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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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Posted in Equality, Politics, Reproduction, The family and tagged , . Bookmark the permalink.

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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Rape, Pregnancy, and Abortion in Ireland.

Posted on February 29, 2012 by Stephanie Lord

The Rape Crisis Network Ireland has released a statement today detailing statistics concerning pregnancies resulting from rape, as well as the number of those women that chose to terminate their pregnancies. It is a timely item for discussion given the recent publication of Medical Treatment (Termination of Pregnancy in Case of Risk to Life of Pregnant Woman) Bill 2012, and the fact abortion is once again, on the minds of many. In saying that, the release of this statement in the context of this legislation demonstrates just how far behind Ireland is – this legislation, if passed, would not actually allow for abortion in cases where the pregnancy was a result of rape.

When pregnancy and rape come up in discussions, anti-choice activists tend to be fairly consistent in their willingness to withhold access to abortion for women when they have been raped, and they tend to anchor their argument in the idea that because pregnancy as a result of rape is “rare” that this somehow means that a woman who has been violated in the first instance should have her body further violated by being forced to carry to term the pregnancy of her rapist. The real meaning of that kind of rhetoric is, “Pregnancy from rape is rare; and you do not own your body anyway; therefore you will not make choices as to what happens with it.”

But even if the assertion that pregnancy from rape is rare was correct, the rarity of a pregnancy does not mean that it is a valid reason to withhold access to abortion for a rape survivor. It is bad enough that anti-choice lobbyists do not believe in the most basic self-determination of a person that would afford a woman a choice as to what happens her body normally, but it really does take a special kind of person to tell a rape victim that she should be compelled to carry a pregnancy of rape to full term against her will.

The RCNI Director Fiona Neary has said of the statistics,

“The RCNI would have concerns that any rape survivor would be subject to restrictions and would have to travel oversees to another jurisdiction in order to access a termination….. RCCs will continue to support survivors in making decisions which survivors feel are the right choices for their circumstances.”

The statistics are so disturbing they deserve to be reproduced here in their entirety;

“In 2010 1,545 survivors of sexual violence attended Rape Crisis Centres (RCCs). Of these, a small number became pregnant as a result of rape; in total 75 girls and women. These girls and women made different choices:

Ten survivors of rape chose to terminate their pregnancies (13%)

Ten survivors chose to place their child for adoption or fostering (13%)

Forty three survivors went on to parent their children (57%)

Nine survivors of rape miscarried or had stillbirths (12%)

Three survivors became pregnant more than once as a result of rape and chose different options in each pregnancy (4%)….”

What is important to note about these statistics is not only were there 75 girls and women who were made pregnant as a result of rape, this figure only represents the number of women who attended Rape Crisis Centres over the course of one year.

This of course does not reflect the total figure of women who were raped during 2010 and did not attend a Rape Crisis Centre – which is much higher, and which would logically leave the figure of pregnancy resulting from rape higher again, and in turn increase the figure of the number of women who went on to choose a termination in this scenario. These numbers may be small, but that does not mean that the experience or trauma of their rape and subsequent pregnancy is somehow lessened by that.

Naturally, for the forced-birth advocates of the anti-choice movement this trauma is utterly meaningless.

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Posted in Abortion, Violence against women. Bookmark the permalink.

Why the X Case legislation is not the 1967 British Abortion Act

Posted on February 27, 2012 by Stephanie Lord


Never ones to miss an opportunity to criticise the pro-choice lobby, the Sunday Independent contained a piece by Eilis O’Hanlon yesterday where she managed to say that although it was “absurd that governments have failed to legislate” on the X Case and that she tended “towards the pro-choice end” of the spectrum of views on abortion, that there was an element of intellectual dishonesty regarding the Bill currently being tabled by Clare Daly TD  and then went on to assert that by enacting this legislation for X Case, more specifically allowing for suicide as a ground for abortion, would lead to a situation similar to England – where abortion is available in a very wide range of grounds (It is not “on demand” as O’Hanlon would have you believe – one must fall in to a qualifying risk category in order to avail of an abortion service). In the article, O’Hanlon says;

“Once they have it in law that abortions can be carried out where the mother’s life is at risk, they immediately start redefining the definition of risk until it becomes meaningless. Daly’s bill explicitly states that the risk of suicide by a mother should qualify as a reason for providing her with an abortion.

The end result, as happened in the UK, is that you would effectively have abortion on demand…” [Emphasis mine]

In fairness to O’Hanlon, she does not actually state that she is against the legislation, but she does do a very good job of trotting out the same tired old arguments against legislation for the X Case trotted out by the anti-choice lobby.

There are multiple problems, myths and lies peddled in the O’Hanlon piece but it is probably more useful to look at the one quoted above in particular, and examine Deputy Daly’s proposed legislation in detail in comparison to the law governing abortion in Britain – the Abortion Act 1967, as this is one of the main arguments being put forward by the less rational and even lesser informed of the commentariat against the Daly Bill; that is to say, if abortion is allowed in any circumstance it will allow abortion by the backdoor.

That is a factually incorrect assertion.

Before looking at the detail of the British legislation, it also may be worth noting the logical outworking of O’Hanlon’s statement here.

Either she is suggesting that a woman could be suicidal and should not be allowed a life-saving abortion in those circumstances where to continue a pregnancy would pose a risk to her life or she is implying that not only would women (under this legislative framework) would enter their doctor’s surgery and fake suicidal tendancies to get an abortion, but also that a either a Consultant Psychologist and a GP, or a Consultant Psychiatrist and a GP, or in a (fake) emergency situation, two GPs, would all happily engage in this ruse so that a woman faking suicidal feelings could have an abortion.

If this is not the implication, then the alternative is that her implication is women (under this legislative framework) would enter their doctor’s surgery and fake suicidal tendancies to get an abortion, but also that a either a Consultant Psychologist and a GP, or a Consultant Psychiatrist and a GP, or in a (fake or real ) emergency situation, two GPs, are not actually qualified to state whether she was suicidal and assess the risk to her life, and that they would err on the side of caution and provide the abortion.

This displays a lack of knowledge of not only medical practice in Ireland, but also medical culture, that renders anything else said on the issue by O’Hanlon as automatically suspect (she also repeats the myth that Ireland is the safest place in the world to go through pregnancy so it was suspect from the beginning anyway).

The Irish health system certainly has its problems, but if O’Hanlon has a genuinely held view that there are legions of GPs, Consultant Psychologists, and Consultant Psychiatrists out there all waiting in the wings to carry out abortions at the drop of a hat when they have no medical basis for doing so (because the risk to the life of the pregnant woman, in O’Hanlon’s world, is not real), and breaking the law in the process and leaving themselves open to prosecution under Sections 58 and 59 of the Offences Against the Person Act 1861 (carrying a penalty of 3 years imprisonment) – then perhaps the real story that the Sunday Independent should be covering is the major inadequacies or the mass malpractice of the medical profession, rather than O’Hanlon’s issues with the pro-choice lobby.

All of that aside, it is clear to anyone who takes the time to read both pieces of legislation in detail that the British Abortion Act 1976 and the Deputy Clare Daly’s Medical Treatment (Termination of Pregnancy in Case of Risk to Life of Pregnant Woman) Bill 2012 are very, very different pieces of legislation – the latter being constitutionally prohibited from providing qualifying circumstances for abortion beyond that where a woman would die if she continued her pregnancy.

Comparing and Contrasting the Legislation

  1. 1.    Circumstances under which medical termination is lawful

The 1967 Abortion Act establishes that abortion is legal in Britain up to the 24th week of pregnancy in a very broad range of circumstances, that is – where the continuance of pregnancy would involve risk to her (including to her physical and mental health) or risk to her existing children etc. In essence, this means that abortion may lawfully be performed where a woman would be better off, subject to the opinions of two doctors (who need not be of consultant rank), by having an abortion than continuing the pregnancy. However, if there is a substantial risk to the woman’s life or if there are foetal abnormalities, there is no time limit. It is important to note the clear distinction between a risk to the life of the pregnant woman, as opposed to a risk to her health. In order to comply with the 1967 Abortion Act, two doctors must give their consent to the procedure, stating that to continue with the pregnancy would present a risk to the physical or mental health of the woman or her existing children. This Act does not extend to the North of Ireland.

The proposed X Case legislation however, is much narrower. Were it to be enacted in its current form, it would allow for a lawful abortion to take place only where there is a real and substantial risk to the life of the pregnant woman according to either a GP and psychiatrist, or a GP and psychologist or two GPs in the absence of being able to secure the opinion of a psychologist or consultant (allowing for an emergency situation). This includes a risk of suicide. It does not allow for abortion in cases where there is a risk to her health in general, or her mental health, or where the continuance of a pregnancy involves a risk to her existing children, or where there are foetal abnormalities.

This legislation is drafted in order to solely give effect to the Supreme Court judgment in the X Case in 1992. On the basis of the X Case judgment, it does not include a time limit to prevent abortions from taking place, presumably because as to do so would be to automatically render the Bill unconstitutional i.e. the judgment held that a woman had a constitutional right to abortion in a case where there was a real and substantial risk to her life, including threat of suicide, and to introduce a time limit on this would be to undermine the Court’s decision in that – clearly a real and substantial risk may appear after any given time limit and to adhere to a time limit in that circumstance and deny her the procedure, would be to infringe upon the constitutional rights of that woman.

1967 Act

 (1)Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith—

[F1(a)that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or

(b)that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or

(c)that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or

(d)that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.]

(2)In determining whether the continuance of a pregnancy would involve such risk of injury to health as is mentioned in paragraph (a) [F2or (b)] of subsection (1) of this section, account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.

2012 Bill

4.―(1)  It shall be lawful for a medical practitioner to provide any form of medical treatment to a woman, despite its consequences for the life of the foetus, provided that―

 (a)  two medical practitioners have each formed an honestly held and reasonable belief that there is a real and substantial risk to the life of that woman, other than through suicide or another condition ordinarily diagnosed and or treated by a consultant psychiatrist or a clinical psychologist which can be averted only by the provision of that medical treatment, or

(b) there is a real and substantial risk to the life of the woman through suicide or another condition ordinarily diagnosed and or treated by a consultant psychiatrist or a clinical psychologist as determined by―

(i) one medical practitioner and one consultant psychiatrist, or

(ii) one medical practitioner and one clinical psychologist, or

(iii) , in the absence of an available consultant psychiatrist or a clinical psychologist and to prevent undue delay in the examination and or treatment of the woman, two medical practitioners,

who have formed an honestly held and reasonable belief that there is a real and substantial risk to the life of that woman which can be averted only by the provision of that medical treatment.

  1. 2.    Notification of medical terminations

Section 2 of the 1967 Act requires the Minister for Health in respect of England and Wales, and the Secretary of State in Scotland to introduce Statutory Instruments in order to, stipulate the medical practitioners who may carry out medical terminations; requires that the number of terminations be recorded; prohibits the disclosure of these recordings where they are not pursuant to the regulations; set out an offence where a person wilfully contravenes the regulations.

There is no equivalent provision in the 2012 Bill. However there is a provision that stipulates the medical practitioners who may certify whether there is a real and substantial risk to the life of a pregnant woman, including whether she is suicidal. It is presumable that statistics and data regarding the number of lawful terminations carried out, were the Bill passed, would be required either by the introduction of a Statutory Instrument, or HSE Guidelines.

  1. 3.    Conscientious objection to performing medical treatment

There are conscientious objections clauses in both pieces of legislation although they are framed somewhat differently. The 1967 Act stipulates that no person is under a duty to participate in the provision of this medical treatment where they have a conscientious objection. If this is to be tested in the courts, the burden of proof rests on the person attempting to claim it, except in the case of Scotland, where having sworn an oath to this effect will discharge the burden of proof in law. The conscientious objection does not apply where there is an immediate risk to life of the woman.

The 2012 Bill also provides a conscientious objection to participating in providing this medical treatment; however it stipulates that it must be an “honestly held and reasonable objection” to the provision of such treatment. This would initially appear to hold a slightly higher legal threshold of proving the validity of a conscientious objection, in that it must be both honestly held and reasonable in order to avail of it. However, there is no requirement on the burden of proof to be placed on the person attempting to claim it, so presumably normal proceedings under Irish law would apply – as in, the burden of proof would rest with the State in any legal proceedings and it would fall to the State to prove that a person did not have an honestly held or reasonable belief in proceedings where the conscientious objection is in question.

The conscientious objection does not apply where there is an immediate risk to life of the woman. Further to this, the individual objecting to participating in treatment must provide information to a woman about her right to such the treatment, and transfer the care of the woman to another practitioner who will perform the treatment. This may appear more onerous than the formula in the 1967 Act, however it goes on to require every health institution to have the number of required personnel in order to provide the treatment.

Therefore, it would appear unlikely that this conscientious objection provision would ever be tested in the Courts at all unless a case arose where (1) a hospital did not have the required staff on duty to perform a termination and (2) an on-duty Doctor raised a conscientious objection to participating in medical treatment where a pregnant woman presented with an real and substantial risk to her life resulting in the need for an abortion and (3) this woman actually died as a result of not receiving the required treatment resulting in (4) criminal proceedings or medical negligence proceedings being issued against the Doctor as a result of the failure to provide the emergency treatment resulting in the woman’s death and (5) the Doctor raised the conscientious objection clause to participating in the treatment as a defence in those proceedings.

Given the absence of legislation for the provision of lawful abortion where it is legal under the Constitution, this Bill if enacted would probably provide more protection for a medical practitioner who did not wish to participate in provision of such treatment; i.e. There would now be a legislative framework on the basis abortion is lawful under the Constitution in a case where there is a real and substantial risk to the life of a woman, meaning that were a pregnant woman to possess a real and substantial risk to her life and treatment were withheld due to the ethical objection of a doctor (despite the risk), leading to her death, the medical practitioner would be liable for her death due to medical negligence as there is currently no compulsion on a hospital to provide staff who will provide this service that would render the situation where the potential test of a conscientious objection clause in the courts unlikely.

1967 Act

(1)Subject to subsection (2) of this section, no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection:

Provided that in any legal proceedings the burden of proof of conscientious objection shall rest on the person claiming to rely on it.

(2)Nothing in subsection (1) of this section shall affect any duty to participate in treatment which is necessary to save the life or to prevent grave permanent injury to the physical or mental health of a pregnant woman.

(3)In any proceedings before a court in Scotland, a statement on oath by any person to the effect that he has a conscientious objection to participating in any treatment authorised by this Act shall be sufficient evidence for the purpose of discharging the burden of proof imposed upon him by subsection (1) of this section.

2012 Bill

5.―(1) No individual directly involved in the provision of medical treatment provided for in this Act shall be under a duty or be placed under a duty, whether by contract or otherwise, to participate in the provision of such medical treatment if he or she has an honestly held and reasonable objection to so doing―

(a) provided that his or her refusal to participate in the provision of such medical treatment does not cause an immediate risk to the life of the woman, and

(b) provided that, in the case of a medical practitioner who has an honestly held and reasonable objection to participation in the provision of any medical treatment provided for under this Act, such a medical practitioner shall―

(i) provide all relevant information to the woman about her right to such medical treatment,

(ii) where another medical practitioner is competent and readily available to participate in the provision of such medical treatment, refer or transfer the woman to the care of that other practitioner, or

(iii) participate in any medical treatment provided for in this Act where such medical treatment is immediately necessary to save the life of the woman and where no other competent medical practitioner is available to perform such medical treatment.

(c) Notwithstanding the provisions of this subsection, it shall be the duty of every health institution to ensure that the necessary number and category of personnel, both medical and non-medical, are made available and are not obstructed in the provision to a woman of such medical treatment as is provided for in this Act.

      (2) No institution, organisation or third party shall refuse to provide medical treatment to a woman under the terms of this section.

Supplementary Provisions of the 1967 Act and the 2012 Bill

Sections 5 and 6 of the 1967 Act are technical provisions that state that any termination performed that do not fall within the criteria of Section 1 of the 1967 Act are deemed unlawful terminations according to the provisions set out in the Offences Against the Person Act 1861. Section 3 (1) of the 2012 Bill contains a similar provision and states that any termination that does not fill the clear criteria set out in the Bill is unlawful under the provisions of the Offences Against the Person Act 1861.

Section 3 (2) of the 2012 Bill has the effect of repealing section 6 of the Regulation of Information (Services Outside State for Termination of Pregnancies) Act 1995, which prohibits persons supplying information on abortion from having any “interest, direct or indirect” in any clinic offering abortion services outside the State. Given the differing abortion law in Britain, there is no equivalent in the British legislation.

Capacity to consent to treatment by a minor

Section 6 (3) of the Bill stipulates that provided a minor who satisfies the criteria set out in the Bill for undergoing a lawful termination, may receive this treatment without the validation of her parents or guardian.

The 1967 Act does not explicitly deal with minors and consent, however in Britain, 16 and 17 year olds can consent to medical treatment without it being overruled by their parents and minors under 16 can consent to treatment provided they have the intelligence to understand what they are doing. The medical law used to assess whether a person under 16 has the capacity to consent to treatment was set out by Lord Fraser and Lord Scarman in the House of Lords in the Gillick judgment, which indicated the circumstances under which a minor may undergo treatment.[1]

The test of whether a minor can consent to medical treatment or not is often referred to as the test of “Gillick competency.”  Lord Scarman stated;

“…it is not enough that she should understand the nature of the advice which is being given: she must also have a sufficient maturity to understand what is involved.” He stated further; “Parental right yields to the child’s right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision.”

The implication of this judgment is that where a minor has the capacity to consent, they may do so – a sensible enough approach to the area of consent to any medical treatment by a minor.

Abortion on demand? Certainly not.

All of that aside, it is unlikely it will even make it past the first Dáil vote and enter Committee Stage, let alone be passed in its entirety – given that that this is the Government is still awaiting feedback from the Expert Group on Abortion, combined with an unwillingness to legislate for X anyway, despite long-standing commitments to do so from Labour..

 However, the Medical Treatment (Termination of Pregnancy in Case of Risk to Life of Pregnant Woman) Bill 2012 will clearly not allow for abortion in the range of circumstances as set out by the 1967 Abortion Act, and it is either foolish or wilfully misleading for the likes of Eilis O’Hanlon to try and say it will.

[1] Gillick v West Norfolk & Wisbech Area Health Authority [1985] UKHL 7 (17 October 1985).


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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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Cynthia Nixon, choice and queerness

Posted on February 6, 2012 by Aoife

Aoife and Ariel on Cynthia Nixon, Choice and Queerness:

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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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