Criminalising prostitution – the pros and cons

It might surprise some of you to hear that prostitution is not actually illegal in Ireland. It is not an offence to sell or purchase sex. It is however an offence to solicit sex in a public place. Many people in Ireland believe that prostitution needs to be made illegal, others disagree. Here, Ger Leddin explains.  

Minister for Justice Alan Shatter said on October 17, “I am concerned to ensure that public debate on this issue is open to the widest possible audience. I therefore intend to arrange a consultation process to help inform the future direction of legislation on prostitution.”

What is prompting the Minister to kick this thorny issue to the sidelines are the total variances of opinion in the minds of both the public and politicians alike on the issue of the proposal to criminalise the purchase of sexual services in Ireland.

This variance of opinions is typified by the sex industry’s promotion of the myth that prostitution is the inevitable result of natural male instincts. While the anti-sex industry lobby promotes the equally mythical view that every woman working in prostitution is a victim.

Most people would be surprised to learn that under the Criminal Law (Sexual Offences) Act, 1993 it is not an offence to sell sex nor is it an offence to purchase sex in Ireland today. The 1993 Act was drafted to protect society from the more intrusive aspects of prostitution from a public order perspective rather than any moral or health concerns.

What is an offence under the Act is to solicit in a street or public place for the purposes of prostitution. The offence can be committed by the client, the prostitute or a third party i.e., a pimp. The second objective of the law on prostitution is to protect prostitutes from exploitation.

Accordingly, under the 1993 Act, it is an offence to organise prostitution, coerce or compel a person to be a prostitute, knowingly live off the earnings of a prostitute, or keep or manage a brothel. This is an important point to keep in mind and worth repeating – it is an offence to coerce or compel a person to be a prostitute in the Republic of Ireland but not an offence to work as a prostitute nor is it an offence to pay a prostitute for sexual services.

Ruhama, the Dublin based non governmental organisation founded in 1989,is a joint initiative of the Good Shepherd Sisters and Our Lady of Charity Sisters. Their mission statement in part sets out to work to change public attitudes, practices and policies which allow the exploitation of women through trafficking and prostitution.

Their “Turn Off the Red Light” campaign is aimed at ending prostitution and sex trafficking in Ireland and is run by a new alliance of civil society organisations. They believe trafficking women and girls for the purposes of sexual exploitation is a modern, global form of slavery, and believe that the best way to combat this is to tackle the demand for prostitution by criminalising the purchase of sex.

But the question we need to ask ourselves is this –  by criminalising the buying of sex are we using a sledge hammer to crack open a nut? Alcohol misuse in Ireland causes untold suffering, is often the spark which ignites domestic violence, rape, child abuse and mental health problems. One only needs to visit any hospital emergency room on a Saturday night to see the strain alcohol abuse puts on the health system. Should we therefore criminalise the buying of alcohol? No, but what we do is regulate it, license its sale, and educate against its misuse.

By criminalising the buying of sex, the“Turn Off the Red Light” campaign seem to believe that the customers of prostitutes will suddenly realise that they are better off at home with their hot chocolate, and that this will satisfy the needs and desires that formally brought them to prostitutes, lap dance clubs and massage parlours in the first place. After their clients have had their Paulinian conversion, the highly educated and multi-skilled former prostitutes will simply take up one of the many career choices open to them, which require similar skill sets and move into less offensive professions, banking perhaps.

Every right thinking person agrees that the trafficking of people and keeping them in conditions of slavery in a strange land so that they are used as commodities by pimps in the sex trade is inhumane, totally wrong and that the full weight and power of both government and the judicial system should be brought to bare on the perpetrators of these crimes. But in a country whose government cannot afford to reimburse its police force for the money spent on security for last years two State visits, are we seriously expecting the gardaí to divert their manpower and resources on policing two consenting adults doing “The Business”?

The gardaí themselves will tell you off the record that money would be better spend by surgically striking the major pimps and organised crime gangs that operate across Europe and Northern Africa making large-scale profits from human trafficking, than by wasting resources on policing unenforceable laws.

According to the 2010 Annual Report of Trafficking in Human Beings in Ireland released by the Department of Justice and Equality, in that year, there were 40 total arrests made in relation to trafficking in human beings. Of these 19 (47.5%) arrests were made for alleged offences under the Criminal Law (Human Trafficking) Act, 2008, while 21 (52.5%) arrests were made for alleged offences under the Child Trafficking and Pornography Act, 1998. We cannot deny that these cases are only the ones that come to light but wasting police resources on catching the ordinary decent punter in an effort to name and shame will do nothing to ease the plight of these misfortunates who are trafficked into Ireland by international criminal gangs. Prostitution has always been with us and will remain with us so as a society we should grow up and learn to live with it.

The constitutionality of Ireland introducing a law criminalising the purchase of sex along the lines of that introduced in Sweden in 1999 is a very questionable prospect. Article 40.1 of the Constitution states all citizens shall, as human persons, be held equal before the law. The introduction of such a law would make it illegal for one party to engage in an activity which is legal for the other party. This in itself needs careful examination. The civil liberties which would be affected as the State played nanny to consenting adults would be Dickensian to say the least and hark back to 1993 when only then was same-sex, sexual activity decriminalised in this country.

A regulated sex industry in Ireland, properly controlled, with regular health check-ups and registration of sex workers should be encouraged. This situation would not as some believe lead to an increase in criminal activity but instead to a more open industry where women and or men who wish to work as prostitutes can do so freely and without sanction, protected by the law and not harassed by it. Our Minister for Justice would be better served adequately resourcing our police and immigration officers and allowing them to target the real criminals in Ireland’s sex industry, the pimps and traffickers of women and children, who amass fortunes from the victimisation of others and not wasting time and scarce resources on petty misdemeanours.

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