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FactCheck: Would a new government bill really decriminalise sex workers?

FactCheck referees a dispute over a controversial new law.

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THE GOVERNMENT HAS been urged to move forward with its bill to reform the law on prostitution in Ireland.

At an event in Dublin on Wednesday, former sex workers and activists from the Turn Off the Red Light campaign, and an organisation called Space International, called for the immediate passing of the 2015 Sexual Offences Bill.

The Irish Times reported that Denise Charlton of the Turn Off the Red Light Campaign, claimed the legislation would protect sex workers by decriminalising them.

Does the bill really do that?

A group called Ugly Mugs, which facilitates information-sharing between sex workers, argues that the claim is false, and brought it to our attention on Twitter.

(Remember, if you see a factual claim you think is dodgy, email factcheck@thejournal.ie or tweet @TJ_FactCheck).

Claim: The new Sexual Offences Bill would decriminalise sex workers
Verdict: Mostly FALSE

  • The new bill would decriminalise public solicitation by sex workers, but…
  • It would retain the criminalisation of loitering by sex workers, and increase the penalties for it
  • It would retain the effective criminalisation of sex workers, under a provision on brothels, and increase the penalties for it.

What was said:

We reviewed an audio recording of most of Wednesdsay’s event in Dublin, and could not find an instance where Denise Charlton said what was attributed to her in the Irish Times article.

However, the statement could well have been made on the fringes of the event, or outside the audio recording available to FactCheck.

In any case, the Turn Off the Red Light coalition (TORL), which is largely led by the Immigrant Council of Ireland, has on several previous occasions claimed that the new bill would decriminalise sex workers and the sale of sex.

A press release accompanying Wednesday’s event stated:

The legislation will help to end prostitution and sex trafficking in Ireland by criminalising the purchase of sex and decriminalising the sale of sex. [Emphasis added].

On its website, TORL describes the legislation in this way:

As it stands, the bill includes laws to criminalise the purchase of sex, while explicitly decriminalising the sale of sex. [Emphasis added].

And elsewhere on its website, TORL provides a template which they suggest members of the public should use to lobby politicians in support of the bill. It states:

As my public representative I am asking you to support the criminalisation of the buyers of sex as outlined in the Sexual Offences Bill to end demand for these human rights abuses, while also decriminalising the sale of sex to ensure that no one exploited or forced into the trade faces prosecution. [Emphasis added].

THE FACTS

Prostitution laws report Source: Yui Mok/PA Images

This is what the new bill envisions for the criminality of sex work in Ireland, which is currently largely governed by the 1993 Criminal Law (Sexual Offences) Act.

Public solicitation

Paragraph (a) of Section 1.2 of the 1993 Act is removed. This means a person who “offers his or her services as a prostitute to another person” is no longer treated as a person who “solicits or importunes for the purposes of prostitution”.

In essence, this removes sex workers from a list including buyers and “pimps”, to which other criminal sanctions apply.

For example, Section 7 of the 1993 Act, which would be kept under the new bill, says:

A person who in a street or public place solicits or importunes another person or other persons for the purposes of prostitution shall be guilty of an offence…

Since a person who “offers his or her services as a prostitute” would no longer be treated as someone who “solicits or importunes for the purposes of prostitution”, this means public solicitation by sex workers would no longer be a criminal offence.

This is an example of how the new bill would decriminalise sex workers.

Under the new bill, it would remain a criminal offence for a buyer or pimp to ‘solicit or importune’ for prostitution “in a street or public place”.

The punishment for that would remain a fine of up to €500 or a one-month jail sentence.

Loitering

Similarly, Section 8 of the 1993 Act authorises a garda to order someone to move on if it is believed they are loitering in public for the purposes of ‘soliciting or importuning’ for prostitution, and makes it a criminal offence to disobey that order.

But since sex workers themselves would no longer be treated as ‘soliciting or importuning’ for prostitution, this would suggest that the de facto ban on loitering would no longer apply to them.

However, and somewhat confusingly, the new bill would also add a criminal offence of loitering for the purposes of selling sex, in legislation where there was not an offence before.

Section 8 of the 1994 Criminal Justice (Public Order) Act authorises a garda to order someone to move on if they are regarded as loitering in public, in certain circumstances, and makes it a criminal offence to disobey that order.

The new bill would add a further scenario, namely where a garda suspects that a person:

(c) is acting in a manner which consists of loitering in a public place for the purpose of offering his or her services as a prostitute.

So while the new bill would mean it is no longer an arrestable offence for sex workers to solicit their services in public, it would, in effect, continue the effective ban on sex workers loitering on public streets.

And while sex workers would no longer be liable, under Section 8 of the 1993 Act, to a €500 fine and/or one-month jail term for loitering, they would now be liable, under Section 8 of the 1994 Act, to a €500 fine and/or six-month jail term for loitering.

Therefore the net result of the new bill, in this respect, is continuing criminalisation of sex workers, with increased punishments.

For context, Justice Minister Frances Fitzgerald has argued that the effective continued criminalisation of loitering by sex workers is necessary due to concerns that, without such a ban, “Gardaí would be left with no means of combating any public nuisance if sexual services were to be offered, for example, in a residential area”.

Brothel-keeping

Modern Slavery Act Source: Dominic Lipinski/PA Images

The new bill would retain the ban on brothel-keeping. It’s worth presenting it in full, from Section 11 of the 1993 Act:

A person who -
(a) keeps or manages or acts or assists in the management of a brothel,
(b) being the tenant, lessee, occupier or person in charge of a premises, knowingly permits such premises or any part thereof to be used as a brothel or for the purposes of habitual prostitution, or
(c) being the lessor or landlord of any premises or the agent of such lessor or landlord, lets such premises or any part thereof with the knowledge that such premises or some part thereof are or is to be used as a brothel, or is wilfully a party to the continued use of such premises or any part thereof as a brothel,
shall be guilty of an offence…

Neither the 1993 Act, nor the new bill, defines what a “brothel” is.

As a result of this ambiguity, sex workers working together (in groups of two or more) for safety reasons, as well as the owners and operators of the kinds of premises typically understood to be brothels (commercial, non-residential premises), are arrested and prosecuted under this provision of Irish law.

In response to a parliamentary question in July, Justice Minister Frances Fitzgerald acknowledged that this section of the 1993 Act “can prevent persons offering sexual services from working together with others”.

And in response to a parliamentary question in December 2014, she described provisions in the new bill as specifically targeting the buyers of sex, “unlike the existing offences relating to prostitution such as soliciting, loitering or brothel keeping”.

This further underscores the reality that the current law on brothels has the effect of criminalising sex workers as well as those who “run” sex work in Ireland, but are not themselves sex workers.

The new bill would increase the penalties associated with this law from: a €1,000 fine and/or six-month jail term on summary conviction to; a €5,000 fine and/or one-year jail term on summary conviction.

Therefore, the new bill would maintain the effective criminalisation of sex workers in this respect, with an increase in the penalties they are liable to.

For context, Frances Fitzgerald has argued that this provision was kept in the new bill because:

…I am particularly concerned that any decriminalisation of brothel-keeping would create a legal loophole ripe for exploitation by the organised crime gangs involved in the trafficking and exploitation of women in prostitution.
Women would come under pressure to claim they were working independently when that is not the case and the Gardaí would be limited in the actions they could take to close brothels and disrupt the activities of criminal gangs.

It should be noted that the assertion that, without the provision on brothels, sex workers would be pressured into falsely declaring they are not under the control of a pimp, has been contested, including by Wendy Lyon, a solicitor who has acted on behalf of sex workers in Ireland.

She told FactCheck that sex workers are less likely to be reveal exploitation, when they are themselves liable to criminal prosecution. A further examination of the evidence around this specific issue goes beyond the scope of this FactCheck.

Turn off The Red Light Campaign 3 Denise Charlton (C) of the Turn Off the Red Light Campaign, with former sex workers and activists (L-R) Bridget Perrier, Fiona Broadfoot, Ne'cole Daniels and Rachel Moran. Source: Robbie Reynolds

Other provisions in the new bill, which don’t relate specifically to sex workers, but might be of interest:

  • Creates a specific criminal offence for paying for sex, by inserting a Section 7A into the 1993 Act. Punishment, on summary conviction, is a €500 fine for the first offence, €1,000 fine for all further offences
  • Increases the punishment for “pimping” from: €1,000 fine and/or six months in jail on summary conviction (Section 9, 1993 Act) to; €5,000 fine and/or one year in jail on summary conviction
  • Increases the punishment for living off the proceeds of (someone else’s) prostitution from: €1,000 fine and/or six-month jail term on summary conviction (Section 10.1, 1993 Act) to; €5,000 fine and/or one year in jail on summary conviction.

The bill also contains sections on child sexual abuse and child pornography, but these are beyond the scope of this FactCheck.

In response to a our request for evidence, Turn Off the Red Light told FactCheck:

Within the new Sexual Offences Bill 2015, those selling sex are implicitly exempt from the new offence introduced by part 4 of the said Bill, pertaining to the purchase of sexual services. In simple words, in the prostitution transaction those who are on the buying side are criminalised but those who are on the selling side are not.

As this FactCheck has explained, this is largely untrue. “Those who are on the selling side” (i.e. sex workers themselves) are still liable to criminal conviction for loitering in public, and working with other sex workers indoors, under the provision on brothel-keeping.

TORL appeared to acknowledge the continued criminalisation of sex workers under the loitering provision, adding:

There is a provisional amendment to the Public Order Act [the 1994 Act], which leaves those outdoors open to a penalty. All of the members of TORL continue to advocate for full decriminalisation of women/people in on-street prostitution and are working with all the political parties and relevant agencies to achieve this.

Conclusion

  • It is true that the new bill would decriminalise public solicitation by sex workers.
  • However, the bill would also effectively maintain the criminalisation of loitering by sex workers, and effectively increase the penalties associated with it.
  • And the retention of the provision on brothel-keeping would maintain the de facto criminalisation of sex workers, and increase the penalties associated with it.

On balance, we find the claim, that the 2015 Sexual Offences Bill would decriminalise sex workers, Mostly FALSE.

The bill certainly criminalises buyers and pimps, but in two out of the three relevant areas of law, it also retains the criminalisation of sex workers, and increases the penalties to which they are liable.

To read the 2015 Criminal Law (Sexual Offences) Bill in full, click here.
To read the 1993 Criminal Law (Sexual Offences) Act in full, click here.
To read the 1994 Criminal Justice (Public Order) Act in full, click here.

Send your FactCheck requests to factcheck@thejournal.ie

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