increased at all, which we also don’t know (although Sweden’s UNAIDS submission appears to suggest that). Nor is that in itself a reason to reverse the ban. I certainly think there are troublesome aspects to a law that diverts sex buyers to the developing world, especially the objectionable distinction it makes between “our” women and “theirs”, but it’s futile to go down that road when we haven’t got the data to show the law does that in the first place.

The real significance of these reports, I think, is that they demonstrate the failure of the sex purchase ban in one of its primary aims – in fact, its most important aim, according to some of its supporters. It has not had the normative effect it was supposed to have, persuading Swedish men of the inherent wrongness of paying a woman for sex. Even the ones who grew up under the law don’t seem to have gotten that memo: the popularity of sex tourism among the younger age group seems to demonstrate this pretty conclusively.

I expect that the law’s supporters would react to this like supporters of Ireland’s abortion laws. “Just because we can’t stop people travelling to another country to do it doesn’t mean we should allow it in this country.” And perhaps it doesn’t. But it is time for supporters of the sex purchase ban to acknowledge that, as Clare Daly pointed out about Irish abortions, Swedish prostitution still exists. Even when it doesn’t take place in Sweden.

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The porn/rape/consent debate, again

Posted on April 2, 2012 by Wendy Lyon

Last week, an Irish Examiner journalist attended the launch of the Rape Crisis Network Ireland’s Factsheet on sexual violence and older women in Ireland – and came away with the impression that the most newsworthy aspect of the launch was what the RCNI’s Director had to say about porn. In his report, titled Overexposure of young people to porn is “like a car crash”, the journalist wrote:

Teenagers are being damaged by overexposure to pornography, with Ireland in the grip of a “catastrophe” of sexual violence, the Rape Crisis Network of Ireland has warned.

Executive director of the RCNI Fiona Neary said such was the prevalence of pornography in society that it could affect young people’s views of sexual consent which, matched with growing levels of alcohol use, was “like watching a car crash”.

She said young people were being exposed “to much more pornography than we realise”.

“I think if the Department of Education doesn’t clearly start looking at programmes which address the messages of pornography, we are really running into trouble,” she said.

I wasn’t at the launch, so I don’t know if that really was a significant theme on the day, or if the journalist just thought it made for better copy than a report on older people who survived sexual abuse. But I thought it was a strange issue to be raising at that launch anyway, given what the statistics in the Factsheet show. Of the 77 women who attended a Rape Crisis Centre in 2010 to discuss their own sexual abuse, 57.1% had only been abused in childhood, and an additional 16.9% had been abused in both childhood and adulthood. The Factsheet doesn’t break down the “adulthood” category any further, but it’s probably safe to assume that a significant proportion of this abuse happened in early adulthood; in this study 72% of Irish rape victims were found to be between the ages of 18-30 at the time of the event.

So what we can conclude from this is:

  • Most of the abuse discussed in the Factsheet took place prior to 1973 (when a person aged 55 in 2010 reached adulthood); and
  • A pretty big chunk of the rest of it took place prior to 1985.

All of which makes for a pretty tenuous link between pornography and the acts of sexual violence discussed at this launch. Sure, porn existed before 1973, and was accessible even in what was still a strongly Church-dominated Ireland in 1985, but it’s hardly likely that the rapists behind this Factsheet had the kind of “overexposure” to it that the Examiner piece describes. So I’m not really sure why this launch was used as an opportunity to blame sexual violence on the ready availability of porn.

The article goes on to say:

On the consistent levels of sexual violence across generations [the RCNI Director] said: “It is a catastrophe in Irish history that has not been officially recognised.”

And that just emphasises the point. I don’t know if the levels of sexual violence have truly been consistent across generations – that’s one of those things you’ll never get accurate measure of, anyway – but there’s an obvious logical difficulty with claiming that something in modern society is making a social problem worse while simultaneously accepting that that problem has actually always been as bad as it is now.

It’s certainly arguable, of course, that the increased availability of porn is preventing a reduction in sexual violence that would otherwise occur. That’s the only way I can think to reconcile those two contradictory premises. But that premise itself is so wildly speculative, unprovable and intuitively unlikely, it’s not surprising that nobody seems to be making that argument – at least openly.

This isn’t the only time recently I’ve seen porn blamed for something that clearly predates it. In a recent AlterNet article called The Absurd Myths Porn Teaches Us About Sex, authors Noah Brand and Ozy Frantz quote “college student Lynette” as saying:

I actually had a guy tell me I was wrong…If I was rubbing my clit, it wasn’t real masturbation. He didn’t even know about the G spot…

Um, I’m pretty sure men were largely ignorant about women’s bodies and how we reach orgasm long before there was porn, AlterNet. Anyway, back to the RCNI launch. Neary went on to helpfully spell out exactly why she thinks porn leads to sexual violence:

One of the problems with pornography is consent is never discussed. People in pornography, regardless of what they are doing, are always presented as being up for it, or else rape is presented as being enjoyable.

So, either there’s not enough consent shown in porn, or there’s consent shown where it wouldn’t actually be given. There’s an element here of trying to have it both ways, but consent isn’t always a black-and-white issue in real life and I think it’s a fair criticism that those nuances are typically ignored in porn. But is that really as problematic as Neary claims? It might be, if porn was the only exposure that men and boys had to (hetero)sexual negotiations – perhaps then they really would start to believe that women never do say “no”. But very few men and boys see nothing but porn, and female rejection of male advances is a common enough theme in mainstream media – particularly that which is aimed at adolescent males. What basis is there to assume that young men only internalise what they see in porn?

But I have another, more serious, concern about this line of thought: it has the potential to create a “porn defence” to rape. In Irish law (which was modelled on a similar British statute), rape is defined as having sexual intercourse with someone in the knowledge that they are not consenting or with recklessness as to whether they are consenting. Thus, if the accused genuinely believes that consent has been given, legally there is no rape. The jury doesn’t have to simply take his word that he believed that, of course, and when they’re deciding whether he really did think consent was present, one of the things they must take into consideration is whether there were reasonable grounds for him to think so. But – and this is really important – ultimately what matters is whether the jury thinks that he did believe it, not whether they think it was reasonable for him to believe it. In legal terms, it is subjectively rather than objectively assessed. So if the jury finds that it was a ludicrous belief but one genuinely held, they are obliged to acquit. They are only obliged to convict if they consider the belief so ludicrous that the accused couldn’t possibly have really held it.

And the problem is, it’s precisely the Rape Crisis Network here who are telling us that it isn’t a ludicrous belief; that in fact this is what porn does to its viewers. (As the similarly-minded Catharine MacKinnon put it in Only Words, “pornography makes rapists unaware that their victims are not consenting”.) Do the RCNI really want to be pushing this line? Do they want to see their own words free an accused rapist who claimed that he watched so much porn, he genuinely believed that his victim meant “yes” when she said “no”? What response will they give when defence counsel tells the jury that “even the Rape Crisis Network acknowledges that pornography can have this effect on men”?

Of course, societal factors influence our behaviour, and the line is sometimes fine between acknowledging this and absolving people of responsibility for their own actions. But in a culture already predisposed to rape apology, surely the last thing we should be doing is inventing more reasons for why the men just can’t help themselves.

One thing I do agree with Neary on, and it’s a point made even more strongly in that AlterNet piece, is the urgent need for proper sex education. In that regard, it’s worth pointing out that only around a quarter of Irish secondary students are getting any sex ed at all in the schools – and it’s likely that the quality ranges from mediocre to abysmal for most of that quarter. But this too is a longstanding failure in Irish society (AlterNet is US-based, but the situation is hardly much better there) and shouldn’t be framed in terms of its relevance to a porn-saturated world. Give the patriarchal state a choice between cracking down on sexual expression and actually teaching young people the things that they need (and have a right) to know about sex, and you can bet it will opt for the former.

Finally, even though I don’t agree that porn’s portrayal of consent is the catastrophe the RCNI makes it out to be, that doesn’t mean I think it’s not worth discussing. There are a lot of people these days making what they call “feminist” (or otherwise “transgressive”) porn; what those labels actually mean is debatable, but at the very least they imply a willingness to depart from the usual conventions of the genre and there’s no reason the conventions of consent can’t be one of them. Perhaps there is porn out there that does depict the issue in a realistic fashion – I’d be happy to hear about it if there is. And if there isn’t, it’s certainly a valid question why not.

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Sex trafficking in the Netherlands: should we believe the hype?

Posted on March 18, 2012 by Wendy Lyon

At some point in any debate over the legal status of sex work, supporters of prohibitory laws will invariably claim that sex trafficking has skyrocketed in the Netherlands since prostitution was legalised there, that this is a known fact not even disputed by the Dutch authorities and that this proves that legalisation and decriminalisation lead to an increase in sex trafficking.

It’s an argument that has always annoyed me, first because of its obvious cause-and-effect fallacy and second because the Dutch model is not one that is supported by any sex workers’ right advocate that I know of. It’s not unlike invoking the USSR to argue against socialism – in fact, it’s just another logical fallacy, the straw man.

Nonetheless, it’s something that comes up so often I thought it really couldn’t be ignored, so I had a look at the most recent (2010) Report of the Dutch National Rapporteur on Trafficking in Human Beings. The Rapporteur’s role is described on this page:


The Rapporteur’s main task is to report on the nature and extent of human trafficking in the Netherlands, and on the effects of the anti-trafficking policy pursued…

The Dutch Rapporteur works independently and reports to the Dutch government…

The Bureau of the Dutch Rapporteur of Trafficking in Human Beings keeps in contact with and gathers information from individuals, organisations and authorities involved in the prevention and combating of human trafficking and in giving assistance to trafficking victims.

For their information, the Rapporteur and her staff have access to crimnial [sic] files held by police and judicial authorities. Because human trafficking often occurs across borders, the Bureau also has many contacts abroad and co-operates with international organisations.

This, I think, is as close to an “authoritative” source as we’re going to get. The usual caveats about measuring hidden/illegal economies obviously apply.

So let’s go straight to the statistics, which are maintained by a body called CoMensha. As sex work opponents claim, these do show a significant increase since the law reform of 2000. Here’s the chart on page 92:

So, case closed? Well, hardly. The Rapporteur herself states that:

The likely explanation for the increase is the intensification of investigations by the police and the public prosecution service, as well as the growing attention to human trafficking. It is also possible that there is greater awareness (and in more agencies) of the need to report victims of human trafficking to CoMensha.

[internal references omitted]

In other words, the numbers aren’t actually increasing, we’re just finding more of them. The Rapporteur could of course be entirely wrong about this; perhaps the recorded increase does reflect a real increase as well. I quote her here only to point out that what sex work opponents portray as an undisputed fact actually isn’t.

But even if you take her words with a grain of salt (she may be independent of the government, but she’s still appointed by them), there are a number of problems with these figures. The first becomes apparent after a moment’s glance at the chart: the number of detected victims actually remained fairly steady for a few years after the law reform, and in fact was significantly lower in 2003 than it was in 2000. Bear in mind, these are only detected victims, and the actual number could have varied in either direction. But on the face of it the numbers don’t seem to support the claim that legalisation itself is behind the increase. You might expect there to be some lag in the law’s effects, but a sharp increase after an initial slump strongly suggests there’s something else going on there.

The real spike in the numbers occurred after 2005, and it should be apparent from the shape of the curve that something significant happened at that point. Sure enough: in 2005 the Dutch law on trafficking was amended, to cover non-sexual labour and the trade in organs as well (previously it had only applied to sex trafficking). So, a certain amount of that increase has nothing to do with the sex industry. How much of it? Well, on pages 174-175 the total number of victims specifically linked to the sex sector in the years 2007, 2008 and 2009 is given as 338, 473 and 419 respectively. So here is that chart again, with the number of reported sex trafficking victims for those years noted in red:

In fairness that probably understates the case a bit, since in each of those years there were upwards of 200 reported victims whose sector of exploitation was unknown. I’ll come back to this in a minute, but for the time being we can reasonably assume that some of these were in the sex sector. Even taking that into account, though, it must be clear that the expansion of the trafficking law beyond the sex industry has a lot to do with the impression of a recent trafficking explosion.

Another interesting point is made on page 91. While the usual reaction to statistics like this is to assume that they underrepresent the real numbers – because so many victims go undetected (something I certainly acknowledge) – there is also the possibility that they overstate the case as well. The Rapporteur explains:

it is possible that the persons reported to CoMensha are not all actually victims, so the number of registered victims could also be higher than the actual number of known victims in the Netherlands. This is because there is no formal assessment based on specific criteria by which the registered person’s status as a victim can be verified.

The broad categories of “notifiers” (persons and groups reporting victims to CoMensha) are charted on page 99:

This looks to me as though basically anyone can report a “trafficking victim” to CoMensha, and CoMensha will include that person in its data without ensuring they truly qualify. That must call into question whether the numbers have been inflated through misrepresentation of their actual victim status. A footnote on page 91 says that “very vague reports” will not be registered, but also that CoMensha “has no firm criteria for defining a ‘vague report’”. Also worth pointing out is this bit on page 111:

For almost a third of the victims reported to CoMensha since 2007, it is not known whether they had already been exploited or, if they had been exploited, in which sector.

There are two separate issues here. First, what exactly are the criteria for identifying someone as a trafficking victim if they have not “already been exploited”? I don’t think that identification would be unjustified if, say, they were intercepted en route to a brothel when they thought they were being taken to work in a restaurant, but it’s not at all clear whether that level of certainty is being applied. (I’m reminded of the often-cited statistic of 100,000-300,000 children trafficked in the US every year, which actually refers to children who are simply deemed to be “at risk” of sexual exploitation because of their personal circumstances, such as runaways, and may never actually face exploitation at all.) There’s clearly potential here for erroneous inflation of numbers – and certainly for the statistics to include people who might not be included in the statistics of other countries which only count the “already exploited”.

The second issue is the part about it not being known which sector the victims were exploited in. As mentioned above, these unknowns have accounted for more than 200 trafficking cases per year. What exactly does it mean for a sector to be unknown? That the notifier didn’t know the sector, or that they knew it but didn’t report it? I can certainly accept, given the nature of human trafficking and the trauma its victims can suffer, that it may be possible in some cases to recognise that a person has been trafficked without being able to ascertain the sector. But 200+ per year strikes me as an awfully high number of indeterminate-sector cases, and I would have to question whether some of these reports can really be taken as evidence that trafficking occurred at all. If on the other hand the notifier simply didn’t include the sector in their report to CoMensha, that question doesn’t arise – but you would wonder why CoMensha wouldn’t go back to the notifier and ask for clarification, since it’s a pretty important variable.

Another interesting thing I noticed was in the tables indicating the nationality of victims (pages 160-167). These also include the ranking of the top five nationalities – and the number one nationality of reported victims, since 2004, is Dutch. In fact, Dutch victims have accounted for at least a quarter of all reported victims since 2006, and for nearly two-fifths in 2007-2008. I found that extraordinary. It is true that trafficking can occur within state borders, but it’s fairly unusual for a state to recognise its own nationals as trafficking victims, at least on such a wide scale.

It’s difficult to explain this anomaly without more information, such as a breakdown of the sectors in which the Dutch victims were exploited. The only hint is in the fact that the proportion of these victims who were underage has averaged to 30% since 2006, suggesting that the “loverboy” phenomenon may be implicated. But that doesn’t account for the majority of cases. One possibility could lie in the Dutch definition of trafficking, which to my reading is extraordinarily broad. The UN definition is often said to boil down to “movement, control and exploitation”; however, the Dutch law allows for convictions without any “movement” element at all, within or across state borders. Note Article 1.1.6, which defines a trafficker as anyone who “wilfully profits from the exploitation of another person”. I would suggest that applies to more bosses than it excludes.

If the Dutch authorities are applying this broad a definition of trafficking, is it any wonder the numbers are as high as they are?

In fact, when you take all these qualifications into account it’s quite possible the Dutch figures aren’t excessively high at all (by “excessively high” I mean in comparison with other countries; even one case is too many, of course). Let’s go back to that 2009 figure of 419 sex trafficking victims. Seems a lot higher than Sweden’s 2009 number of 34 (see page 35), doesn’t it?

But first of all, they don’t seem to be comparing like with like. Pages 10-13 of that Swedish report discuss the nationality of the victims and from what I can tell they are all foreign; the report refers specifically to people being trafficked into Sweden. Now this could mean that Dutch people are being trafficked in the Netherlands while Swedish people are not being trafficked in Sweden, but more likely is that Sweden simply uses different terminology for its own nationals who experience “trafficking” within Sweden. So, what we need to compare the Swedish number to is not the total number of reported sex trafficking cases in the Netherlands, but the total number of sex trafficking cases of non-Dutch citizens in the Netherlands. We don’t have that exact number, but the Dutch report states that in 2009, 26% of all trafficking victims were Dutch nationals; if we apply that percentage to the sex trafficking victims we get a rounded figure of 109. Subtract that from 419 and we can estimate now that in 2009, 310 people were reported as sex trafficked into the Netherlands.

Next thing we have to look at is who is doing the reporting. The Dutch figures reflect reports from all sources; the Swedish figures reflect only police reports. In 2009 the Dutch police reported 61% of all Netherlands cases. Applying that figure to the 310, we can estimate that the Dutch police reported 189 cases of sex trafficking into the Netherlands. This is still significantly higher than the 34 cases of sex trafficking into Sweden reported by the Swedish police, but you see how the difference narrows when you take greater care to ensure you’re comparing the same things.

We’re left with figures that suggest a sex trafficking rate in the Netherlands around 5.5 times greater than the rate in Sweden. According to Googled World Bank statistics, the Netherlands’ population is around 1.75 times greater than Sweden’s, making the Dutch rate disproportionate by a factor of 3.75 – you’d expect the Dutch police to report 127.5 cases of sex trafficking rather than 189. So that’s 61.5 cases in 2009 that can’t be accounted for by the population difference alone. I can think of several possible reasons for this extra 61.5 that have nothing to do with the legal status of prostitution (other things that make the Netherlands a more attractive destination country, like its location and climate; or the much broader definition of “trafficker” in Dutch law; or operational differences in Dutch and Swedish police approaches to trafficking), but we really are in the realm of pure speculation at this point.

Of course, we’d need a more detailed set of statistics to really compare the two countries anyway. It’s quite possible that there is actually a wide disparity between sex and non-sex trafficking behind the percentages applying to overall trafficking which I used to arrive at that 189 figure. But that disparity could go either way, so it can’t be assumed that I’m underestimating the real difference between reported cases in Sweden and reported cases in the Netherlands. I could, in fact, be overestimating it and the actual figures could be much closer together. The point of this exercise is not to make any claims about the actual rate of sex trafficking in the Netherlands, but simply to show that there is a wide variety of factors behind the reported rates – and that you can’t simply compare sets of figures from two different countries without considering how all these factors could influence the results.

Another relevant question is how the Dutch numbers after law reform compare to the numbers before it. The most recent Rapporteur report doesn’t give figures from before legalisation, but I was able to find them (in somewhat different format) in the First Report, on page 49:

So clearly the problem was growing in the Netherlands even before legalisation, and perhaps the law change was entirely irrelevant to a trend that was developing anyway. However, even if the law itself had an effect, the report suggests this may be due (at least in part) to a reason that is very different to the one put forward by the anti-sex work movement – and it’s a reason that echoes a point I’ve made over and over again on this blog.

To put it in context: In the latest report, the Rapporteur states (page 26) that the purpose of the 2000 law reform was to

legalise a situation that was already tolerated.

The first report had gone into this in much greater detail, saying on page 11 that prior to 2000

in practice a distinction was made between voluntary and involuntary prostitution and the government in principle limited its concern for prostitution to regulating the exploitation of voluntary prostitution and combating involuntary prostitution. Because the ban on brothels…was still in the Penal Code, this policy in practice meant that the exploitation of voluntary prostitution in the Netherlands was in fact tolerated. This toleration developed in the course of time from a passive tolerance to an active tolerance (Venicz c.s., 2000). Passive tolerance meant permitting the establishment of prostitution businesses, as long as they did not cause any inadmissible nuisance or other articles of the law were not infringed. Active tolerance, on the other hand, meant the government taking controlling action so as to guide developments in a particular direction by various measures. A classic example of this is the system of tolerance orders or licences for brothels and other sex establishments used in many municipalities at the end of the 20th century, by which requirements and stipulations were laid down for their establishment and operation. And so in the 20th century the government did take virtually no action against brothels, except in those cases involving manifest abuses, exploitation of involuntary prostitution or disturbance of public order, peace and safety. In spite of an earlier attempt to amend article 250bis Penal Code in the Eighties, the ban on brothels was finally only abolished from the Penal Code on 1 October 2000.

Now, you might read this thinking that the 2000 law didn’t actually change a thing, and that what we should be talking about here is not what happens when prostitution is legalised but when it is tolerated. But there is an important difference between the two, and it’s one that has been noted in the context of Australian law reform as well:

Police, of course, under a legal system which officially legitimises certain forms of prostitution or certain places, are obliged by the government to enforce laws on other prostitution in order to justify the “legalisation”.

So what are the “other forms of prostitution” which were tolerated in the Netherlands until 2000 and are now enforced against? Well, one of them is prostitution by non-EU migrant workers (or those from EU countries excluded from the Dutch labour market). The legality of sex work notwithstanding, it usually isn’t an option for them unless they have residency on some other ground; it is impossible to get a work permit for the Dutch sex sector and very difficult to get recognition as a self-employed sex worker. And thus, as the sex workers’ rights group De Rode Draad told the Norwegian Ministry of Justice in 2004,

The situation for immigrant women has become much more difficult. Formerly these women’s work was tolerated in the same way as other sex workers’. With the legalisation of one group of women, the work of another group of women now becomes illegal. (page 34)

The Rapporteur’s current report doesn’t really go into this, but it does quote from an earlier report (the third) which addressed it in some detail, noting on page 22 that:

A number of NGOs have repeatedly argued that where aliens cannot work legally in the sex industry in the Netherlands but are still interested in doing so, a ban on or obstacle to doing this legally means a considerable risk of becoming dependent on third parties, with exploitation as a potential and harmful consequence. They therefore regard the ban on issuing work permits for prostitution work in salaried employment and the conditions that are or may be imposed on subjects of Association countries who want to come and work in the Netherlands as self-employed prostitutes as encouraging [trafficking].

So in other words, if it is the case that trafficking has increased as a result of legalisation, it’s because of changes in the government’s approach to migrant sex work, not to sex work generally. It’s an issue of immigration law rather than prostitution law. This, I think, is absolutely critical to a proper understanding of sex trafficking in the Netherlands – whether the actual rate is going up, down or sideways.

What about the claims of exploitation in the legal sector? I’ve seen all sorts of statistics thrown around about this, used to justify the argument that you can’t protect sex workers by legalising the industry. The Rapporteur doesn’t cite any data on this topic, but does accept the existence of these abuses and the failure of Dutch policy to adequately address them. On page 140 she states,

the view that entering the profession was an individual’s free choice that should be respected…may have obscured the sight of forced prostitution, especially since establishing a licensing system for the prostitution sector was expected to make licensed prostitution more manageable, and hence lead to eradication of abuses in the sector. Over the last decade, the emphasis in attitudes towards the prostitution sector seems to have shifted to the vulnerability of the sector to human trafficking. Several notorious cases that have shown that widespread exploitation can also take place in the licensed prostitution sector have undoubtedly been a factor in this.

Well, if Dutch lawmakers assumed that licensing on its own would sort out coercion in the sector then it’s hardly any wonder they’ve had problems. If that was all that was needed, there would be no abuse in any legal and regulated sector, and clearly that is not the case. Here, the report shows the risks not of legal prostitution per se, but of a poorly thought-out scheme which lazily equates “legal” with “non-exploitative”. I suspect that if Dutch lawmakers had taken more input from Dutch sex workers when drawing up their law, this might have been pointed out to them.

Since people frequently seem to have trouble grasping this point, I’ll close by reiterating that these reports cannot be assumed to reflect the actual amount of sex trafficking in the countries they relate to. No really accurate, reliable measure is possible – and the true numbers could be either higher or lower. But if one legal model is going to be advocated over another on the basis of the trafficking rates under those models, those doing the advocating have to find some basis to show that a model has the effect they ascribe to it. This requires showing that, as best as can be determined, not only is there more trafficking under one model than under another but also that there is a causal link between the model and the trafficking rate. The Dutch Rapporteur’s report could support the anti-sex work argument on the first count, but the statistics are not sufficiently disaggregated to say for sure: we don’t know enough about them to pull out all the things that the Swedish authorities aren’t counting and make a like-for-like comparison of the numbers.

The report actually does more to support the claim of a causal link, in the sense that it acknowledges risk factors connected directly or indirectly to legalisation (the laissez-faire approach to the licensed sector and the restrictions on some foreign workers). But the crucial thing here is that these are causal links to the Dutch model of legalisation, not to legal prostitution per se. They could just as easily be used to support arguments for the establishment of a proper inspection scheme, or for allowing non-EU migrants to work in the industry – two things that can only happen in the context of legalisation, decriminalisation or de facto tolerance.

So to answer the question in the title of this post: no, but we shouldn’t discount it entirely either. It may be impossible to say for sure whether the Netherlands actually has more trafficking than other countries, but it definitely has a legal regime which in some ways seems to facilitate it. The reasons it does so may not be the ones put forward by the anti-sex work movement – but that doesn’t make the need for change any less compelling.

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Children’s rights must not mean women’s wrongs

Posted on March 11, 2012 by Wendy Lyon

Last month the Irish Minister for Children, Frances Fitzgerald, announced that the long-promised referendum on the rights of children would finally be held this year.

The background to this lies in the following provisions of the Irish Constitution:

Article 41
1. 1° The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.
2° The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.
…
3. 1° The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.
…
Article 42
1. The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.
…
5. In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.

The proposed referendum, as agreed by an all-party parliamentary committee, would leave Article 41 intact but remove those two subsections of Article 42. The replacement text is rather lengthy so I’ll just provide a link rather than post it all here.

The impetus for this change comes from a series of judicial and policy decisions, which have been seen as making it so difficult to interfere with the sacred institution of The Family (and more particularly the marital family) as to effectively tie the State’s hands when it comes to child protection and welfare. A few examples:

  • The 2001 case Northwestern Health Board v HW, where the Supreme Court upheld the right of parents to refuse to allow their child undergo the PKU test, a totally safe procedure to detect a disorder that leads to brain damage if untreated.
  • An unspeakably horrible case of familial abuse in County Roscommon, revealed a little over a year ago. You can Google it yourself, I don’t have the stomach for it. The mother had obtained an injunction preventing the children being removed from the family home; her affidavit cited the rights that she and her husband, as a married couple, had over their children. Social workers on the case confirmed that Article 42 had a sort of chilling effect on their efforts to protect the children, as it led them to believe they would need to prove a nearly impossible threshold of neglect.
  • The 2006 “Baby Ann” case (N v Health Service Executive), in which a two-year-old girl was ordered returned to her birth parents. They had consented to her adoption, but changed their minds and subsequently married – at which point, according to Justice McGuinness, the rights of the family took over from the best interests of the child as the “central issue”. (Actually, on the peculiar facts of this case the birth parents would have had a decent argument even without the constitutional imperative, but there are obvious reasons to be concerned about the court’s emphasis on the primacy of the marital family.)

So you can see why there’s widespread support for amending the Constitution to specifically enshrine the rights of children. What little opposition there is is mainly coming from two of the most repellent groups in Irish society: the xenophobes, who fear the amendment being used to prevent deportation of Africans with minor children; and the uber-Catholics for whom any interference with the marital family is anathema. (It hasn’t gone unnoticed that the list of amendment opponents reads like a Who’s Who of the Irish anti-abortion movement – whose concern for the rights of children clearly ends at birth.) Ironically, although the latter group is far more organised and politically powerful than the former, it is the deportation issue that is actually holding the referendum up. I was present at a private meeting a couple years ago where a then-Cabinet Minister, a current Cabinet Minister and a backbench member of the other current government party all agreed that the wording would have to be changed to assuage those fears.

Irish feminism, on the other hand, seems to be pretty much entirely behdind the amendment, and that’s fairly understandable. After all, the primacy of the marital (read: patriarchal nuclear) family hasn’t exactly done us many favours; and while the amendment won’t remove Article 41.1, it clearly will narrow its scope. But while I wouldn’t argue that we should vote “no”, I do think some important issues have been overlooked in the debate. Consider the following:

  • In 2006, the High Court ordered that a Jehovah’s Witness be given a blood transfusion (subscription required) contrary to her express wishes, the first time this was done to a competent adult. Counsel argued and the Judge accepted that her child’s need for a parent overrode her right to refuse medical treatment.
  • In the US, women have lost custody of their children for working outside the home, being lesbians and even reporting domestic abuse.
  • According to a representative of the fabulous Association for Improvements in the Maternity Services Ireland who I was speaking to recently, some Irish women have been threatened with prosecution – yes, prosecution – if they insisted on giving birth at home rather than under the full control of the professional (and strongly male-dominated, and extremely paternalistic) medical industry.

What these cases all have in common is that they’re examples of the “best interests of the child” being used to further a patriarchal agenda, in which motherhood automatically strips women of their autonomy. Make no mistake about it, this isn’t just the standard assumption of self-sacrifice that having children always entails; it’s the quite deliberate channeling of women with children – whose primary identity is now “mother” – into tightly prescribed roles, with the legal system there to act as enforcer.

I’m being a bit deliberately melodramatic here and I’m not suggesting that passage of this amendment will actually turn us all into Stepford wives. But I don’t think we should be complacent about the risk of “children’s rights” becoming another tool of state misogyny. Let’s not forget that this is a state where woman’s primary role as housewife and mother is actually enshrined in the Constitution (Article 41.2, for readers abroad). Do you trust all of our judges to read the new amendment in a way that protects children’s rights without trampling on women’s? I don’t.

I’m also uneasy about the way this amendment could be read in juxtaposition with Article 40.3.3, on the right to life of the “unborn”. Judging by some of the cases coming out of the US at the moment, it seems that pregnant women in some states might be only a few years away from being forcibly institutionalised to prevent them doing anything that might possibly lead to the birth of a less-than-perfectly-healthy baby, such as having the odd glass of wine or eating too much junk food. It’s a strange sort of logic that allows women to be penalised for “neglecting” foetuses that they have every right (at least on paper) to abort, which I suspect is why those laws aren’t more widespread throughout the US than they are. Here, of course, the constitutional position on abortion is no impediment to such laws – and with a mandate to protect both the rights of (actual) children and the rights of the “unborn”, there is, I think, a worrying possibility that this American trend could catch on here.

Again, and just to be perfectly clear, I’m not saying that feminists should oppose the amendment. In all likelihood I will vote for it myself, on a simple cost-benefit analysis (as in, I think overall it will probably do more good than harm). And I don’t have any suggestions as to how it could be worded to avoid these nightmare outcomes, especially while the odious Articles 40.3.3 and 41.1-2 remain. But we shouldn’t be leaving it to the racists and religious fanatics to highlight its possible unintended consequences. We should be putting the State on notice that although we want to see better protection for Irish children, we are not going to tolerate it becoming yet another tool to oppress Irish women.

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On Rush Limbaugh, slut-shaming and whorephobia

Posted on March 4, 2012 by Wendy Lyon

I imagine that most readers by now have heard of the latest outburst by the right-wing American egomaniac Rush Limbaugh. On his radio show he referred to a Georgetown University student who had testified before Congress on the need for contraception to be included in health care coverage. Misidentifying the woman (whose first name is Sandra), he said:

What does it say about the college coed Susan Fluke, who goes before a congressional committee and essentially says that she must be paid to have sex? What does that make her? It makes her a slut, right? It makes her a prostitute.

Limbaugh’s comments understandably (and correctly) led to outrage, and he was eventually forced to apologise after his advertisers started doing wobblies. It’s rare enough that he apologises for any of the garbage he spews, so it has to be seen as at least a small victory that sufficient pressure was brought to bear on him for this one.

Nonetheless, some of the reaction has made me a bit uneasy. Limbaugh is one of those people who can’t understand why a woman would want to be anything other than barefoot and pregnant, so his ignorance of the importance we place on access to contraception is hardly surprising. That’s not what prompted the almost unprecedented level of condemnation. Nor did the anger focus in on what I think is the real issue, namely, his attempt to silence her by making her into an object of sexual ridicule – with the implication that any other woman who dares speak her mind on this subject will meet the same fate.

While some of the criticism got this point, too much of it centred on the idea that Limbaugh had defamed Sandra Fluke by use of the terms “slut” and “prostitute”. A good example was this petition I was asked to sign:

Pull your advertising from Rush Limbaugh’s radio program immediately and permanently. He called a Georgetown Law School student testifying before Congress about women’s access to birth control a “slut” and a “prostitute.” His reprehensible remarks are an attack on all women, including women who are your customers.

The blurb accompanying the petition underscores the point by saying

We will not let Republicans brand women who assert their right to health care as “sluts” and “prostitutes.”

There’s a clear subtext here – and it’s a rather nasty one, reinforcing the same old good girl/bad girl dichotomy that I always thought feminism stood against. Sandra Fluke is just a woman who needs birth control (for her long-term monogamous relationship, no doubt), not because she sleeps around for fun or to earn her living. And how dare you “brand” her, Rush, by suggesting the latter?

The irony is that this has taken place after nearly a year of “slutwalks”, in which many women of the same demographic as Fluke appears to be – white, middle-class, educated, soft-left – have marched to “reclaim” the word “slut”, to work toward, according to the Slutwalk movement’s founders, “reappropriating the word ‘slut’ to mean someone who is confident in their sexuality…and not ashamed of enjoying consensual sex.” Does that petition sound like it was written by someone who thinks being a slut is nothing to be ashamed of?

Throw “prostitute” in with that and you get some good old-fashioned whorephobia which is, unfortunately, something white western feminism isn’t exactly unknown for. The bile that the likes of Melissa Farley has thrown at sex workers is out of fashion these days, with anti-sex-work feminists preferring a “love the sinner, hate the sin” approach. But it’s hard to see anything but a deep contempt for women who do sell sex, where the accusation of selling sex is deemed an unpardonable affront.

And lest anyone try to argue that those who have responded in this fashion are not offended by what Sandra Fluke was called, but merely by the fact that (seemingly) false and irrelevant allegations were made, let’s consider what would have happened if Limbaugh had used a different term. Say, “lesbian”. This is also a word that has been used to describe women who stand up for their rights, in a manner aimed at discrediting and silencing them. It is, however, a word that 21st century feminism would never consider an insult in its own right. If that was the word Limbaugh had used, I think it’s highly unlikely it would have aroused the same kind of outrage – and if it did, any petition would be very sensitively worded and would make absolutely clear that the objection was contextual and not to the suggestion of lesbianism per se. Because nowadays feminists (generally) don’t stigmatise women for the who of their sexuality – but some, it seems, are still happy to stigmatise women for the how many and the why. The women in question are stigmatised enough by society, sometimes with deadly consequences, without us adding to the hate.

Just as a postscript: I emailed the petition authors with my views on the matter, and received back a standard “thank you for your comments which we shall consider” reply. I then went ahead and signed the petition anyway because, as I said, there is a genuine issue around Limbaugh’s attempt to silence. But I added a comment to my signature stressing that that is the real issue – and that if Sandra Fluke did happen to be a slut or a prostitute, there would be nothing wrong with her anyway.

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On surrogacy, slavery and choice(s): My response to Breda O’Brien

Posted on March 3, 2012 by Wendy Lyon

Breda O’Brien is a conservative Catholic and columnist with the Irish Times, notable for her resolute adherence to church doctrine in all matters reproductive. She has become notorious for crackpot columns like this one, a response to the horrific case of the 9-year-old Brazilian girl who was raped and impregnated with twins by her stepfather and whose mother and doctors were excommunicated after getting her an abortion. (Her rapist, quite tellingly, was not.) The column is behind a pay wall, but to summarise, O’Brien’s response was first to grab her own 10-year-old daughter and put her on a scale to compare her weight with that of the Brazilian girl, and ultimately to proclaim that if the same thing happened to her own daughter the pregnancy would be carried to term.

Last Saturday she wrote this piece, which I hope can still be read without subscription. It’s an attack on surrogate motherhood, which she condemns as “just another form of slavery” and wants to ban, although she does not clarify exactly what form this ban would take. The clear implication of her column is that surrogacy is something only done by desperately poor women in the developing world, which isn’t actually true; here, for example, is the website of a Canadian woman who seems to have become a professional surrogate and encourages others to do the same. I don’t think she’s aiming her “Information on how to become a surrogate mother” at Kolkata slum-dwellers – but even if she was, the possibility that they might rationally consider surrogacy a better option than their alternatives is one that O’Brien simply cannot fathom.

I sent a response to the Irish Times but, true to form, they didn’t print it. In fact, they haven’t printed any replies, which is unfortunate (I can’t believe mine was the only one). This is an increasingly important issue – not least because of the gap in Ireland’s laws which means that some children produced through surrogacy are ending up stateless – and as Ireland’s paper of record, the Times has a responsibility to facilitate debate on it and not to simply print one side of the argument and leave it at that.

Anyway, here’s the response that I wrote.

Breda O’Brien raises a valid point about the potential for exploitation of women as surrogate mothers, although her invocation of slavery to describe what is more likely to be a preference among limited options is unfortunate. Real slaves do not get to make even constrained choices.

It is not clear, however, why surrogacy should pose any greater legal dilemma than adoption, which O’Brien seems to believe should be not only legal but mandatory when a woman has an unwanted pregnancy which she would otherwise abort. Is it not also a form of surrogacy to compel a woman in this circumstance to bear the child for the benefit of another woman?

Furthermore, O’Brien is silent about exactly HOW Ireland should make surrogacy illegal. Would she criminalise a woman who becomes pregnant on behalf of another? Would she force such a woman to become the legal mother herself? Or would she simply deny Irish couples the right to recognition as parents of a child born through surrogacy, leaving the child and birth mother to whatever fate awaits them under the laws of their own country (in the hope this will never be Ireland)?

Finally, O’Brien fails utterly to address what will happen to the women who become surrogate mothers due to lack of other options. Those who use protection from exploitation as a reason to deny a source of income to persons in poverty have a responsibility to outline how they expect those persons to compensate – now, not in some future utopia where there are adequate alternatives available.

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Thoughts on last night’s Prime Time

Posted on February 8, 2012 by Wendy Lyon

RTÉ’s Prime Time did a special last night on “Profiting from Prostitution”. It focused on the organised brothel sector, which mainly involves migrant women from non-EU countries, and as you might expect the situations of the women depicted in it ranged from dodgy to horrifying. It’ll no doubt be a major topic of discussion in the country today, so here are my two cents about it.

First, it’s worth recalling that what the programme depicted is already illegal. It’s illegal to run a brothel in Ireland. It’s illegal to knowingly profit from another person’s prostitution in Ireland. It’s illegal to advertise commercial sex in Ireland. So the kneejerk reaction that what we need are more criminal laws doesn’t really stand up to scrutiny. Perhaps if the police did not spend so much time targetting sex workers who flat-share they would be in a better position to go after these genuine abuse cases.

Secondly, there was a complete lack of any contextualisation of migrant women’s options in Ireland. Absolutely nothing was said about the fact that these are, by and large, women with nowhere else to go because they cannot legally work in Ireland. At one point the journalist asked “Why don’t they try to escape?” and I thought, surely now, it will be pointed out that “escaping” for them means a one-way ticket back to their country of origin – but no, not a word. The answer that was given instead focused entirely on fear of the person(s) controlling them, and while I have no doubt many of them are in such fear, it is hardly likely that is the whole story. New York’s Urban Justice Center published a report on the use of raids to fight trafficking, and interviewed many of the women “rescued”; they found that even those who appreciated the law enforcement intervention (which many didn’t) said that they would have left their situation voluntarily if only they knew where they could go. This is likely to be the case also for many of the women in Ireland, and it’s a major hole in the programme that it did not even consider it.

The programme also played to an anti-immigrant agenda, which unfortunately was reflected in some of the comments posted about it on Twitter. Here’s just one example:

While there was no explicit mention of the Swedish model, the programme concluded with the cliché that “none of this would exist if there wasn’t demand by Irish men”. The implication of this, clearly, is support for end-demand policies along the lines of those in Sweden. It’s worth highlighting what those policies have actually meant, in the context of “profiting from prostitution”:

According to one informant in Göteborg, there are probably more pimps involved in prostitution nowadays. The informant says the law against purchasing sexual services has resulted in a larger role and market for pimps, since prostitution cannot take place as openly.

A woman engaged in indoor prostitution in Göteborg relates that when the law took effect in 1999, about ten women engaged in prostitution from various Eastern European countries approached her business because they wanted to hide indoors. Informants from the Stockholm Prostitution Centre also mention that the law has opened the door to middlemen (pimps), because it has become more difficult for sellers and buyers of sexual services to make direct contact with one another. – Swedish National Board of Health and Welfare, Prostitution in Sweden 2007, pp 47-48.

Now contrast this with the situation in New Zealand, which largely decriminalised its sex industry in 2003 and now allows up to four sex workers to share premises without becoming subject to brothel licensing laws:

Some brothel operators report difficulty attracting staff to work in brothels…Some brothels have closed down with operators citing the lack of staff and increasing competition for workers because of sole operators/SOOBs [Small Owner-Operated Brothels], as reasons for the failure of their business. – Report of the Prostitution Law Review Committee on the Operation of the Prostitution Reform Act 2003 , p 38

It is also worth pointing out that the facile reduction of the economics of commercial sex to “no demand = no prostitution = no trafficking” has been questioned by a number of studies, one of the most important of which is Bridget Anderson and Julia O’Connell Davidson’s Trafficking – a Demand led Problem? Of course, artificial demand can be created in any market, and it would be foolish to expect the sex industry to be any different – but then, I’m regularly amazed at how often sex work is considered to be immune from ordinary economics principles.

One final note. While the faces of the women in this programme were blurred, I have absolutely no doubt that most of them could be easily identified by the people who know them, and unquestionably by those they are working for. I would have real fears that the people controlling some of these women could decide to punish them for the things that they said. I don’t know what, if anything, RTÉ is doing to try to avert this possibility but it has a responsibility to ensure that the innocent subjects of its investigations do not suffer harm as a consequence – and if it does not live up to that responsibility, it must be held to account.

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Why can’t a woman get a life-saving abortion in Ireland?

Posted on February 5, 2012 by Wendy Lyon

Ireland has produced many brave and influential women whose lives have helped change Irish society, but it’s a tragic irony that one of those who’s had the biggest impact – and sparked the longest-running controversy – is someone whose name we don’t know, who was only 14 when she came to our (and the world’s) attention and who you can bet would have given anything to have never been heard from in the first place.

She’s known as Miss X, and 20 years ago she was raped and impregnated by a much older family “friend”. Ireland is still governed by 1861 (!) legislation which makes abortion a crime punishable by life imprisonment, so her parents took her to England. When they contacted Irish police to ask if the embryonic remains might be useful as evidence, the police contacted the Attorney General, who promptly sought an injunction to compel her to return to Ireland and remain for the next nine months.

This astonishingly cruel and repressive act was “justified”, according to the Attorney General, by Article 40.3.3 of the Constitution. Passed by referendum in 1983, the Article reads:

The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

Miss X, however, was threatening suicide if she was forced to bear her rapist’s child and so her lawyers argued that her own right to life – also protected by Article 40.3.3 – was engaged. In the High Court, Justice Declan Costello (who was eulogised on his death last year for his commitment to social justice) applied a crude balancing test to reach his decision: if Miss X was forced to continue the pregnancy, she might die, but if she was allowed an abortion the foetus would die. He thus granted the injunction barring her from travel.

On appeal, the Supreme Court took a different approach: a majority deemed abortion permissible under Article 40.3.3 where it is established, as a matter of probability, that there is a real and substantial risk (not necessarily an immediate or inevitable one) to the woman’s life. The risk of suicide, it held, fell within these exceptional grounds.

The government responded to the decision – and the controversy engulfing Irish society – by putting three more referenda to the people (the Irish Constitution can only be changed by referendum). One would have overturned the X decision to the extent that it deemed suicide a risk entitling a woman to an abortion. The second would clarify that Article 40.3.3 did not impinge on the freedom to travel outside the state – a necessity since a majority of the Supreme Court had also felt that the rights of the “unborn” would supersede the right to travel where there was no risk to the pregnant woman’s life. The third aimed at resolving another ongoing controversy, allowing information to be made available about legal abortion services outside the State.

The Irish people voted sensibly, around two-thirds defeating the first referendum and slightly smaller majorities passing the other two. This still left the State with one of the most restrictive abortion laws in Europe, however – and the cowardice of successive governments, in refusing to legislate for the decision, means that 20 years on we still don’t know exactly what it means in real terms. How is it to be determined whether a pregnancy poses a real and substantial risk to life? Who gets to decide? And what remedies are available to a woman denied an abortion despite believing she falls within the criteria set out in X?

There are no answers to these questions – and the consequences for some women are dire. In 2010, a woman named Michelle Harte from County Wexford, a cancer patient, was advised by her doctors at Cork University Hospital that she should have an abortion because of the threat posed by her pregnancy. However, the hospital ethics committee – which apparently did not read the X judgment very carefully – overruled this advice, deeming the risk to her life insufficiently “immediate”. The identity of those on this “ethics committee” is unclear, but it is stated to include a number of non-medical people, including some with “theology and philosophy backgrounds”. What kind of bullshit policy allows theologians to overrule doctors’ decisions about the medical risk to someone’s life?

Another woman harmed by the lack of legislation in this area is known to us as “C”. She was one of three plaintiffs who challenged Ireland’s abortion laws before the European Court of Human Rights, which found in her favour (although not in the other two’s) in December 2010. In a ruling that was entirely predictable after the 2007 Tysiac v Poland case, the ECHR held that Ms C’s Article 8 (private and family life) rights had been breached by the State’s failure to make abortion actually available in the extremely limited circumstances where it is legal. (Ms C, like Michelle Harte, was a cancer patient; she testified that she could not even get medical advice on the risks posed by her pregnancy, such was the chilling effect of the anti-abortion criminal law.)

The State is obliged to abide by the rulings of the ECHR (although there is little in the way of enforcement mechanisms) and so, as a practical matter, it has one of two options. It can either amend the Constitution to remove the “due regard to the equal right to the life of the mother” clause – thereby making abortion illegal even to save a woman’s life – or it can set out a clear and transparent mechanism, with a proper appeals procedure, for women who believe they meet the X criteria.

To readers outside Ireland, the fact that this even poses a dilemma for the government must seem indescribably bizarre – something you might expect to find in the Taliban’s Afghanistan or Khomeini’s Iran, but not in an ostensibly modern, advanced OCSE country in northwestern Europe. And in fact, it’s pretty bizarre to us too. A referendum to remove the right to a life-saving abortion hasn’t a hope of getting past an Irish public that believes by almost nine-to-one that such abortions should be legal. It’s notable that in the two referenda that have attempted to roll back the X decision – the one immediately following the judgment in 1992, and a second one a decade later – it was only the eligibility of potential suicides that was at issue; the possibility of taking the right away from women facing other risks to their lives, women like Michelle Harte and Ms C, wasn’t even contemplated. Why on earth would it be contemplated now?

And so, as Choice Ireland noted several months before that predictable ECHR decision, the Irish anti-abortion movement have taken a different tack: they’re now picking a fight with the English language. In regular ludicrous press releases and columns like this one, they’re trying to convince a (not-buying-it) public that there is no need to protect the right to a life-saving abortion, because there is no such thing as a life-saving abortion, because – wait for it – it isn’t really an “abortion” if the purpose is to save the woman’s life. It’s a “necessary medical procedure”, or something to this effect. Which just happens to end in the death of the foetus or embryo. Got that?

Now you know, and I know, and anyone who’s ever opened a dictionary knows, that that’s a load of rubbish and there’s not a chance of the law being changed to reflect it. But what the hardcore anti-abortion movement lacks in logic and public support, they more than make up for in political power. Quite simply, the major political parties in this country are scared shitless of them – and I mean all the major political parties, not just the two right-wing ones (Fianna Fáil and Fine Gael) that have consistently pledged not to legislate for the X case. The two next-largest parties, Labour and Sinn Féin, both support the right to abortion in life-saving and a couple other scenarios, but neither trusts a woman to make up her own mind about the decision. In fact, prior to the last election (which returned five members of the United Left Alliance), there was not a single pro-choice party in the Irish parliament. And even the ULA declined to campaign on the issue during the election, although to their credit they’re starting to make up for that now.

A consequence of this hold that the foetalists have over politicians is that more than a year after the ECHR decision (and, of course, twenty after the X case) we’re still waiting for implementation. And we’ll be waiting a while more. The government “met” its obligation to tell the ECHR how it was going to implement the decision by stating that it would establish an “expert group” to consider how to implement it. Just telling that to the ECHR took six months. It took another seven to announce who was being appointed to the group and the group’s terms of reference. The group’s conclusions are to be reported back to the government in a further six months. What happens then is anyone’s guess.

There are a lot of aspects of this story that I find sickening, but perhaps none more so than this: we in Ireland are in the midst of several years of austerity budgets, which this and the last government have justified by saying they need to make “hard decisions”. So they have made the hard decision to cut income supports for working and unemployed people, lone parents and those in need of extra assistance to care for the children they have. They have the made the hard decision to impose new stealth taxes and increase VAT, all of which will have a disproportionate negative impact on those already struggling to cope. They have made the hard decision to cut funding for community and support services for low-income women and families, and to combine the Equality Authority and Human Rights Commission into a single (and even weaker) body at precisely the time when discrimination against pregnant women and new mothers is increasing. So, the Irish government has no problem making the hard decisions that hurt women and families, and the hard decisions that make it more likely that some pregnant women will seek abortions. But legislating to ensure that a woman who might die without an abortion can get one in Ireland?

It seems that’s a hard decision too far.

Please go here for information on the Action On X campaign, or email actiononx at gmail dot com

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Saying it better than I could ever say it myself

Posted on February 4, 2012 by Wendy Lyon

There are times when I, as a non-sex worker, feel that I nonetheless have something to contribute to the debate with my legal education and research abilities. And then there are times when I feel that I can make the biggest contribution by shutting up and linking to something else. This is one of the latter occasions. Read this. Just do it. I couldn’t possibly add anything more to what it says.

And if you can’t read the whole article – but please, please, you really should – at the very least have a look at the Melissa Farley piece it links to. Never have her vicious hatred and contempt for sex workers, beneath a facade of concern, been so clearly exposed.

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