Review of Part 4 of the Criminal Law (Sexual Offences) Act 2017

Fri, Feb 16, 2024

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The Sexual Offences Act 2017 made paying for sexual services a criminal offence. Under this law it is not an offence to receive money in exchange for sexual services. However, it is against the law to advertise such services and to work in cooperation with other sex workers.

It was a law we were told would reduce the levels of sexual violence and exploitation of sex workers. By criminalising the purchase of sex, it was hoped that sex workers would feel free to provide information to Gardaí, where they have been subjected to violence by clients, without fear of prosecution.

A review was built into the law, supposedly to happen three years after coming into force, to assess its actual effect on sex workers. While the original goal of this legislative change may have been to protect sex workers it is likely it has had the opposite effect and without completion of this review legislators cannot take further action.

The findings of a review into similar legislation passed in Northern Ireland in 2015 on criminalising the purchase, but not the selling, of sex found that the legislation has had little effect on the supply of or demand for sexual services. This analysis indicates there has been a 5% increase in the number of sex work advertisements since the law was changed.

However, between 2015 and 2018 there has been an increase in the number of reports of violent assaults, sexual assaults and threatening behavior. Sex workers are exposed to higher rates of anti-social and nuisance behavior. Sex workers reported higher levels of anxiety and unease, and increased stigmatization.

The other side to that story is that a majority of clients in Northern Ireland state that the law has made no difference to how often they purchase sex and they will continue to purchase sex with the same frequency.

We desperately need the review on this legislation to be completed and published as a matter of urgency. In some ways it doesn’t matter what side of this debate you fall on - if you believe the law should be more severe or if you would propose, like me, the full decriminalisation of sex work. It must concern us all that legislation passed by the Oireachtas would make people more unsafe and more at risk in their daily lives.

We often see this debate conflated with sex and human trafficking. For the most part I am keen to resist this confusion but in this instance I think it might be useful to flag that the delay in publishing this review also contributes to confusion and a lack of legislative clarity on sex trafficking.

The Trafficking in Persons Report 2021, published by the US Department of State, ranks countries around the world based on their government’s efforts to combat trafficking as measured against minimum standards and compared to its efforts in the year prior. The government continued to have systemic deficiencies in victim identification, referral, and assistance, and lacked specialized accommodation and adequate services for victims.

Ireland’s continued failure to address this type of trafficking is a parallel discussion to the lack of attention and thought given to the review, the development of legislation and the consideration of the possible decriminalisation of sex work.

One group deserves to be safe, legal and have their human rights vindicated, the other needs our protection and our commitment to the elimination of trafficking globally. We are doing neither.

Irish policy and law on sex work has served to deepen already existing inequalities, compound stigma and contribute to unsafe working conditions which place sex workers at increased risk. I believe that it is only through decriminalisation that sex workers’ human rights and safety can become an institutional priority.

Right now we cannot even begin to have this debate. We have no information, evidence or data on which to base it. The review is four years overdue. Many sex workers will have suffered and been hurt in that time.

The Minister and her Department must commit to a date for completion and publication on the report into sex work legislation as a priority.

I sought to raise this with the Minister and received the following response:

Response from Minister for Justice

“It is generally recognised that prostitution is inherently exploitative of vulnerable persons, mainly women and girls, and that many people are forced into prostitution through trafficking, drug addiction, homelessness and poverty.

“A key purpose for the 2017 Sexual Offences Act was to provide additional protection to persons involved in prostitution, especially vulnerable persons and victims of human trafficking.

“It allows those engaged in prostitution to provide information to Gardaí, for instance if they were subjected to violence by clients, without fear of prosecution for selling sexual services.

“Part 4 of the Sexual Offences Act 2017 introduced two new offences - paying for sexual activity with a prostitute and paying for sexual activity with a trafficked person. It also removed those who offer their services as a prostitute from the existing offences of soliciting for the purpose of prostitution and increased the penalty provided for in section 11 of the Criminal Law (Sexual Offences) Act 1993 for brothel keeping.

“The increase in the maximum penalty for brothel keeping was in recognition of the fact that those involved in the running of brothels often exploit vulnerable people for commercial gain and have links to organised crime. There are concerns that decriminalising brothel-keeping could create a loophole open to abuse by criminal gangs and others who wish to profit from prostitution.

“The international experience is that legalising brothels does not protect vulnerable women.

“Section 27 of the 2017 Act provides for a review of Part 4 of the Act 3 years after its commencement.

“Given that the goal of the legislation is to protect vulnerable persons, the review will include consideration of whether further measures are needed to strengthen protection for persons who engage in sexual activity for payment.

“The Department of Justice commissioned an independent consultant to undertake the statutory review of Part 4 of the Act but, due to a number of reasons, it was not possible for the review to be completed within the desired timeframe.

“Expressions of interest for a new Study lead to complete the Part 4 review of the Criminal Law (Sexual Offences) Act, 2017 were sought by the Department with a closing date for receipt of 31st October.

“The Department is now considering the best options to conclude the review in a timely and thorough process and the Minister expects to be in a position to decide on the next steps in the near future so that the review can be completed without any further undue delay.”