Regulation not Prohibition
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.