JUSTICE MINISTER ALAN Shatter has published his report into the Swedish legislation criminalising people who purchase sexual services.
The EU-funded Dignity research project – which examines services provided for victims of human trafficking and is led by the Dublin Employment Pact and the Immigrant Council of Ireland - has been lobbying the Minister to follow the lead of Sweden.
In July 2010, Sweden published the findings from the first formal evaluation of its 1999 ban on the purchase of sexual services.
In September last year, the Dignity Project arranged a visit to Sweden by a group which included representatives of what was then the Department of Justice and Law Reform and An Garda Síochána to meet officials and experts and to discuss the Swedish legislation and its operation.
Following the visit, a report was prepared by the Department for the then Minister, and after consideration by him it was submitted to the Attorney General’s Office.
Since then Minister Shatter has examined the report and the advice received from the Attorney General.
Minister Shatter stated he is determined to ensure that everything that can possibly be done to combat prostitution and human trafficking will be done.
However, it will be recognised that any proposal to criminalise the purchase of sex within our legal and constitutional framework raises complex issues and would have to be considered very carefully. Also, it is inevitable that there will be conflicting views about such a proposal and representations made to me in this matter reflect different and genuinely held views.
He said he has put the report into the public domain because of the level of media coverage and in order to help inform public debate.
Minister Shatter also said he intends to arrange a consultation process to help inform the future direction of legislation on prostitution.
The report can be read on the Department of Justice website.
The report
In the report, the Minister says that evaluating the effects of the ban on the purchase of sexual services proved to be a difficult task because of the use of the internet and the clandestine nature of prostitution and human trafficking.
In Sweden, it was found that street prostitution has been halved since the ban and the ban is also believed to act as a barrier to human traffickers considering establishing themselves in Sweden.
In 8 out of 10 prosecutions for both street and other forms of prostitution the purchaser admits the offence. For this reason, the Justice Ministry believes it is the knowledge of the ban that is important.
Irish law
The criminal law governing prostitution is aimed at protecting society from the more intrusive aspects of such activity from a public order perspective, while also seeking to protect prostitutes from exploitation.
It is not based on moral considerations.
The Criminal Law (Sexual Offences) Act 1993 makes it an offence to solicit in a street or public place for the purpose of prostitution. The offence can be committed by the prostitute, the client or a third party such as a pimp.
In addition, the Criminal Law (Human Trafficking) Act 2008 makes it an offence to knowingly solicit or importune a trafficked person, in any place, for the purpose of prostitution.
The Swedish approach is fundamentally different to the law in Ireland.
Constitutional questions
Minister Shatter noted that there are legal and constitutional questions, whether there would be sufficient public support for a ban on the purchase of sex, and whether such a ban would be enforceable.
Ultimately, the Attorney General would have to advise whether an offence of purchasing sex would be compatible with the Constitution and consistent with Ireland’s legal framework.
If such legislation negatively affected a defendant’s fundamental rights, including the rights to equality before the law and a fair trial, it could be viewed as unconstitutional.
The Minister notes that establishing an offence of purchasing sex would also give rise to a number of practical difficulties, such as how to define the words used in the Swedish law, like ‘casual’ or ‘purchase’.
The report also states:
There is no evidence of any widespread support for a change in the law along the lines proposed by the Dignity Project. Also, there are other genuinely held views. For example, sex worker alliances/representative groups would probably object to the label of being “exploited” and argue that selling sex should be a legitimate livelihood option.
The report states that a ban, if it were well enforced, could have beneficial deterrent effects.
However, it might also be argued that policing operations to target the purchase of sex …would divert law enforcement from operations targeting serious and organised crime, including human trafficking.
What next?
It is recommended that this report be submitted to the Attorney General for her views.
If he decides to examine it further, the Attorney General might be asked if the Law Reform Commission could be requested to examine the legal and constitutional implications of a ban on the purchase of sex.
Read: Minister for Justice examining advice on criminalising purchase of sex>
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