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Regulation not Prohibition

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The interminable debate over proposals to criminalise purchasers of sex took another turn this week with the publication of the report by the Oireachtas Committee on Justice, Defence and Equality. Predictably it recommends the so-called “Swedish model” but it also includes draconian proposals to treat visitors to prostitution websites as sex offenders and ban the provision of premises for prostitution. Senator David Norris yesterday condemned the proposal to criminalise purchasers as “horribly sanctimonious”.

The provisions criminalising the grooming of children for sexual purposes are welcome. But the other provisions concerning only consenting adults are fatally flawed. Experience has shown that the Swedish model endangers women and drives the trade underground. It also contrasts sharply with the more liberal direction of many EU member states.

In 2009, the EU-funded Daphne II study found Sweden had the highest per capita incidence of rape in the EU, and that statistical reporting differences do not account for it.

In Sweden, 46 incidents of rape are reported per 100,000 residents.

This figure is double as many as in the UK which reports 23 cases, and four times that of the other Nordic countries, Germany and France. The figure is up to 20 times the figure for certain countries in southern and eastern Europe.

The study, which is financed by the Brussels-based EU fund Daphne II, compared how the respective judicial systems managed rape cases across eleven EU countries. Sweden is shown in an unfavourable light, according to the study.

The high figures in Sweden can not it seems be explained purely by an increased tendency to report rapes and other more minor sexual offences.

Rape simply appears to be a more common occurrence in Sweden than in the other EU countries studied, the researchers argue.

Over 5,000 rapes are reported in Sweden per annum while reports in other countries of a comparable size amounted to only a few hundred.

As with abortion, the Swedish model is an Irish solution to an Irish problem. The trade would be driven underground or abroad. After an initial drop after Norway adopted the Swedish model, reports indicated that within 18 months, it had returned to its previous levels. A November 2010 report in Sweden also found an explosion in prostitution in neighbouring Nordic countries after the new laws came in there in 1998. In Sweden itself there was evidence that while street prostitution had declined, online prostitution had increased.

Quite apart from the moral/religious element in this debate are the implications for the safety of the prostitutes themselves. By proposing to outlaw the provision of premises for the purposes of facilitating prostitution, and to criminalising the viewing of prostitution websites, the report risks driving prostitution back onto the streets, with all that implies for their safety.

By moving towards prohibition, Ireland sets itself at odds much of Europe, where liberalisation is the dominant approach.

- In the Netherlands, prostitution has been legal and regulated since 2000. The ban was lifted for two reasons: first, to improve the sector as a whole and the position of sex workers by introducing licences, and second, to tackle abuses by taking firmer action against businesses operating without licences. Article 273f of the penal code outlaws forced and child prostitution, profiting from it, and forcing prostitutes to surrender their earnings. Regulations on premises specify the minimum size of working areas and govern safety, fire precautions and hygiene. For instance, every working area must be equipped with a panic button, and hot and cold running water. Condoms must be provided.

- In Italy prostitution is legal, but organized prostitution (indoors in brothels or controlled by third parties) is prohibited. Brothels became illegal in 1958, but single sex workers working from apartments are ‘tolerated’. A 2010 court decision created a new precedent, that clients who did not pay the worker would be considered guilty of rape. This was considered a major breakthrough for sex workers’ rights. Of 558 workers attending a STD clinic in Bologna between 1995 and 1999, only 1.6% tested positive for HIV.

- Prostitution is legal in Germany. Prostitutes may work as regular employees with contract, though the vast majority work independently. Brothels are registered businesses that do not need a special brothel licence; if food and alcoholic drinks are offered, the standard restaurant licence is required. Every city has the right to zone off certain areas where prostitution is not allowed. In Bavaria, law mandates the use of condoms for sexual intercourse with prostitutes, including oral contact. Pimping, admitting prostitutes under the age of eighteen to a brothel, and influencing persons under the age of twenty-one to take up or continue work in prostitution, are illegal. It is also illegal to contract sex services from any person younger than 18. In 2006 Cologne took in 828,000 euros through taxing prostitution.

- Spain decriminalised prostitution in 1995, while pimping remains illegal. Owning an establishment where prostitution takes place is in itself legal, but the owner cannot derive financial gain from the prostitute or hire a person to sell sex because prostitution is not considered a job and thus has no legal recognition. The Catalan government licenses brothels as “clubs”, though in some areas street prostitution is fined.

The correct approach is a legalised, regulated and taxed sex industry. Regulations can reduce STDs by enforcing the use of condoms and the rights of sex-workers to adequate pay and conditions and to non-violence.No such recourse exists when the trade is driven underground as in this country.

It will be for the Government to decide whether to proceed with the report. The supporters of prohibition range from the Catholic Right to the Feminist Left. Biblical denuniciations of prostitutes as “fallen women” do not fit comfortably with feminist conceptions of gender equality and agency. Feminist arguments that the trade exploits women fail to account for male prostitution.

This debate has followed a depressing pattern familiar to observers of Irish politics – namely the forced consensus. The forced consensus has done this country great harm in the past. Forced consensus once silenced the victims of the Church in the industrial schools and the Magdalene Launderies (once managed among others by present Ruhama trustees the Sisters of Charity). Wexford TD Mick Wallace and Fianna Fáil Senator Mary White had the courage to question the prohibitionist consensus in the past but were browbeaten into silence by what the latter called “extreme leftwingers and those on the high moral ground”. If our democracy is to survive it is imperative that there be diversity of opinion on matters of conscience such as this.

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6 Responses to “Regulation not Prohibition”

  1. # Comment by Donal O'Brolchain Jun 28th, 2013 09:06

    Well done on providing a comparative analysis on how prostitution is dealt with elsewhere in Europe. As you rightly suggest, your comment on the forced consensus has wider applicability in our public life. We must design, discuss, develop and carefully implement checks and balances to permit minds to ignite from the clash of ideas.

  2. # Comment by Claudia Jun 28th, 2013 12:06

    Prostitution is now off-street, because with internet and mobile phones, sex workers don’t need to be out in public. It is the Magdalene sisters in Ruhama and the Immigrant Council of Ireland who are leading this, with support from various moralists. The Justice Committee excluded sex workers and have now recommended exactly what the Magdalene sisters want, which is sex workers back on the street, where they can be back at the mercy of the Church. The recommended changes in the law, in addition to criminalising the purchase of sex, are that landlords can be prosecuted for renting to a single sex worker (currently lone sex workers are legal, it is only “brothels” where multiple sex workers work fro that are illegal), sex worker phone numbers can be blocked on application of the gardai or a charity like Ruhama and sex work websites are to be treated the same as child porn websites. All this is designed for force sex workers back onto the streets. If it goes through sex work will become very dangerous in Ireland.

  3. # Comment by Jill Jun 29th, 2013 18:06

    Great analysis. If anything by decriminalising prostitution in can protect women from their pimps. I know this may not be true in all cases. However, considering if a woman is selling her body, she should gain the financial reward for this and feel protected by the law. It’s a no-brainer that the church will try to intervene. The red light district in the Amsterdam is a safe place, brings money into the country via tax and if something similar was set up here, it could be an added income for the state.

  4. # Comment by Wendy Lyon Jun 30th, 2013 10:06

    International best practice (recognised by many UN bodies and the WHO) is decriminalisation along the lines of New Zealand and New South Wales rather than Dutch-style regulation.

    While the Swedish law has been disastrous for the more vulnerable sex worker sectors, it’s highly unlikely that Sweden’s rape problem can be attributed to it. For one thing, that would suggest that Swedish men are less able to avail of sex workers’ services because of the law and there’s no reason to believe that’s the case. It would also suggest that men who are afraid of being arrested for buying sex are not afraid of being arrested for rape, which doesn’t really make much sense. I think it’s fair to use the Swedish rape statistics to show that the law has not brought about the gender equality revolution that its advocates claimed it would, but nothing more.

  5. # Comment by Johnp Jul 21st, 2013 00:07

    Why are we still paying any attention to the Catholic Church as arbiters of our sex lives? Recent events have shown that they have as much right to moderate our sex lives, as Adolf Hitler has to run a Jewish Welfare Organisation. Excuse what I know is a disgraceful analogy but when you hear the RC Church say that Ordination of women priests is equivalent to the sin of child sex abuse, it is clear the lunatics have taken over the asylum, and they have forfeited any right to right to pontificate or offer guidance on any matters pertaining to sexuality.

    When are the Irish public going to realise that this is sanctimonious hypocrisy based on a dogma that in turn is based on superstition.

  6. # Comment by Francostars Dec 5th, 2013 11:12

    Prohibition is the water of Mafia fish and it is better to avoid it where it is possible, as the paying sex among adult and consentient people. Moreover, it is better to legalize and tax prostitution all over EU to cope with the crisis and brake Austerity, as told by the European Justice Court of Luxembourg with the Sentence 20th November 2001, cause 268/99, following the actual articles 3 TEU and 119 TFEU of Lisbon Agreement.