New laws will ban payment for prostitution

While various activities associated with prostitution have long been illegal, the act of paying a person to engage in sexual activity had not been a crime in Ireland up until 27 March 2017.  In the past, prostitution was generally viewed as a legal problem only when it manifested itself in the public domain. Hence, the legal regulation of prostitution tended to focus on issues such as public solicitation, loitering for the purpose of prostitution, brothel-keeping, and the advertisement of prostitution. Up until relatively recently, what happened in the bedroom had generally been regarded as legally irrelevant (provided all participants were of age and consented).

Payment for sex
This has just changed with the passage of the Criminal Law (Sexual Offences) Act 2017. The Act has been passed by the Dáil and Seanad, and signed by the President. The provisions relating to prostitution have now been commenced with effect from 27 March 2017.  These new provisions make it an offence to pay, offer to pay or promise to pay to engage in sexual activity with a prostitute.  It is not an offence, however, for the prostitute to offer to engage in sexual activity or to receive money or remuneration for engaging in sexual activity.  Similar laws are already in place in Northern Ireland.  

The model on which this is based is called the 'Nordic model' or ‘Swedish model’ given that it was pioneered in Sweden.  The philosophy underpinning such laws is one that sees the client as exploiting the more vulnerable position of the prostitute, such that only the client is criminalised.  The aim is to eliminate or reduce prostitution by discouraging demand. The hope is that potential clients will be dissuaded from risking a criminal record, and that demand for prostitution will decline.

The key provision is the new s.7A of the Criminal Law (Sexual Offences) Act 1993. It makes it an offence for a person to pay another person for the purpose of engaging in sexual activity with a prostitute.  It is also an offence to give, offer or promise to pay or give a person money or other remuneration for this purpose.  The payment is unlawful whether given to a third party or to the prostitute himself or herself. 

Payment may be in money or money’s worth (“any other form of remuneration or consideration”). The payment may, for instance, take the form of a gift of monetary value or a promise to provide services of value for another person.  So for instance, if a person accepts sexual favours from a prostitute in exchange for work done, this may constitute an offence.  

It is not necessary that a payment be made. It is sufficient that a payment is offered or promised. It does not seem to be necessary, moreover, that the sexual activity in fact occurs. 

What is a prostitute?
For this purpose, the gender of the parties is irrelevant.  The person paying may be either male or female, and the prostitute may also be of either sex.  The term ‘prostitute’ is not defined in the Act but Hanly (Introduction to Irish Criminal Law (3rd ed., Gill and Macmillan 2016) defines the term as “any person who offers sexual services of any kind in return for payment, whether or not those services are actually performed.” (p.433).  British case law speaks of offering one's body for the purpose of "acts of lewdness" (R v de Munck [1918-1919] All ER 499).  Hanly also suggests that a person may be a prostitute (though not a 'common prostitute') even if they engage in prostitution on a one-off basis. (Ibid. p.432)

What is sexual activity?
‘Sexual activity’ is defined very broadly. It means, for this purpose, “any activity where a reasonable person would consider that— (a) whatever its circumstances or the purpose of any person in relation to it, the activity is because of its nature sexual, or (b) because of its nature the activity may be sexual and because of its circumstances or the purposes of any person in relation to it (or both) the activity is sexual.”  This could feasibly embrace a very wide range of activities, including conduct that does not necessarily involve sexual intercourse or other penetrative activity.  Indeed, it possibly is not necessary that the act involve any genital contact.  The parties may well remain fully clothed and still be found to have engaged in sexual activity.  A variety of fetishes would clearly come within the boundaries of this definition (if performed in the context of prostitution).  Lap-dancing may potentially fall foul of this definition if the lap dancer were a prostitute (such activity is arguably, of its nature, sexual).

It all turns on what a 'reasonable person' would consider an activity that is of its nature sexual.  Where exactly the boundary lies may be unclear.

The penalties for infringement are restricted to fines, and cases will generally proceed in the District Court only.  For a first offence, the penalty is a maximum fine of €500.  For a second or subsequent offence, the maximum penalty increases to a €1000 fine.  An offender will not be registered as a sex offender. Nonetheless, the deterrent is notable; the focus is very clearly shifted onto the client and away from the person offering the service.

Soliciting and other matters.
The Criminal Law (Sexual Offences) Act 1993, as passed, made it an offence for various people - both prostitutes and potential clients included - to solicit or importune in a public place or street for the purpose of prostitution.  Under the 1993 Act, as originally passed, it was an offence for a person in a public place or in a street to offer his or her services as a prostitute to another person. ('Street' is defined very broadly to include, for instance, laneways, bridges, squares, and doorways and gardens abutting onto the street).  The 1993 Act also made it an offence for a potential client in a public place or street to seek out another person's services as a prostitute. Likewise it is an offence to solicit or importune another person on behalf of a person for the purposes of prostitution. 

The 2017 Act has abolished the offence of soliciting by a prostitute.  If the client or an intermediary solicits for this purpose it is still an offence.  If, however, the person offering their services as a prostitute solicits or importunes on their own behalf, it is no longer an offence.  

The Act has also changed the law on "loitering in a street or public place in order to solicit or importune another person or other persons for the purpose of prostitution." Loitering for this purpose includes loitering in a motor vehicle. Formerly, a garda could direct a person who the garda believed was loitering with a view to offering his or her services as a prostitute to another person to leave that place. Failure to comply could result in a fine or term of imprisonment. Although clients and intermediaries can still be liable under these provisions, the law on loitering no longer applies to a person offering their own services as a prostitute.

Organisation of prostitution, living off the earnings of prostitution, and brothel-keeping are still offences, with some penalties for these activities being increased.

Should paying for sex be banned?
The legislation places the burden squarely on the buyer.  The previous legal model largely focussed on the actions of the supplier, the buyer being liable if he solicited in public but otherwise he was largely untouched by law. Although ostensibly leaving those who offer their own sexual services for money free of criminal liability, the aim of the legislation is clearly to stamp out prostitution by driving down demand. A bakery that is free to sell bread is unlikely to thrive in a market where buying bread is unlawful.  

As a matter of principle, one might argue that the value of human dignity requires that a matter of such human intimacy as sex, so integral to the experience of being human, should not be commodified. A profound expression of human connection is cheapened if it can simply be bought and sold. On a more practical level, many argue that prostitution is inherently exploitative, the power dynamic tipped in favour of the client.  The link between prostitution and human trafficking, in particular, is well established. 

It is possible that some people embark on a career in prostitution because they find the activity rewarding and fulfilling. It may also be possible to argue that the power dynamic is not entirely skewed in favour of the client (in the sense that the seller has something the buyer wants).  It is likely, however, that at least some (even many) prostitutes feel they have no other feasible option to make ends meet than to engage in prostitution. Factors such as drug addiction and debt, amongst others, often propel people into prostitution, factors compounded by a lack of other more socially acceptable opportunities. 

The ban on payment for sex may be seen as undermining the autonomy of individuals and the freedom to do with one's body what one wishes to do.  This autonomy argument has some merit in the context of a freely-made, option-rich decision to become a prostitute; yet, all too often the decision is shaped by coercive factors coupled with a lack of alternative opportunities.

Some see the ban as being underpinned by sex-negative sentiment, and argue that prostitution should be legalised and regulated in order to protect suppliers.  Others, however, such as Mia de Faoite, bear powerful witness to the damage caused by prostitution:
“In prostitution a woman ceases to be seen as a human being in the eyes of others and becomes a trapped mind that lives in a body that no longer belongs to her...I used [heroin] to block out what I had become but I witnessed the deterioration of other women over the years.”
De Faoite, in particular, attests to the violence and degradation she and others experienced in prostitution.

Will this work?
There has been a great deal of debate and controversy over the Nordic model and its effectiveness in combatting prostitution. Many commentators tout its success in reducing demand for prostitution. In Sweden, there is some evidence also of a lower incidence of street prostitution.  It is likely that such laws make countries less attractive for traffickers. Others counter that laws of this nature drive prostitution underground and it make it more perilous for those involved - and more difficult to address.  It is difficult to state with confidence whether such laws make prostitution safer for those still involved.

It certainly is fair to say that criminalising demand will only work if the root causes that drive people into prostitution are rigorously addressed. If demand for prostitution falls, what other options will be available to those involved in this field? Closing off a door may not be a particularly constructive solution for those engaged in prostitution if other opportunities and strategies are not made available.

The question also arises as to the extent to which the new provisions will be enforced and whether the resources are available - or will be devoted - to tackling this new offence.

Notably the Act inherently acknowledges that there is room for circumspection and caution. Section 27 of the 2017 Act requires the Minister for Justice and Equality, within 3 years after commencement of s.7A to commission a report on the operation of the new ban. The report will include information on enforcement of the ban and "an assessment of the impact of the operation of that section on the safety and well-being of persons who engage in sexual activity for payment."


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