Prostitution law may cause harm to women


OPINION:THE NEWS that the Minister for Justice is taking advice from the Attorney General on the criminalisation of the purchasing of sex is welcome. This is not to say, however, that such a policy constitutes the best or wisest response. Rather it is to suggest that perhaps it is time to have a full, open and mature public debate about the challenging issue of prostitution and what kind of public policy we want towards it in Ireland.

This means that we must be willing to consider aspects of the debate that many find intolerable. Debating the “intolerable” is necessary for democracy. But, perhaps more importantly, our public policies and laws need to be informed by the reality on the ground and by consideration of the hidden or unintended consequences of any decision.

As a researcher, feminist and academic I have long been concerned about the way in which the debate about the relationship between the sex industry and sex trafficking has developed, culminating now in Ireland in the proposal to adopt the Swedish approach: criminalising the purchasing of sex. It is argued that this approach cuts the demand for commercial sex and, consequently, the sex-trafficking of women into the state.

I do not believe that prostitution constitutes a career or a good way of making a living. Nor do I believe that criminalising is the answer. Not least of all it is a crude mechanism which might, indeed, reduce sex-trafficking. But it may have the effect of rendering women in prostitution, those this proposal seeks to protect, even more vulnerable to harm. This is what we need to debate.

It is important to remember here that not all women in prostitution are trafficked. Not all women in prostitution consider themselves victims in need of rescue. Nor do they all believe that selling sex means that an act of violence is committed upon them. Moreover, not everyone in prostitution is female and not all clients are male.

Finally, despite the easy media image, not all women who migrate for economic reasons and end up in the sex trade have been duped, lied to or forced. Many are. Many, and I have met some, see undocumented entry into European states to engage in sex work as a way out of severely constrained circumstances. I have heard a very compelling case made by some of these women for recognition of their rights as migrant workers.

Anyone researching both prostitution and sex-trafficking will know that it is clear that for every neat victim/perpetrator dichotomy there are many complex layers of relationships, decisions, contexts and, yes, choices. The law, unfortunately, doesn’t work well with uncertainty. Using law in an exemplary fashion or to engineer social attitudes or practices is consequently fraught.

But more to the point, there is a considerable body of evidence, informed by scholarly work, that tackling prostitution through legal mechanisms is very problematical.

Criminalising demand works initially in that it clears street-prostitutes from visible soliciting and shuts down premises. It works, too, when the state has deep and comprehensive surveillance and enforcement capacities. Such powers may challenge our notions of civil liberties and come at great cost, particularly when, as is the case in Ireland, most prostitution goes on beyond the reach of the state. It works when prostitutes themselves are willing to turn witness to the act in court. The record so far on this from Sweden has not been great.

But these operational aspects aside, there is a more fundamental question. That relates to the increased vulnerability of women who, usually for economic reasons, take to prostitution. Research, from the UK and elsewhere, has shown that criminalisation serves to send these women into riskier, more dangerous situations where they are less likely to look for assistance and to co-operate with the police and more likely to seek “protection” from pimps.

It is exactly because of this reality that women in prostitution frequently suggest that regulation – through managed zones for instance – is the best solution. Irish women in prostitution, when asked by researchers, also gave this preference.

Like all ethical or moral issues, this topic is complex. It does not help when sex trafficking and prostitution become conflated as one problem requiring one solution. It does not help when one view of prostitution (that it is by definition a form of violence against women) dominates debates to the degree that any opposing or nuanced views are not heard.

I write here therefore to suggest that we open up this debate.

The history of Irish state policy towards prostitution has been almost entirely one of contradictions and unintended consequences, the result of legal change not marked by public deliberation and little of which brought much improvement in the lives of those in prostitution.

If we are about to embark on another legislative process, which may have far reaching and harmful consequences for some women, then let’s have a full and open debate so that we can consider all consequences and all complexities without prejudice.

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