purchase of consensual adult sex cannot be reduced to simple soundbites 

‘Turn Off the Red Light’ campaign aims to criminalise the purchase of consensual sex but is flawed in its assumptions, writes Mick Wallace.

IF successful, the current campaign to criminalise the purchase of consensual sex will signify the re-involvement of the State in the private sexual lives of adult citizens for the first time since homosexuality was decriminalised 21 years ago.

The Justice Committee’s report clearly reflects and adopts the logic of the ‘Turn Off the Red Light’ campaign at the expense of the testimony and first-hand experience of individual sex workers and international experience (bar Sweden and Norway).

The Turn Off the Red Light logic has long been questioned and criticised by many organisations, many of whom recommend the decriminalisation model, including Human Rights Watch, the World Health Organisation, UN Women, UN Aids, Global Commission on HIV and the law, Amnesty and the International Labour Organisation.

In Ireland, the publication of the Migrant Rights Centre of Ireland (MRCI) proposals in relation to sex trafficking is awaited with interest. In contrast to the “rescue ethos” of the many religious-funded organisations under the Turn Off the Red Light banner, MRCI is organised along community development principles and has a strong track record in relation to all forms of trafficking and exploitation of migrants.

A 2010 report by UN special rapporteur on the right to health, Anand Graver sets out that “trafficking and enforced sexual slavery is abhorrent, and undoubtedly merits criminal prohibition. However, the conflation of consensual sex work and sex trafficking in such legislation leads to, at best, the implementation of inappropriate responses that fail to assist either of these groups in realizing their rights and, at worst, to violence and oppression.”

This confusion between prostitution and sex trafficking is a difficult starting point from which to develop a coherent policy framework or draft responsible legislation. Turn Off the Red Light logic applies an economic supply-demand theory used for price determination, to the elimination of prostitution, the purchase of consensual adult sex which Turn Off the Red Light openly aims to eradicate on unspecified grounds, which appear to relate to sexual morality.

Huge assumptions are then made that criminalising the purchase of sex will in fact result in any reduction in demand and thus lessen the incidence of prostitution, taking it as a given that this is a legitimate policy objective.

This shaky demand argument relating to prostitution is then stretched to apply to sex trafficking. This abhorrent crime is thankfully already illegal under the Criminal Law (Human Trafficking) Act 2008. The purchase of sex from a person who has been trafficked is also illegal under Section 5 of the Act.

The use of emotive images of children by the Turn Off the Red Light campaign is particularly misleading given that the proposed change will not make sex with a child any more illegal than it already is. A child does not have the mental capacity to ever consent to sex and any adult that has sex with a child would be charged with statutory rape, and not the purchase of consensual sex from a prostitute.

The law that this campaign proposes would have no effect on the fictional child characters used by Turn Off the Red Light to promote its campaign.

Their supporters appear to consider women in the same category as children in terms of their mental capacity to consent and dismiss the insistence of some sex workers that they freely enter this arrangement with the sweeping generalisation that “No woman would ever choose...”, an argument used last week by a Labour senator when interrupting Senator David Norris in the Seanad.

The apparent success of the Swedish model, often trotted out as justification for the above “demand” hypothesis has long been diminished and now even disproved by more recent studies. The 2011 report of the UN Aids Advisory Group strongly criticises the Swedish “demand” model as “ignoring the voices of sex workers.” The rejection of Turn Off the Red Light laws by Scotland, Denmark, Finland, and the French Senate goes unnoticed.

Recently, the Northern Ireland justice minister commissioned independent research by Queens University, which dismissed the Swedish model and found that both sex workers and the PSNI agree that criminalising the purchase of sex would only drive prostitution underground and endanger the lives and health of sex workers (including a significant male/transgender minority), would increase the involvement of organised crime, the social stigma of sex workers would increase, and it would divert police resources away from sex-trafficking investigations.

Only 7% of clients said they would be permanently deterred by the proposed criminalisation. Unfortunately neither our Justice Committee nor our minister saw fit to follow this approach of evidence-led policy development and no similar research has been commissioned in the Republic.

The PSNI expressed serious concerns as to the operation and enforcement of this legislation. These concerns are also relevant here as the covert surveillance methods used by Swedish police are unlikely to be available to an Garda Síochána. This leaves the gardai with the prospect of hiding in bushes and wardrobes as they did when tasked with the enforcement of the criminal offence of homosexuality.

The Turn Off the Red Light campaign reduces complex issues to a single soundbite-solution which, we are told, will “end trafficking”.

A more considered approach might include tackling the wider structural inequalities in Irish society to provide a real alternative to those wanting to leave prostitution.

The right to work could be provided to asylum seekers given that migrant women are identified as vulnerable. It is crucial that the validity of the voices of the many sex workers who insist they have freely chosen sex work be recognised. It would also be positive if consideration was given to the New Zealand model of decriminalisation.

Whether the subject is abortion or prostitution, symbolic legislation on either religious or sexual morality grounds is a folly that the State should not indulge in, particularly when the cost is the safety and health of the women involved. Any proposed legislation must respect a woman’s rights to bodily integrity and bodily autonomy.

A citizen’s right to a private life, including a private sexual life must also be protected, as recognised by Article 8 of the European Convention on Human Rights.

A challenge initiated by David Norris in 1988 succeeded on these Article 8 grounds when the European Court held that the mere existence of legislation criminalising homosexuality amounted to an unacceptable interference by the State into his private life. The current proposals to criminalise the purchase of consensual adult sex would appear to be vulnerable on similar grounds.

Mick Wallace is an Independent TD