“Bad Laws are the worst sort of tyranny” – Edmund Burke

Posted on July 2, 2013

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This post is by an Irish law student and ally of sex workers, who has asked to remain anonymous.

I don’t often write at length on such serious topics but the recommendations contained within the Joint Oireachtas Committee on Justice, Equality and Defence Report on Review of Legislation on Prostitution is too serious to remain silent upon and pose a grave risk to the well being of sex workers in Ireland, or in any other State which considers their adoption.

History

In Ireland, much like that of our nearest neighbours in the United Kingdom, the law on prostitution stems from the Contagious Diseases Acts 1864 to 1869, the Vagrancy Act 1824, and the Criminal Law (Amendment) Act 1885. The first actual legislation of wholly Irish origin after gaining independence in 1922 was the Criminal Law (Amendment) Act 1935 amongst a backdrop of religious and moral fervour in the new State, explored in far greater detail than my time allows, in Dr Ellis Ward’s excellent 2010 article Prostitution and the Irish Free State: From Prohibitionism to Globalised Sex Trade.

In King v Attorney General [1981] IR 233 the Irish Supreme Court struck down a provision of the Vagrancy Act 1824, as contrary to several Articles contained in the Constitution of Ireland, as it created an offence of “loitering with intent” which only a unconstitutional class of “suspected persons” or “reputed thieves” could commit, the prosecution simply had to prove the facts that one had a previous conviction and was in any public place. The striking down of this section ensured that a similar offence of “loitering for the purposes of prostitution” contained in the previous legislation on prostitution, and thus on street prostitution became effectively decriminalised and An Garda Siochana (Irish Police) had to rely on common law breach of the peace to target those soliciting.

This began to change after the recommendations of the Law Reform Commission Report on Vagrancy and Related Offences were published in 1985, which can be summarised in the statement that “prostitutes on the street would be highly offensive to the great majority of people and would lead to a marked deterioration in the quality of living in cities and towns” and later was most of the recommendations were implemented in the Criminal Law (Sexual Offences) Act 1993 which created new offences of soliciting or importuning in a street or public place, organising or directing the activities of a prostitute, living on the earnings of a prostitute and aiding or abetting that prostitution (the “aiding and abetting” in theory prevented uninvolved dependants from prosecution) and brothel keeping. The following year the Public Order Act was enacted which contained a provision which criminalised all advertising of the services of a prostitute as an afterthought to the raft of strict provisions regulating public conduct from protests to public drunkenness and sporting events.

This meant that the only legal form of sex work, and that which is now most prolific, was that which involved a lone sex worker operating indoors and advertising using websites based outside of the jurisdiction.

The Review

As part of an overall review on legislation on prostitution which was initiated on June 22nd 2012 (almost 20 years after the enactment of the 1993 Act), the current Minister for Justice, Equality and Defence Alan Shatter TD asked the Committee to undertake a public consultation and hold hearings on adiscussion document published by the Department of Justice, Equality and Defence. There were over 800 submissions from the public and there were four hearings held in an exclusionary manner which, in general, prevented a fair hearing from a wide spectrum of sex workers in Ireland.

It quickly became clear that the vast majority of the 15 member Committee favoured the exertions of the Turn off the Red Light (TORL) Alliance (which by now consisted of 68 organisations the stereotypical “great and the good” of Irish society, led by anti-prostitution organisation Ruhama and the Immigrant Council both with religious links to the Magdalene Laundries) and several major political parties had already committed to supporting their campaign prior to the conclusion of the Committee’s business on the topic. Despite this, several independent academics, an esteemed doctor specialising in STIs and a small “representative” umbrella group for sex workers, known as the Sex Workers Alliance of Ireland were allowed to give compelling, fact-based evidence which came down strongly against the later recommendations.

 

The Recommendations

On the 27th June 2013, over a year since the review of legislation had begun, the Committee issued its Report on Review of Legislation on Prostitutionwhich was greeted by tremendous shock and fear on the part of Irish sex workers and their allies. The Report, among other things, recommended almost the exact same as the written submission of anti-prostitution charity, Ruhama:

1. An offence penalising the purchase of sexual services of another person by means of prostitution, or any request, agreement or attempt to do so, in which no offence is committed by the person whose sexual services are sold.

2. An offence of recklessly permitting a premises to be used for the purposes of prostitution

3.  Powers for An Garda Siochana (Police) to have disabled, or transferred to them, any telephone number in use in the State that is suspected on reasonable grounds of being used for the purposes of prostitution.

4. To make provisions to enable that the accessing of websites (whether located in the State or abroad) that advertise prostitution in the State should be treated in the same way as accessing sites that advertise or distribute child pornography.

5. The Criminal Assets Bureau (responsible for the seizure of criminal assets) should be specifically tasked to focus on the finances of the prostitution industry.

As the reader can see from these points, the ultimate conclusion of the review has been the imposition of draconian measures upon clients, and also upon those who sell sexual services. The biggest effect is obviously a potentially serious loss of income for sex workers coupled with the devastating effects of the further recommendations which are clearly intended to give the primarily measure “teeth” against sex workers who continue to work.

The one positive is the decriminalisation of the person who sells sexual services, however prior to these recommendations indoor sex workers were already effectively decriminalised if they worked alone and after these recommendations street sex workers can still be arbitrarily prosecuted (and persecuted) by An Garda Siochana using the Public Order Act 1994 among numerous other provisions.

Until the legislation is finally drafted into a Bill by the government, it is difficult to definitively point to the effect of the remaining provisions however the possible effects are:

(1) Difficulties for sex workers to find and retain accommodation:

 

The potential effect of changing the definition of a brothel to “used for the purposes of prostitution” allows the measure to be targeted at previously non-criminalised sex workers who operate alone.

By altering the prohibition on brothel keeping (contained in the 1993 Act) to include recklessness, it is possible for landlords to be held criminally liable if he/she can foresee, is aware, or is made aware, that there is a substantial risk an element of an offence, namely permitting a premises to be used for the purposes of prostitution, but continues regardless.

This is perhaps the most far reaching and deplorable recommendation of the Committee, mirroring that of “Operation Homeless” (yes, it’s officially called that!) in Norway in which Police notify owners of apartments/offices/hotels where prostitution is found that they will be charged with pimping if the tenancy is not terminated”.

(2) The potential for sex workers to be unable to communicate

Powers which would allow the authorities to effectively seize ownership of a mobile phone number which is being used for the purposes of prostitution have an obvious negative impact on all sex workers, both for their business and more importantly for their safety. Sex workers have often said they rely on local and national Ugly Mugs schemes to receive text and email warnings of dangerous or suspicious individuals, and can use databases provided by these services to check incoming phone numbers against those used by those same individuals who have a history of contacting sex workers.

As an afterthought the Committee asked that An Garda Síochána should, as far as practicable, consult with men and women in prostitution on how their health and well-being can be protected in the context of a ban on the purchase of sexual services” yet this is the same body charged with removing one of the key means of safety from those same men and women, as well as requiring that their tenancies be ended by their landlord under threat of criminal prosecution. An Ugly Mugs scheme in Ireland is administered by E-Designers Ltd, the leading escort advertising provider who was denied invitation to the hearings despite expressly willing to engage, and receives little or no co-operation from anti-prostitution charities or police and government.

In the same way, the potential implementation of blocking of any website deemed to be advertising prostitution and/or classification for such sites to be an offence linked to child pornography is also of major concern, placing both sex workers and their clients who access such websites at risk of legal classification similar to that of paedophile sex offenders. It is especially deplorable given that Ugly Mugs access, and private escort forums, are linked to and provided through escort advertising websites and thus those sex workers accessing these resources could be criminalised.

 

Both the legal process and technical ability to implement this measure remain unclear.  

(3) The potential for freezing and investigation of sex worker’s assets

 

The Criminal Assets Bureau (CAB) is a multi-agency body consisting of personnel from the Revenue Commissioners, the Department of Social Protection and many other specialist officers with backgrounds in finance and the legal profession. Unpaid taxes, or fraudulent social welfare claims are part of the agencies remit and it maintains strong links with international asset recovery bodies such as the Asset Recovery Agency and Serious Organised Crime Agency (SOCA) in the UK.

 

It has the power to seize the assets of any suspected criminal using a civil process, with the associated lower burden of proof, to obtain orders from the High Court freezing a person’s assets, firstly for 21 days prior to a interlocutory hearing and then for up to seven years if the person cannot, on the balance of probabilities, convince the High Court the assets are not the proceeds of crime. If the person is not successful in having this order lifted after seven years, then CAB may apply for a disposal order transferring ownership of the property to the government exchequer.

As this will be an internal policy response rather than having specific legal basis and will involve multiple agencies, it is difficult to predict the consequences and likelihood of enforcement, though if I was a sex worker in receipt of social welfare I would be concerned given the Department of Social Protection is known for draconian, “ freeze payments first, ask questions later” approach.

Conclusion

In the last twelve months Ireland was presented with an opportunity to join those countries which are leading the way in reducing stigma, violence and exploitation of sex workers through positive law – New Zealand being an important focus model. One way it can do this is listening to a wide cross section of sex workers who say what effects them most is the result of societies attitudes towards them and above all, by its failure to respect them and their choices.

Our politicians have failed to grasp this golden opportunity for true reform and rather than show leadership and vision, have resorted to the tried, tested, dull and uninspired Irish solution of sweeping the reality of an issue under the carpet and pointing new draconian sanctions at it in case it challenges the delicate status quo .They are silencing and refusing to engage with those already vulnerable, increasing the danger and stigma they face This  has been done with the national questionhomosexualitycontraceptionabortion, and now, once again, sex work is to suffer renewed legal persecution in a further failed “see no evil, hear no evil, speak no evil, do no evil” strategy.

When will Ireland learn there are no bad women, only bad laws?

Further Reading