On Wednesday the 15th of February at the old League of Nations building in Geneva, the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) will be addressed by an Irish Government delegation which it is planned, at the time of writing, will be headed by Tanaiste Frances Fitzgerald, Minister for Justice and Equality.
Minister Fitzgerald hopes to be in a position to inform CEDAW that she has just secured the passage by the Irish Parliament of the Criminal Law (Sexual Offences) Bill 2015.
As the title of the Bill suggests, the Bill was initiated in the Oireachtas prior to the last General Election. In fact, it was initiated in the pre-election Seanad. The current Seanad is composed as to 80% of its membership of people who have never debated any part of this legislation. Moreover, the current Seanad is one in which the Government has the support of only one-third of its members.
Put shortly, four out of five members of the current Seanad have never been consulted about the contents of this Bill and have never had an opportunity, as they would with ordinary legislation, to consider the principles and policy behind the Bill and to consider its detailed provisions.
In these circumstances, her attempt to push the Bill through the newly formed Seanad in an afternoon, as the Minister hopes to do, is nothing short of scandalous. If the Minister wants to report “progress” at the CEDAW hearing in Geneva, there is nothing at all to stop her from saying that she has made significant progress in its passage through our parliament.
There is no excuse for truncating a proper consideration of this Bill by the newly elected Senators simply based on Minister Fitzgerald’s desire to have her trophy legislation on show in Geneva on Wednesday.
There is no reason, either, for the Seanad to abandon its constitutional role as scrutineer of important legislation so as to embellish the Minister’s presentation at CEDAW in the manner planned by her.
One of the most remarkable elements of the Bill is the proposal to decriminalise offering a person’s services as a prostitute to other people in a public place while at the same time making it a criminal offence for any person to pay a prostitute for sex wherever the sex takes place, whether in private or in public.
The Government’s Bill proposes to criminalise any person who “pays, gives, offers or promises to pay or give a person (including a prostitute) money or any other form of remuneration or consideration for the purposes of engaging in sexual activity with a prostitute”.
Many people do not know that it has never been an offence for a woman or a man to pay any other person to engage in sexual activity. The “oldest profession” has never been criminal in itself. Acting as a pimp, or “living off immoral earnings” of prostitution, has always been an offence. Running a brothel (i.e. a place where more than one prostitute offers sexual services) is likewise criminal. But the law, as things stand, does not criminalise a man or a woman for engaging in sexual activity for reward. If Part 4 of Minister Fitzgerald’s Bill is passed, prostitutes will no longer commit a criminal offence by offering their services in public to passers-by.
Under Minister Fitzgerald’s new regime, a prostitute will be able to loiter in public places offering sexual services without any fear of being prosecuted by a policeman for such activity. But if some poor divil, likely with drink, agrees to have sex with a prostitute for money or money’s worth, he or she will be liable to be publicly prosecuted in the criminal courts, socially disgraced, quite likely dismissed from employment, and conferred with a lifelong criminal record.
The new Bill will, therefore, mean that prostitutes may only be moved on by members of an Garda Síochána in streets or public places, and if they comply with such a direction, will commit no offence. But anyone, man or woman, who pays anybody else any money for what is termed “sexual activity” in any circumstance no matter how private, will commit a criminal offence.
We are entering a crazy new parallel universe in which prostitutes can solicit or importune other people in streets or public places without criminal liability but their customers, no matter where the sexual activity takes place, will be liable to be hauled as criminals before the courts.
By the way, the Bill says “sexual activity” means any activity which a reasonable person would consider of its nature to be sexual, having regard to the activity itself or the circumstances in which it occurs.
If decriminalisation of importuning people by prostitutes is a good idea, and many might think it is, the question arises as to why Minister Fitzgerald does not simply propose a simple repeal of the importuning offence.
But the new Bill is a blackmailer’s charter. A prostitute’s customer suddenly becomes a criminal while the prostitute is free to roam the streets and public houses importuning passers-by to be his or her customers.
It is not generally known that in the United Kingdom at any rate even third level students engage from time to time in prostitution with a view to supplementing their student income. The classical prostitute loitering under a lamppost, like Lily Marlene, is by no means typical of the modern model of sex worker. Men and women offer to engage privately in sex, sometimes as “escorts”, sometimes as “rent boys”, without any public dimension to their activities.
Sadly, the draftsmen of Minister Fitzgerald’s poorly thought-out legislation have made a classical “bloomer”. The new offence of paying for sex, a summary offence proposed by Minister Fitzgerald, ignores a centuries old provision of our criminal law to be found in Section 22 of the Petty Sessions (Ireland) Act 1851, as extended by the Criminal Justice Administration Act, 1914.
This Act provides: “Every person who shall aid, abet, counsel or procure the commission of any offence which is or shall be punishable on summary conviction, shall be liable to be proceeded against and convicted for the same, either together with the principal offender, or before or after his conviction …”
This means in future that a prostitute who agrees to take money for sexual activity, wherever it takes place, “aids and abets” the commission of the offence by the prostitute’s customer, and is liable to be charged and convicted in the same manner as the customer will be.
Ironically, for the first time in centuries, women prostitutes will now be liable to be charged and convicted for taking money for sexual activity even where the activity takes place in private. Far from decriminalising the activities of male and female prostitutes, as the Bill pretends to do, it extends criminal liability for the first time to acts of prostitution committed in private by a prostitute, male or female.
The Bill has many other important provisions, including new provisions as to the meaning of consent in sexual crime.
Unfortunately, because of the need for Minister Fitzgerald to bring a trophy to her CEDAW meeting in Geneva, the Seanad is being asked to enact this legislation in an afternoon when 80% of its members have never considered or debated any of the provisions in the Bill.
This is shameful and should not happen.