If you pay for it, you’ll soon be a criminal

Clause 15 of Lord Morrow’s anti-trafficking Act comes into force on I June 2015. This Clause, originally Clause 6 in the Bill, introduces the ‘Swedish’ model to N Ireland. This makes is illegal to ‘pay’ for sexual services; pay is defined as money, goods and services. The criminality is asymmetrical, the buyer is criminalised, the seller is not. The Act is available here.

A time-worn cliché perhaps, but prostitution, the legal term for harlotry or whoredom, is not called the ‘oldest profession’ for nothing. It’s mentioned in some of the earliest extant written records. Traditionally, we think of women being sellers of services and men being buyers, though other models do exist; I will concentrate on this.

In Corinth in ancient Greece, and elsewhere, prostitution was an obligatory temple or religious duty for many women. Harlotry has also been seen as a way to social advancement, to independence, and because of poverty. These three ‘drivers’ reflect the very secondary role that women played in society through much of western history. It could be that by keeping women in such a state of general subjugation, it was the patriarchy that encouraged women to find a way to escape their restrictions.

Human trafficking is a complex subject, and includes concepts including coercion, deceit, chattel slavery, debt bondage, blackmail, illegal entry to a country, remaining after a visa has expired, transport (either locally or trans-nationally), sexual exploitation, forced organ donation, and forced marriage. As an illegal activity, statistics about the numbers of trafficked persons are very uncertain, and at best are estimates. Trafficking is to be distinguished from ‘people smuggling’, where the participants are volunteers in an activity which is illegal. In some jurisdictions the elements of ‘coercion’ are absent from the definition; such ‘victims’ of trafficking may be willing volunteers.

Human trafficking involving coercion by whatever means is an absolute moral outrage because it removes an individual’s personal autonomy and agency (and all that entails) and is thus condemned absolutely by all right-thinking people. People who have been trafficked are involved, as I understand it, with work in domestic servitude, work in agriculture in the broadest sense, and in sex work. Nail bars are said to be a Vietnamese speciality. The impetus for nation states to legislate arises from the United Nation’s Palermo protocols. [I’m not a lawyer, and cannot therefore usefully comment on the provisions of the general principles of the Act, whether this ‘extra’ legislation is necessary or sufficient. But, for his work in bringing the problems of trafficking to public attention, Lord Morrow is to be thanked, though this must be tempered by two areas of the Act which are contentious.]

The impetus behind Lord Morrow’s Act seems to have come from a meeting between him and ‘Anna’, a woman from eastern Europe who described how she had been trafficked into and around Ireland, and made to have sex with men; and how she was chained to a radiator; I’m sure I saw a video, but I can’t find it. This is the closest file. There’s a shorter version here, courtesy of CARE, Christian Action Research and Education. It makes a grim story, one of many similar ones. Often such women have been rescued, and agreed to relate their histories. Not all of these stories have stood up to close scrutiny: see this 2007 article from the Washington Post.  How she was introduced to Lord Morrow isn’t clear, not are the steps he took to validate her story. Anna describes her abduction as being in 2011, when she was taken from a London street and flown via Luton to Ireland. At that time a photo ID was necessary for travel; where did this come from?

Nevertheless, a Bill was brought forward to further criminalise people traffickers, and to offer support to those who have left or escaped. Clause 6/15 introduced the Swedish model, criminalising the buyer of sexual services; the buyers of domestic service and agricultural services are not so criminalised. People trafficking was covered by pre-existing legislation, as was the purchase of sex from a trafficked woman. The Act also describes support services for those who wish to leave the ‘industry’.

During its progress through the Assembly, the Bill was discussed by the Justice Committee. Recordings of proceedings are available on Youtube; there are also written Hansard reports, and a final committee report. The committee interviewed several interested witnesses; for example ‘Uglymugs’, a support service for sex workers, here; Drs Ellison and Huschke of QUB, who later produced a report on prostitution in N Ireland, here; Laura Lee, a sex worker and activist, here; Lord Morrow and ‘CARE’, a Christian support organisation, here; and Ruhama, and Turn off the Red Light, here. The videos are all quite long; should you view them, you might wonder if the members of the committee were being entirely even-handed in their questioning of all of the witnesses; whether they began with open minds. (This is also described as ‘sextarianism’, here.)

Although the need for further evidence on the state of prostitution in N Ireland was denied during the Committee stage, the Dept of Justice commission a report through QUB, and published it here. It may be incomplete, but it is the best, and almost the only relevant factual evidence. Views on prostitution are often judgemental and surrounded by pejorative polemic, such as ‘selling your body’ or ‘using a woman’. Indeed, an unbiassed account of the ‘problem’—even whether there really is a problem—is very difficult. Whether ‘Belle de Jour’ represents a more accurate picture than ‘misery memoirs’ (such as this) produced by rescued survivors is difficult to ascertain. Indeed, the use of manipulated or entirely imaginary statistics is associated with ‘antis’; for example, it is often stated that the average of entry for women into prostitution is 13. This is derived from a study of underage (American) sex workers; the question asked was ‘when did you first have sexual intercourse’ and not ‘when were you first paid for sex’. Similarly, it has been reported that in America, some 40,000 escorts are trafficked to major sporting events; that is, the passengers in 100 jumbo jets. Or that trafficked women must have sex 100 times daily; there are 1440 minutes in 24 hours; is the claim mathematically possible? Several high profile media (anti) campaigners have been found to have fabricated their claims. Can it really be the case that most women are volunteers and independent; that many are single women with children; and that they are primarily motivated by money worries, and that their view of their work is finding it more congenial than working as a ‘wage-slave’ such as a toilet cleaner? In no field of human endeavour can there be more dissimulation than that regarding sex in general and sex work in particular. The conflation of trafficking and prostitution, and it’s ‘mainstream’ acceptance, is the successful result of efforts by the ‘antis’ over the past few years; this is similar to some of the tactics used in the recent referendum in the Republic, where the ’No’ campaign invoked images of paedophilia and surrogacy—related concepts certainly, but a parallel or even ‘knight’s move’ response to the actual question which voters were asked.

The contentious areas have been the Swedish model and the support offered.

Firstly, there is the application of ‘support’ for those who have been trafficked. There has been a marked tendency to regard such people as being not just trafficked, but also as victims. Some of these persons may have been smuggled into N Ireland, and as such the apparent support could include arrest and deportation to their country of origin, to which they may have no desire to return. Whether the financial provisions prove to be sufficient to support such trafficked persons is uncertain. Further, organisations such as Ruhama may be involved in relation to ‘sex work’. Ruhama, apparently, is an organisation run by the lineal descendants of those who ran the Magdalene Laundries. And it seems that almost all of Ruhama’s income is spent on ‘administration’ and the little that remains for ‘support’.

Secondly, and much more contentious, is the inclusion in the Act of a general criminalisation of ‘sex work’, which in legal parlance is called ‘prostitution’. Prostitution is not, at present, illegal in N Ireland, though what might be described as associated activities certainly are. Recent moves to include criminalise prostitution in Scotland and in England and Wales were not successful. Paying for sexual services from a trafficked person is already a ‘strict liability’ offence throughout the UK. (In criminal trials, two factors must normally be proven; the mens rea or ‘guilty mind and intent’ and the actus reaus or ‘guilty act’. If it is a ‘strict liability’ offence, the ‘guilty mind’ is irrelevant—meaning in this context, that a defendant cannot rely on a statement such as, ‘I didn’t know she was trafficked’.) This new Act includes the following paragraphs (and other associated ones) which are to be amendments to The Sexual Offences (Northern Ireland) Order 2008

A person (A) commits an offence if A obtains sexual services

from a person (B) in exchange for payment—

  • (a)  if the payment is made or promised by A; or
  • (b)  if the payment is made or promised by a third party and A knows
    or believes that the payment is made or promised by a third party.

… “payment” means any financial advantage to B, or any person other than B, including the discharge of an obligation to pay or the provision of goods or services (other than sexual services) gratuitously or at a discount.

The sexual services are:

  • (a)  B being physically in A’s presence(b)  B touching A or A touching B, and

  • (c)  the touching being sexual; or

  • (d)  B touching B in a sexual manner for the sexual gratification of A,
    B being physically in A’s presence.

This new criminalisation is asymmetric, for it is the buyer who is criminalised, but not the seller. The definitions of ‘sexual services’ and ‘payment’ in the Act are very broad and inclusive; they would certainly include what is commonly thought of as ‘prostitution’, but could well extend to any payment for services, to mistresses and others who might not think of themselves as ‘sellers’. George Bernard Shaw described marriage as ‘legalised prostitution’, and there’s certainly a (sexist) view that, for men, all sexual intercourse has to be paid for in one way or another.

The model of criminalisation introduced in the Act is a version of the ‘Nordic’ or ‘Swedish’ model. This originated in Sweden in 1999, either as a response to excessive and unwanted immigration, or as a result of the efforts of some feminists; or perhaps both. These feminists are said to be of the view that all heterosexual intercourse is violence towards women, and, therefore, women who sell such services are being raped; and if the women deny this, then they are suffering from ‘false consciousness’. The Swedish police claim that their legislation is successful, though, it is claimed,  they didn’t actually collect statistics before the introduction of this law. Swedish law also allows the police to monitor monitor phone calls; and the landlords of flats occupied by ‘sex workers’ are obliged to turf such people out on to the street, rendering them homeless, when the landlord become aware of what’s going on. And somehow, though I don’t understand how this works, even if a ‘sex worker’ owns a flat, she can be evicted from it. Such moves are not possible in N Ireland.

During their deliberations, the members of the Justice Committee tasked with fully discussing the proposed Act visited Sweden, and talked to the police there.  During these discussions, a comment to the effect that, ‘we don’t need evidence’ was made; it was also claimed that criminal organisations trafficked hundreds of women throughout Ireland on a weekly basis. Quite why these rapacious men, and an MLA, were able to find these trafficked women easily when neither the PSNI or the Guardá were able to was not explained. (Some years ago, in ‘Operation Pentameter 2’, all UK police forces searched for ‘traffickers’ who had brought women into prostitution. They found no new traffickers. Despite this, politicians claimed the operation had been a success. This article in the Guardian is worth reading in full.) Further, the combination of a belief- and rhetoric-heavy argument, which is evidence-light, and concerns things that could upset the social order and which are often taboo creates a moral panic. A recent article describes the intended effects of the Swedish model, and also discusses how ‘austerity’ in the UK may lead to new entrants; while you might find it a disturbing read, any informed, rational debate ought to involve both ’sides’. Laura Lee is to challenge this Act in the Courts, here.

The Swedish model isn’t the only contemporary one. New Zealand, early in this century, introduced decriminalisation associated with regulation. The committee seems not to have properly discussed this; they didn’t visit New Zealand. The US criminalises both the seller and the buyer of ‘sexual services’, and has done so for around a century, following pressure from ‘purity associations’. It doesn’t seem in any way to be effective.

The Swedish model is also considered to be an ‘end demand’ strategy, that is, by criminalising the purchaser the demand for services will decline, and ultimately disappear. This concept, an eradication of the ‘oldest profession’ flies completely in the face of human (and animal) biology and physiology, and of history. It goes entirely against the reality that sexual intercourse is normal, healthy, and essential in life, though there may be an asymmetry between the wants and needs of women and men. Sex is at the lowest of Maslow’s hierarchy of needs:

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Prostitution, for food, has certainly been observed in animal species. If the idea behind criminalisation implies that of life-long monogamy, this again isn’t consistent with animal observations. Even swans, that ultimate symbol of life-long mating aren’t what they seem. Genetic studies have shown, in some cases, that the offspring of a pair cannot be those of the male (the cob). In humans, estimates suggest that perhaps 10% of children born to a couple aren’t the offspring of the father. (The underlying theory is that the female seeks a mate who will provide for her during and after the pregnancy, and help with child care; but that the female also seeks the genes of the ‘alpha male’, someone who might not be the best log-term provider, but who has the ‘best’ genes.)

Objections to ‘sex work’ can be considered as moral, philosophical and practical ones. If you have a moral objection to ‘sex work’, as you are perfectly entitled to do, then, as with abortion and ‘gay marriage’, you should shun it; but that in no way gives you the prerogative to legislate for others. If you choose to ignore the lessons of history, and feel that women require the support of the law, people whose self-awareness is so feeble that they need and deserve support even if they say they don’t, then you are a tool of the patriarchy, someone whose views of the agency of women belongs in the realms of history. And if you ‘keep’ a mistress, or even as a single man you invite a single woman out for dinner, after which you both go back to hers where the inevitable happens; or a husband who promises his wife a new dishwasher, you could on a literal interpretation of this Act suddenly find yourselves criminals. Further, people who are disabled often have difficulty finding sexual partners, as might widowers and those in care homes. Such individuals can, at present ‘buy’ sex, but, unless they want to be criminals, not in future.

In what way does the Act make life for a ‘working girl’ safer? Is it reasonable to believe that a client will call the police, admit to his commission of a crime, just to report his suspicions of her being trafficked? Will the ‘end demand’ strategy succeed, against the forces of biology? If you look at the ‘wars’ against things that the public enjoy, such as alcohol and drugs, it’s clear that such prohibitions firstly don’t work, and secondly that the industry rapidly becomes criminalised. Is that really what our legislators want?

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