Academics have strongly questioned the extent to which the criminalisation of prostitution will push the entire sector below ground. When this is done, to what length does it decrease the demand for the acquisition of sex and if so, does this make a country that decriminalises prostitution less attractive to sex traffickers? There have been disputes as to whether prostitution in Ireland should be decriminalised or criminalised over the past few decades. The leading arguments that consume this debate have for the most part, been in favour of partial criminalisation. This essay will critically analyse and discuss the enforceability of the Swedish Model into Irish law on sexual offences. It will also examine the criticisms of the model and the counter arguments.
IS IT SEX WORK OR EXPLOITATION?
The two fundamental positions on this debate are remarkably polarised. On the one hand, we have what is known as the “Sex Work” model which is favoured by radical feminists and on the other hand, its known as the “Sexual Exploitation” approach. When we look at the sex work approach, it is generally understood as cultural and consensual because it is paid and should be viewed as any other job but has been denied any legal recognition in Ireland. Sex work is seen as a form of sexual liberation that academics term as a form of agency. Particularly in this context, agency materialises as freely choosing, strongly empowering and resisting moralistic stereotypes. This approach favours the decriminalisation of prostitution through various forms of state legalisation and its main goal is to discard criminal sanctions so that prostitution becomes a legal livelihood. As a position that emerged in the 1980s, it acquired its fortitude from sexual liberalism that depicted prostitution and other forms of sex as forms of freedom. To a certain extent, it has rejected any suggestion that they might be abusive to women which is why, we have come to see countries such as Germany and the Netherlands adopt versions of this approach in their constitutions.
The complications brought about by the sex work narrative is that it has protracted the issue of trafficking women into prostitution by transforming it into a form of migration labour. As an approach, it comprehensively veils over the human rights issues involved in this sector and discreetly removes it from the public view and its scrutiny. The sex work model having joined up with the economic ideology of neo-liberalism has given rise to industries of prostitution and pornography. These have come to be seen as market earners by governments and as a result, these trends of global sex industries have become legalised and tolerated hence transforming into hugely profitable entities for domestic markets such as those in the Netherlands and Germany. Therefore, women’s bodies are now launched into the market place as the basis of large profits for many enterprises.
Conversely, the “Sexual Exploitation” approach views prostitution as the oldest form of oppression. It is as pervasive as the institutionalised sex inequality of which it is understood as the cornerstone. Women’s experience of the world is said to begin from the body which is the exclusive territory that most women have but is oftentimes not under their control, especially in this context. Prostitution or other forms of sexual harassment do create a tremendous shift in women’s bodies making them become devices that men use at will through a form of payment. This in turn forces women to have to dissociate and detach themselves from their own bodies for survival.
This approach identifies prostitution as violence against women and provides us with the evidence to the physical and psychological harms that prostituted women experience. Those involved in prostitution are seen to be prostituted through choices precluded, options restricted and possibilities denied. It is a product of lack of choice pushed by poverty. The duress behind prostitution whether physical or otherwise only produces an economic precinct of sexual abuse whose profits go to others and not those that are doing the work for it. According to this approach, the harm experienced by these individuals come from both paid and unpaid activities of prostitutes. We have seen that they are forced to dissociate mind and body and in this transaction, the money coerces the sex rather than the person agreeing or consenting to it. World renown economists such as Milton Friedman argued that prostitution should be decriminalised and become subject to rules of the market. This has caused much criticism of the masculine construction of sexuality and how the international economies make profits through the exploitation of these elements of the patriarchal capitalistic system.
In consonance with the “Sexual Exploitation” approach, the Convention on the Elimination of All forms of Discrimination Against Women (UN 1979) requires countries to eliminate the harmful attitudes that create these practices of violation that also endanger human health. Insofar, the “Swedish Model” has been viewed by most of the world as a step into the right direction when it comes to eradicating the purchase of sex.
THE SWEDISH MODEL AND IRELAND
Ireland’s adoption of the Swedish model also known as the Nordic Model, has been viewed as a step into the right direction when it comes to the amendment of the Criminal Law (Sexual Offences) Act 1993. As a model, it came into force in 1999 as the Swedish government saw it as a way to combat trafficking as well as reduce the number of women involved in prostitution. The main fundamental aspect of this model is to criminalise those that pay for sex and protect those that sell it. Those involved in this trade are seen as the victims of male violence hence they have a right to assistance in order to escape prostitution. Since its implementation, the number of women in prostitution has decreased by 30-50% as those on the street are less than 500 compared to the 2,500 women being bought more than once a year by the estimated male buyers of 125,000.
It should also be noted that, not all countries are on the same wavelength and do not possess the same enthusiasm that the idea of prostitution shouldn’t be commercialised and legalised. This kind of thinking has reinforced the argument made by scholars that, prostitution cannot fully be eradicated unless the international community takes a vigorous stand and puts in place concrete measures against sexual exploitation. Which is why, when implementing this legislation, the Swedish government made it extra-territorial. This simply means that any Swedish citizen can be charged and convicted under Swedish law when they commit a crime in another country only if that country possesses the same legislative rules as those of Sweden. As a society, the Swedish concluded that, any society that alleges to defend doctrines of legal, political, economic and social equality for women must dismiss the belief that, women are not assets that can easily be bought, sold and most importantly exploited.
Ireland as a country took a stance on this matter and decided to implement the Swedish Model as a way of combating the purchase of sex. This viewpoint is considered as an imperative part of the attempts to create a contemporary and democratic society where gender equality is the benchmark. Its seen as an endeavour to recognise the right to equal participation of men and women. Since 2011, this topic received considerable public attention. Having heard evidence that was gathered from hearings and submissions taken by the Joint Oireachtas Committee Review, the Irish government made its decision. Their decision as we have come to see did lean towards the abolitionist perspective as this favoured the expansion of the Swedish Model. A composition of different organisations came together and were united under the auspices of the “Turn off the Red Light” as they pushed the government to adopt the Swedish model for prostitution that will criminalise the purchase of sex in Ireland. Progress was made and in 2013, an official report was released that recommended there be legislative changes made in the area of prostitution by moving to the Swedish Model. By September 2015, the Minister for Justice and Equality published the Criminal Law (Sexual Offences) Bill 2015. The Bill introduced two stronger sanctions that would criminalise paying for sexual activity with a prostitute. One is an of offence of paying to engage in sexual activity with a prostitute and the second is the more serious offence of paying to engage in such sexual activity with a person who has been trafficked. These two sanctions are in line with the Swedish Model as the legislation only targets buyers of persons in prostitution. Before it was signed into law by the president in February 2017, Minister Fitzgerald stated that this amendment of the law “will provide a more effective response to sexual offending within our criminal justice system…send a clear message that the purchasing of sexual services contributes to criminal exploitation”.
Even though the Swedish Model has been praised for its uniqueness as it recognises that sex workers are not criminals who need to be punished but be protected. However, as a legal model it has been found to create tremendous harm which is why there has been growing criticism and backlash towards it. International organisations such as Global Alliance Against Traffic in Women have opposed the Swedish Model because, as a model it has made conditions worse for sex workers in several ways. Whether the sex workers are working through choice, circumstance or coercion, studies have been carried out and they show that as a model, it reduces street-based sex workers and indoor sex workers’ powers of negotiation when interacting with potential clients. This has forced the creation of an environment of secrecy as the criminalisation of clients limits sex workers’ strategy to negotiate and screen the terms of transaction. This has then left them vulnerable to violence and the contraction of HIV or other sexually transmitted diseases. A recent research carried out among the sex workers in Sheffield interviewed these women who stated that when a “car pulls up, you haven’t got time to check it out as well as you like, it’s just in and off”. It has also been found that the criminalisation of the buyers does not actually deter the men that may want to commit acts of violence upon these sex workers. It is doing the opposite by merely deterring the men that are law abiding and have something to lose by being imprisoned. This also means that these women now get fewer clients which results in them being forced to work longer hours and accept clients that they may have previously rejected due to safety concerns.
Krusi et al conducted a study based on the experiences of the street workers in Vancouver. They came up with the same conclusion as stated above “client criminalisation directly undermines sex workers’ ability to screen potential clients”. These practices have been well documented as extremely critical to sex workers’ ability in relation to being able to control their health and safety which also includes protection from violence. A recent study done by the Norwegian government with regards to the Swedish Model also found that there has been heightened violence after the change of the law in Sweden. The report made in 2014 stated that these women now possess a much weaker bargaining position and their safety concerns have also increased compared to before the law was amended. This risk had been heightened for the indoor sex workers in circumstances where they make home visits as they are uninformed on what might happen in the presence of the stranger.