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Buying Consent

Ivana Bacik

Revolting Prostitutes: the fight for sex workers’ rights, by Juno Mac and Molly Smith, Verso, 144 pp, £14.99, ISBN: 978-1786633606

What is to be done about prostitution law? Feminist debates on this contentious topic have become so highly polarised that any fresh perspective is to be welcomed. This new addition to the extensive array of prostitution literature promises to bring an original approach, describing itself as a book “about prostitution written by prostitutes’’. However, any reader hoping for a genuinely new outlook may be disappointed. The book’s title alone makes clear the authors’ view of prostitution as constituting “sex work”. This term is generally used in feminist discourse by those who argue that entry into prostitution represents an exercise of individual agency, and that prostitution should be treated legally in the same way as other forms of work within the labour market. By contrast, an alternative feminist position is taken by those who see prostitution itself as a form of gendered exploitation. Many feminists argue that the (mainly) women who enter prostitution and the (almost exclusively) men who buy sex are all making choices within a collective context where agency is highly constrained and women’s bodies are socially commodified. This feminist argument forms the basis for laws to tackle exploitation of women, by penalising specifically those who buy sex.

There is growing momentum in support of the “exploitation” approach among policy-makers internationally, following adoption of the first sex buyer law by Sweden in 1999. The Swedish or Nordic model, as it has become widely known, criminalises the purchase of sex, but decriminalises its sale. By targeting the (invariably male) client/buyer, the aim is to reduce demand and thereby decrease the incidence of prostitution and thus the exploitation of the (mostly women) sellers, who are provided with supports to assist them in quitting prostitution.

Variations of Nordic model laws have now been passed in a range of other countries, including Norway, Iceland, Canada, Northern Ireland and France. Their introduction is under review by legislators in different jurisdictions. In Ireland, a similar approach has also been taken, with the criminalisation of those who buy sex through Part 4 of the Criminal Law (Sexual Offences) Act 2017. This legislation was passed following a long campaign led by civil society and women’s groups, the Immigrant Council of Ireland and trade unions, based upon feminist arguments for recognising the gendered context of prostitution. As a legislator, I was very much involved in the process leading to its introduction.

Despite the significant movement among policy-makers worldwide towards seeing prostitution as exploitation, academic literature has become increasingly dominated by those who argue that prostitution is “sex work”. This perspective supports legal structures in which prostitution is decriminalised or legalised, as in the Netherlands or New Zealand.

Mac and Smith’s new text sits neatly within the literature supporting this latter legal framework, clearly positioned on the “sex work” side of the debate. Within the book’s first few pages, they begin attacking Nordic model laws and seeking to justify deregulation of prostitution markets. They regard New Zealand and New South Wales as jurisdictions which come closest to “ideal sex work laws” through the decriminalisation models adopted there. Ostensibly, their argument is made from a women’s- rights-based position. But in reality, when the radical language is pared away, it may more accurately be described as being based upon straightforward neo-liberal economic theory, within which sex is just another commodity, to be traded in as free and unregulated a market as possible.

Unfortunately, this view misses the fundamental problem with prostitution. It is not work like any other kind of work; it is an exploitative and profoundly gendered institution that causes harm both to the women engaged in it, as empirical research shows, and to the construction of gender equality in society more generally. The unique nature of prostitution is implicitly acknowledged in the authors’ own acknowledgement that even in their two ideal jurisdictions, the law has not gone far enough to make sex work safe for the women involved. Perhaps this is because the “work” itself is inherently unsafe.

A genuinely fresh look at the prostitution debate might have accepted or debated this point, or might have offered some recognition of the societal context within which prostitution takes place. Unfortunately, Mac and Smith instead resort to criticising those who support Nordic model laws, for example relying upon tired clichés about links between the Irish law reform process and religious conservatives. They argue that there “is a direct line between these religious orders and the supposedly feminist prostitution policy implemented in Ireland in 2016 (sic)”. Not only are they mistaken as to the year in which we introduced our law reform but they also seem to be unaware that the main impetus for the 2017 Irish legislation came not from religious bodies, but from anti-clerical feminist campaigners and trade unionists who had long fought on LGBTI rights and women’s reproductive rights. They also stoop to unwarranted personalised attacks, referring to a British Labour politician who had previously sought to introduce Nordic model laws in Scotland as someone whose earnings “and her doubly oblivious approach to money, poverty and work ... exemplify carceral feminist thinking about economics and the sex industry”.

There are several other references to “carceral feminism”; indeed Mac and Smith tend to see anyone who supports Nordic model laws as a “carceral feminist”, but this is an internally contradictory phrase lacking any real meaning. Fundamental to every strand of feminism is the core concept of liberation from inequality. It is bizarre to suggest that any particular strand of feminism is based on a foundational support for incarceration. Yet the authors attempt to define such a concept as feminism that “focuses on policing and criminalisation as the key ways to deliver justice to women”. They argue that this approach is misconceived because “the police – and the wider criminal justice system – are key perpetrators of violence against women”.

Their definition lacks any rational empirical grounding and is symptomatic of a major theoretical failing in the book. In castigating the “feminist” movement generally, Mac and Smith appear to ignore the broader range of feminist campaigns over many decades seeking to tackle patriarchy by making the personal political and by exposing gender oppressions widespread within the private sphere (home and family). They fail to acknowledge the real prevalence of sex abuse within the home, and make no reference to long-established feminist advocacy to secure effective laws against sexual and domestic violence perpetrated upon women and children. They also appear to ignore the contemporary feminist #MeToo movement (there is no reference to it even in the index), despite the obvious contradiction between the primacy in law of the concept that free and voluntary consent must form the basis for sexual relations and the existence of laws enabling men to buy the consent of women. If sexual consent has to be bought, it is not freely chosen. A legal framework which facilitates the purchase of consent undermines the concept of free and voluntary consent within sexual relations, the concept upon which our laws against rape and sexual abuse are premised.

Unfortunately the authors do not address this inherent contradiction. Nor do they consider the connections between campaigns for Nordic model laws and feminist activism aimed at tackling domestic and sexual violence, and at ensuring the introduction of effective consent laws. Not only do they take a particularly narrow view of feminism; they also at times present a seriously rose-tinted view of prostitution, even referring to those who “experience sexual gratification at work”. They also demonstrate a misplaced nostalgia for sex workers in previous eras, describing them as the “original feminists” and writing affectionately about the “communities of mutual aid, sharing income and childcare” that apparently existed “in nineteenth-century Great Britain and Ireland”. This view is not evident from any historical accounts that I have read.

However, there are issues upon which a really clear-sighted approach is taken and important points are made by the authors, for example in their critique of those who argue for decriminalisation of sex work but make little distinction between sex workers and sex buyers. Mac and Smith state robustly that the “worker’s interests are not identical to those of the client. Ultimately, the worker is there because they are interested in getting paid, and this economic imperative is materially different from the client’s interest in recreational sex”.

Similarly, they are critical of those who “downplay or even deny that the sex industry can be a site of abuse” and say categorically that “Rape denialism is unconscionable and completely contrary to feminism”. This is a very welcome statement, as is the argument for a move away from simplified binary between “Happy Hookers” and “Exited Women”. Indeed they argue strongly that it is possible to acknowledge the abuse and harm within prostitution while supporting a position in favour of decriminalisation/legalisation.

However, in seeking to put forward this argument they brush over the actual nature of what is involved in prostitution, breezily acknowledging that “Outsiders often think that selling sex must be a pretty horrible job, and many sex workers would agree” but arguing chirpily that “You don’t have to like your job to want to keep it”. Again, this “sex as work” perspective fails to take account of the murky reality of prostitution, and of its broader context; the gender regime that it promotes and the fact that it is premised upon a view of women as objects and a view of consent as capable of being bought.

To be fair, Mac and Smith are critical of the sex workers’ rights movement in some respects, for example challenging the view often put forward by those arguing for legalisation that sex work (ie freely chosen labour) is completely different to trafficking (ie coerced labour). But instead of accepting the argument made by Monica O’Connor and others that entry into prostitution exemplifies the exercise of coerced choices, they say that instead it is the concept of “the border” that is the problem, that borders “were invented to guard against” prostitutes and so there is “no migrant solidarity without prostitute solidarity and there is no prostitute solidarity without migrant solidarity. The two struggles are inextricably bound up with one another.” These are serious and substantive points; but unfortunately it is difficult to see any real prospect for introduction of the radical reform or outright abolition of jurisdictional borders that the writers advocate. Indeed, the awful prospect of increased border controls on this island looms ever larger in the current political context of Brexit.

The authors’ argument on this point does at least recognise the reality of prostitution today in wealthy Western countries like Ireland. In our 2013 Joint Oireachtas Justice Committee report on prostitution, which paved the way for the 2017 law reform by recommending Nordic model laws, we noted the high levels of migrant women engaged in prostitution. We found that the “vast majority of women in prostitution in Ireland today ... [are] ... of non-Irish nationality”. We concluded that tackling demand should be the aim of prostitution law, and that achieving such a reduction in demand would lessen the incidence of harms associated with prostitution and – particularly in view of the predominance of migrant women in prostitution in Ireland – the economic basis for human trafficking into this State for the purpose of sexual exploitation.

It is a pity that Mac and Smith do not address more explicitly the stark fact that those engaged in prostitution today, in Ireland and other developed countries, are predominantly drawn from severely disadvantaged migrant communities. Nor do they address the real abuses and exploitation within the pimping relationship itself. They refer to pimping as “managed sex work”, and even suggest that laws criminalising pimps unfairly target those who provide support to individual sex workers, such as a “spouse or partner who helps answer emails or schedule appointments, a receptionist who works the phones for tips in a brothel ...”. Again this represents a rather romanticised view of the real conditions for many engaged in prostitution.

The authors are on less contentious ground in their strong critique of what they call the “prison nation” approach to prostitution taken in jurisdictions like the US, South Africa, Kenya and Russia, where women selling sex are heavily criminalised. Indeed, our Committee was clear about the need for abolition of pre-existing Irish laws based on public nuisance principles, under which women were criminalised for offering sex for sale in public. However, their discussion of the Nordic model jurisdictions is very problematic. They present this discussion in a chapter entitled “The People’s Home: Sweden, Norway, Ireland and Canada”. As someone who has fought for women’s reproductive rights in Ireland for over thirty years, I did relish those words. It is wonderful to see Ireland listed in a chapter heading among those countries with the strongest records on women’s rights in the world. Surely even the most ardent neo-liberal theorist would accept that gender equality is more established as a core legal norm in Sweden, Norway and Canada than it is in most other countries? Even the authors tacitly accept this, acknowledging that “For decades, the countries of Scandinavia have been seen as the feminist nations.” They also accept that many advocates of the Nordic model are “driven by straightforwardly progressive concerns”; but their main counter-argument appears to be based on anecdotal accounts suggesting that prices for sex have reduced under Nordic model laws (ironically showing that the laws are having an effect on the extent of demand); and that therefore women who sell sex are more likely to take risks and suffer harm as a result.

They are also critical of failures by states like Ireland to offer financial supports to those seeking to quit prostitution; for example by ensuring that asylum seekers have real economic choices other than prostitution. This is a fair point; many of us have sought increased funding for exit strategies and a complete overhaul of the direct provision system for asylum seekers in Ireland for many years; but delay in reforming these areas is not of itself a reason to oppose Nordic model laws. Similarly the authors refer critically to individual examples of prosecutions for brothel-keeping, evictions and deportation of sex workers in and from jurisdictions that have introduced Nordic model laws. Again, many of us who support Nordic model laws have also campaigned against imprisonment, deportations and evictions of disadvantaged individuals or families; but again this is not a reason to oppose the law reform itself in principle.

In fact, the fundamental premise of the authors’ opposition to the Nordic model is revealed in the final paragraph of this extensive chapter, where they say finally that “any policy that makes sex workers poorer will also tend to make them less safe”. Here the true premise of their argument is revealed. It is, as previously suggested, a basic neo-liberal premise: sex workers should be free to trade in an unregulated market. In keeping with this approach, the authors are critical of what they call the “regulationist” models in Germany, the Netherlands and Nevada, as they involve penalising those sex workers who do not comply with regulations. This is a puzzling position to take, since presumably they would agree with the existence of legal penalties for violations of health and safety laws and other workplace regulations. Those who argue that sex work should be considered as a form of work must accept that it would then be subject to standard labour market laws.

In concluding, the authors say that “As sex workers and feminists, we ... are working towards a radical feminism that can abolish borders, capitalism, and the sex industry without causing harm to sex workers.” This utopian rallying call sits uneasily with their critique of pro-Nordic model feminists who, as they put it, believe in a Scandinavian utopia. Their concluding words are “When prostitutes win, all women win”. This is a profoundly disturbing slogan, suggesting that women win when the right for men to buy their consent is won. To win the right for women to be exploited, for our consent to be bought? That’s not a feminist victory.

1/9/2019

Ivana Bacik is a Senator for Dublin University (first elected 2007), Reid Professor of Criminal Law, Criminology and Penology at Trinity College Dublin, and a barrister. She has published extensively on criminal law, criminology, human rights, constitutional law and related matters, and has a long track record of campaigning on feminist and human rights issues. 

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