Ivana Bacik (Independent) | Oireachtas source

I did not interrupt Senator McDowell.Senator McDowell suggested that, in some way, the sellers of sexual services who are not currently criminalised would become criminalised under this legislation but that is not the case. In fact, the seller will be decriminalised.

In respect of his argument on aiding and abetting, Senator McDowell referred to the Petty Sessions (Ireland) Act but one could also simply ask whether the Director of Public Prosecutions could prosecute for conspiracy in that sort of situation, simply using the common law. The answer is clear and is addressed in the response of the Joint Committee on Justice, Defence and Equality to questions raised by the then Minister for Justice and Equality, former Deputy Alan Shatter, in 2013. All of this information is accessible on the Oireachtas website. The committee issued a response to the Minister in November 2013, where we pointed out that the Constitution permits the Oireachtas to take a view on social policy issues and on a relationship such as that between the seller and purchaser of sex. There is an inherent imbalance of power in such a relationship and, on social policy grounds, the Oireachtas is entitled to legislate so as to make one party to what may be seen, in some quarters, as a consensual transaction criminally liable and not the other. Indeed, we have the MD (Minor) v.Ireland judgment of the Supreme Court of 23 February 2012 in which the court upheld the criminalisation of under age intercourse for a boy but not for a girl. We did deal with that issue at the time.

When one looks at the legislation and the section we are currently debating, one sees that subsection (a) amends the 1993 Act specifically to decriminalise the person who is loitering or soliciting for the purpose of offering services as a prostitute. That is an important change that clearly reflects the view of the Oireachtas to date in getting the legislation to this point, which is that this is a relationship that is not equal. It is a relationship of exploitation and one in which one party can be viewed as the exploited party and is, therefore, not to be criminalised.

In terms of the arguments in favour of the legislation made at committee, which we accepted and which formed the basis of our recommendations, having received 800 submissions and held a series of public hearings, we found prostitution to be widely available across Ireland, highly organised and highly profitable. We also found that it was highly exploitative and largely controlled by organised crime businesses. We heard from women who were engaged in prostitution and women who had left it. We heard from women who were in favour of the Swedish approach and from those who were against it. We found that women were entering prostitution in Ireland at a young age; many were under 18 and many were trafficked into prostitution. Senator McDowell has spoken about that. The vast majority of prostitutes here are pimped. I asked a question of one witness at the committee who was arguing for a decriminalisation model and who spoke of herself as an independent escort and someone who was not pimped. I asked her how many prostitutes she would be representative of and she said in the region of 15% to 20% of those involved in prostitution. That was her analysis and it is a pretty low figure, although the Kelleher report and other research conducted in Ireland would suggest that it is a rather inflated one. Nonetheless, the view we took was that the Oireachtas would be entitled to legislate to protect the vast majority of those engaged in prostitution who are pimped and exploited in this way.

Those who dispute this approach end up either arguing for full decriminalisation or defending the status quoand saying that we should not make this change. I must say, as someone who worked in criminal practice for many years and represented women on prostitution charges, that the current Irish model of regulating prostitution is deeply flawed. It is based on a very outdated notion of nuisance.