Michael McDowell (Independent) | Oireachtas source

I have the greatest of difficulties with the provisions of this section of the Bill. I know it has had a long history. I know it has been considered at great length in a number of forums. I know it has a vocal support group among the community.I have come to the conclusion that it defies common sense and is a seriously flawed proposal.

The effect of the section is to amend the Act of 1993. That Act was passed by Dáil Éireann when I was a member of the Opposition in that House. It decriminalised homosexual behaviour and dealt with the offence of soliciting for the purposes of prostitution. Section 7 of the Act states:

A person who in a street or public place solicits or importunes another person or other persons for the purposes of prostitution shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding—(a) £250, in the case of a first conviction,

(b) £500, in the case of a second conviction, or

(c) £500 or to imprisonment for a term not exceeding 4 weeks or to both, in the case of a third or any subsequent conviction.

That was the law when it was restated in 1993. Section 6 of that Act states:

A person who solicits or importunes another person for the purposes of the commission of an act which would constitute an offence under section 3, 4 or 5 of this Act or section 1 or 2 of the Criminal Law Amendment Act 1935 shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months or to both.

Section 8 states:

(1) A member of the Garda Síochána who has reasonable cause to suspect that a person is loitering in a street or public place in order to solicit or importune another person or other persons for the purposes of prostitution may direct that person to leave immediately that street or public place.

(2) A person who without reasonable cause fails to comply with a direction under subsection (1) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding—(a) £250, in the case of a first conviction,

(b) £500, in the case of a second conviction, or

(c) £500 or to imprisonment for a term not exceeding 4 weeks or to both, in the case of a third or any subsequent conviction.

That was the law and the view taken by the Dáil at the time. It was a liberalising measure, but it was replacing several statutory provisions of considerable age.

Section 1(2) of the 1993 Act defines "solicits or importunes" for the purposes of prostitution in three ways:

In this Act a person solicits or importunes for the purposes of prostitution where the person—(a) offers his or her services as a prostitute to another person,

(b) solicits or importunes another person for the purpose of obtaining that other person’s services as a prostitute, or

(c) solicits or importunes another person on behalf of a person for the purposes of prostitution.

It is worthwhile reminding ourselves what that section meant. It meant that someone was guilty of soliciting or importuning for the purposes of prostitution where he or she offered services as a prostitute to another person. However, the only offence created was doing it in a public place. It was not an offence to do it elsewhere. The first part of section 25 of the Bill, as sent by the Dáil, will remove from the definition of soliciting or importuning the act of offering services as a prostitute to another person. This creates a situation where, if the Bill is passed, a person can offer his or her services and it will not be an offence.

Under section 25 there will be a new section 7A in the Act of 1993, subsection (1) of which provides:

A 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 purpose of engaging in sexual activity with a prostitute shall be guilty of an offence and shall be liable on summary conviction--(a) in the case of a first offence, to a class E fine, and

(b) in the case of a second or subsequent offence, to a class D fine.

That is the first point. It means that anyone who pays any other person, including a prostitute, any form of remuneration or money for engaging in sexual activity is to be guilty of an offence. Subsection (2) of the proposed section 7A defines sexual activity as follows:

In this section ‘sexual activity’ means any activity where a reasonable person would consider that—(a) whatever its circumstances or the purpose of any person in relation to it, the activity is because of its nature sexual, or

(b) because of its nature the activity may be sexual and because of its circumstances or the purposes of any person in relation to it (or both) the activity is sexual...

What does that mean in layman's language? It does not mean merely physical acts of sexual intercourse or things like it. It could mean many things. It could mean sado-masochism or fetishism in circumstances where one person engages in fetishistic behaviour with another. That is being brought into the category of sexual activity. For the first time, the section will make it a criminal offence to pay someone else to engage in such activity. Let us see what it does not do.

Let us suppose Lili Marlene is under a street lamp loitering and a person pays her money. It does not mean that that person is the only person who commits an offence. It means far more than this. It means that a woman who pays a male escort for services in a hotel commits an offence. It means that a man who pays what customarily is described as a rent boy in a hotel commits an offence. Let us consider another example. Let us suppose a woman, married or unmarried, goes to a hotel lobby, picks up a male escort, brings him home, has sex with him and pays him. It means that she commits a criminal offence. The section does not apply only to the 18 year old from County Kerry in Dublin for the all-Ireland final who walks down O'Connell Street with a few jars in him, meets a prostitute and goes up a laneway. It applies to every form of prostitution, wherever and by whomever the offence is committed. For the first time, it is to be made a criminal offence in Ireland. I call on those present to contemplate this. We are now saying anyone who pays anyone else money to engage in fetishistic behaviour, sexual intercourse or other forms of sexual interaction between people in their own home, in the other person's home or anywhere else, including a hotel room or any other place, commits a criminal offence.

We are told that this is an advance in the law. Is it? Is it to be the case that someone, for example, a woman who is lonely enough to go to a hotel and go home with a young gigolo or male escort, should be criminalised. I call on the Minister of State to ask himself that question. In what circumstance would anyone in this House suggest such a person should be brought before a court? That is the law we are being invited to enact by the Minister of State. Why should someone in these circumstances be made a criminal and liable to be prosecuted? I am not simply talking about the young 18 year old up from County Kerry in Dublin for the all-Ireland final who will have his life ruined by a conviction in the court and the report in the Evening Herald. It will have implications for his career and the conviction will always be there.I am not talking about the poor fellow who will be solicited, without criminal offence, by a prostitute on the street and agrees to go into a hotel on Gardiner Street or somewhere like that and have it off with her. I am not talking about somebody like that who is that guileless and pathetic, whose life will be ruined by being brought before the District Court to be publicly humiliated and who will lose their employment prospects. I am talking about a vast variety of people who are quite different from that.

To return to the example of the woman I gave who goes to a hotel and picks up a male escort, what happens to her if she is prosecuted? She could be in a position of authority in employment which would be immediately terminated if her employer saw a newspaper report of her conviction and asked her if she was convicted in the District Court yesterday of paying a male escort. That is what we are being asked to do by a group of people who, out of huge conviction, believe this is the way to go forward.

It has never been the case until now that a woman who took money for sex had committed a criminal offence. Women who barter their bodies for sexual gratification by men and take reward for it are not punished now. I do not know whether many Members of this House have looked at BBC documentaries about young university undergraduates in England who deliberately supplement their meagre student grants by acts of casual prostitution but it happens. It has never been the case that any of those people have ever committed a criminal offence. A young woman who does that today or tomorrow does not commit a criminal offence. As the law stands, nobody can prosecute her, and that is the end of the matter.

As was indicated earlier in this debate, prostitution has changed dramatically. Most prostitution is not done on Benburb Street, Burlington Road or wherever it used to be done in Dublin; it has moved up a notch in terms of its sophistication. There are many prostitutes, male and female, who supply services either in hotels or in their customers' homes and that is not an offence now for a man, for a woman or for the purchaser of those services. Yet we are being told that we must stop that and we must criminalise those people who pay for those services. I cannot for the life of me think why that is a good idea per se. There are provisions in the Bill regarding trafficked women and men who are the object of prostitution and there are special measures to protect them. I do not need a lecture from Members of this House on the evils of the trafficking of women because I know a great deal about it, having been Minister for Justice, Equality and Law Reform. I know what has happened to Ukrainian, African and eastern European women who have been brought to Ireland and the circumstances in which they have been kept and exploited by pimps. I know about their passports being taken from them and I am not ignoring one jot of that but I am pointing out that a woman who offers prostitute services at the moment and a person who purchases her services do not commit any crime. The law of this State should not attempt to criminalise either of them. The act of prostitution is not, as the law stands, criminal and should not be made per secriminal, which, for the first time, this section proposes to do.

People may ask what is the likelihood that a woman who has brought a male escort to her own home, given him €200 and thanked him for his services or a man who has done the equivalent to a woman or to another man would be brought before the courts. Is the Minister of State speaking of the real world or of the unreal world? I am speaking of the very real world - which none of the proponents of this legislation have ever even bothered to think about - of blackmail and thuggery. There are pimps and they will not go away. They will know to whom their prostitutes are supplying services and it will be easy for a rent boy, a male escort, a woman prostitute or whatever description one wants to put on the prostitutes we are dealing with here to blackmail their customers. When it comes to the payment of the €200, it would be very easy to take out one's camera, take a picture of the person and threaten that person that one would go to the Garda and reveal that the person has paid one for sex. If the Minister of State does not think that is possible, he should think this through. If a male escort is brought to a woman's home - she being a married woman whose husband is away on holidays - and he sees that it is an opulent home, that woman presents an easy opportunity for him to tell her that the bill is now €1,000 or that it will €2,000 by tomorrow evening and that on payment of the money, he will put away his mobile phone and will not report the matter to Donnybrook Garda station. Where are we then with this? How will all the wise people who know so much about trafficking deal with that situation, where people are subject to blackmail and being brought before the courts because they paid for sex?

We need only note what happens in the English tabloid newspapers where celebrities are set up by prostitutes in England. Usually, there is no blackmail involved unless drugs are taken in the hotel bedroom or unless the person is politically prominent, a prominent footballer or something like that, as there is no story for the tabloid to run with. Those types of people are vulnerable to the activities of prostitutes who would sell their stories. The Minister of State is proposing in this legislation that everybody from this day forward who pays anybody else for sex in whatever circumstance commits a criminal offence. He is also saying that this applies to anybody who pays for even some kind of weird fetish to be performed for his or her gratification. For instance, there are people who like to see other people abuse themselves and will pay for voyeuristic sex just simply to watch another person having sex or doing something sexual. All of that is now to be criminalised by this legislation if it becomes law. Anybody who ever does that will henceforth be in the position that he or she will be liable to criminal prosecution and, much more important, liable to blackmail.

The balance at the moment is not right. In case anybody has any doubts about it, I believe in decriminalising prostitution. I do not believe that the mere act of payment one way or the other should have any criminal consequences and I believe the law should remain that way.The Bill seems to state, with the amendments it is proposing, that importuning sex is no longer constituted by offering oneself.As I wrote in the The Sunday Business Postrecently, we have created a grotesque alternative universe where the law says it is perfectly okay to offer oneself for sex for money but it is criminal if anybody, no matter how vulnerable, takes up that offer. What purpose is served by such a change in our laws? It is indefensible morally and in terms of equity and fairness. It is indefensible that a 30 year old seasoned female prostitute, for instance, can offer her services to an 18 year old lad who wants to have his first experience of sex and to pay for it and her offer is regarded as something with which the law is not concerned. His foolishness, on the other hand, in taking up that offer is something that brings him before a District Court judge in the Bridewell or in the Criminal Courts of Justice, with reporters all watching what is going on, and results in humiliation for him, the loss of his job and damage to his future employment prospects. We live in an Internet world and we must remember that. Employers run checks and if that lad's name and address comes up, he will never escape the indelible damage done by having been convicted for such an offence.

I would also say to the women here today, in particular, that the same applies to women. There are many women, admittedly not as many women as men, who pay male escorts for sex and the same applies to them. If they are discovered, blackmailed, exposed or revealed to An Garda Síochána, they can be brought before the criminal courts and prosecuted for what they have done, even if the male escort decides to pick up the best piece of silver as he leaves the room or the house. If he decides to do that, she is faced with a dilemma because if she reports that, she can be brought before the courts if he says that he took money for sex on that occasion. That is the new law that we are being asked to introduce and there is no useful purpose to be served by it. It does not stop trafficking or prostitution.

Senator Niall Ó Donnghaile is from Belfast. His party supported similar legislation in Northern Ireland. I take it that I am not going to be informed by him in the course of this debate that since the introduction of that offence two years ago in Northern Ireland, prostitution has stopped and no longer occurs there. I take it that I am not going to be told that. I am also anxious that somebody who proposes this nonsensical piece of-----