Women’s Studies International Forum 86 (2021) 102457

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Women's Studies International Forum

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#MeToo, consent and prostitution – The Irish law reform experience

Ivana Bacik
Reid Professor of Criminal Law, Criminology and Penology, Law School, Trinity College Dublin, Ireland

A R T I C L E I N F O A B S T R A C T

Keywords: The recent reform of Irish prostitution law introduced in Part 4 of the Criminal Law (Sexual Offences) Act 2017,
Ireland which criminalised the purchase of sexual services, is based upon 1999 Swedish legislation in accordance with an
Prostitution law approach termed ‘the Nordic model’. The Nordic approach has been subject to criticism from those who argue
Nordic model
that laws criminalising sex purchase offend against personal autonomy. This article challenges that criticism, and
Consent
#MeToo
offers feminist arguments for the reform, which represented a significant turn in the focus of Irish law from a
framework based upon prohibition of public nuisance, towards an approach which views prostitution as an
inherently exploitative transaction within a gendered context. The author argues that feminist arguments in
support of the new Irish law are based upon reconsideration of consent as a legal concept, informed by insights
gained through the work of the #MeToo movement on the need to take account of social and economic contexts
within which consent is given and choices made.

1. Introduction emergence of the international #MeToo movement initiated by Tarana

Burke (see I. Bacik, 2020). However, only in recent decades, and later
To date, insufficient attention has been paid in academic feminist than in most other European jurisdictions (Connolly, 2003), has the
scholarship or feminist activism to the links between the #MeToo feminist movement in Ireland become influential in achieving reform of
movement and prostitution law reform. Campaigns against sexual laws on equality, abortion, sexual harassment, sexual offences and
harassment inspired by the international focus on #MeToo have estab­ prostitution.
lished that harassment in the workplace is actionable, irrespective of Statutory reform in 2017, following extensive feminist campaigning,
whether consent has apparently been given. It has thus become accepted introduced significant changes for the trial of sexual offences. Among
that unwanted sexual advances can represent an unlawful abuse of other provisions, the 2017 Criminal Law (Sexual Offences) Act created a
power in certain contexts. It is argued here that this insight, based upon new definition of consent in the context of sex crimes. It also criminal­
the experiences of those harassed, those who are largely without power ised the purchase of sex for the first time in Ireland, thereby incorpo­
in the workplace, should also inform academic and political discourse on rating the ‘equality approach’ to prostitution, or the ‘Nordic model’. This
prostitution. The example of recent Irish law reform passed in 2017 model is associated with the 1999 sex purchase ban law passed in
which criminalised the purchase of sex and which also introduced a Sweden; that law sought to reduce demand for prostitution by targeting
statutory definition of consent, is considered in this context. the buyers of sex, while decriminalising those engaged in selling sex.
Until relatively recently, a culture of secrecy and repression around The Nordic model seeks to reduce demand for prostitution by ban­
sexual matters had persisted for many decades in Ireland, a country in ning its purchase through targeting the (invariably male) buyers. It is
which the Catholic Church has traditionally dominated public life and associated with a perspective that sees prostitution as inherently
private ethics (Ferriter, 2009). The power of the Church is waning, as exploitative and harmful to the (predominantly) women engaged in it; a
powerfully symbolised in the passage of the 2015 marriage equality societal gender inequality (Ekberg, 2004; Erikson, 2017b; Erikson and
referendum and the 2018 referendum legalising abortion. The declining Larsson, 2019; Jakobsson & Kotsadam, 2013; Skilbrei & Holmstrom,
dominance of religious doctrine has been particularly evident since the 2013; Svanstrom, 2004; Waltman, 2011; Yacoub, 2019). Since the
publication of reports documenting high levels of sexual abuse histori­ introduction of the first sex purchase ban law in Sweden, similar laws
cally carried out against children in religious-run institutions, previously have been passed in Norway, Iceland, Canada, France and Israel – as
unreported (S. Ryan, 2009). well as in Northern Ireland and Ireland. Yet its premise has been subject
The true extent of sexual harassment and gender-based violence to criticism from those who argue that laws criminalising sex purchase
generally is also known to be greatly under-reported, in Ireland as offend against personal autonomy and deny the agency of the women
elsewhere, although now being discussed more openly following the who choose to engage in selling sex.

https://doi.org/10.1016/j.wsif.2021.102457
Received 20 May 2020; Received in revised form 29 January 2021; Accepted 19 February 2021
Available online 16 March 2021
0277-5395/© 2021 The Author. Published by Elsevier Ltd. This is an open access article under the CC BY license (http://creativecommons.org/licenses/by/4.0/).
I. Bacik Women’s Studies International Forum 86 (2021) 102457

Arguments ostensibly defending women’s right to choose have a as meaning an assault in circumstances of indecency, including acts of
powerful resonance among feminist campaigners, particularly in Ireland sexual groping or threatened groping, as well as more serious sexually
where the pro-choice movement only succeeded in bringing about the abusive behaviours. Harassment (including sexual harassment) is spe­
legalisation of abortion through a referendum passed in 2018 – long cifically criminalised under section 10 of the Non-Fatal Offences Against
after most other European jurisdictions had liberalised legal frameworks the Person Act 1997, defined as ‘persistently following, watching,
for women’s reproductive health. Thus, autonomy-based arguments for pestering, besetting or communicating with’ a person, so as to ‘seriously
legalisation or decriminalisation of prostitution have real attraction for interfere’ with their ‘peace and privacy’ or to cause ‘alarm, distress or
feminists, particularly in Ireland. harm’ to them.
But it is argued here that these arguments are fundamentally mis­ Sexual harassment which does not fit the criminal definitions either
conceived when applied to prostitution. Suggesting that the law should of sexual assault or of harassment under section 10 of the 1997 Act can
validate women’s ‘choices’ to sell sex is akin to suggesting that the law however be actionable under civil law. Apart from the criminal law,
should uphold women’s freedom to ‘consent’ to sexual harassment or under civil law employers in Ireland have a legal duty of care to have
indeed to intimate partner violence. Indeed, academic research and adequate policies in place to ensure dignity at work is safeguarded,
scholarship have challenged the view that sees women as ‘consenting’ to under the Employment Equality Acts 1998–2015 and the Safety, Health
remain within violent relationships in the context of domestic violence and Welfare at Work Act 2005. The employment equality legislation
(See for example Leidholdt, 2003; M. O’connor, 2017). The flawed covers nine different grounds of discrimination: namely gender, civil
premise of the autonomy argument is exposed when the discourse on status (such as being single, married etc), family status (parenting re­
prostitution is considered alongside the insights and gains achieved, not sponsibility), sexual orientation, age, disability, race (including na­
only by the feminist movement against domestic violence, but also more tionality), religious belief or membership of the Traveller community.
recently by the #MeToo movement on sexual harassment. Trade union membership, economic status and political opinion are
among the grounds not covered. Harassment based on any of the nine
2. #MeToo in Ireland – law on harassment specified grounds is regarded legally as a form of discrimination in
relation to conditions of employment.
Before the international media focus on the #MeToo movement Under section 14A of the 1998 Act, harassment is defined as ‘any
emerged late in 2017, there had already been significant public focus on form of unwanted conduct related to any of the discriminatory grounds’.
gender discrimination and sexual harassment in Irish society, which had In the same section, sexual harassment is defined as covering ‘unwanted
influenced the passage of the Criminal Law (Sexual Offences) Act 2017. verbal, non-verbal of physical conduct of a sexual nature’. To constitute
In November 2015, the grassroots campaign #WakingTheFeminists had either harassment or sexual harassment, the conduct must have ‘the
been formed by a group of women working in theatre to protest against purpose or effect of violating a person’s dignity and creating an intim­
the male-dominated lineup in the Abbey (Irish National Theatre) cen­ idating, hostile, degrading, humiliating or offensive environment for the
tenary programme marking 100 years since the 1916 Easter Rising, a person’. The statutes protect employees and independent contractors;
formative moment in the birth of the Irish State. The campaign mobi­ other equality legislation covers consumers and protects against sexual
lised women in the arts, the media and elsewhere to highlight discrim­ and other harassment on the same nine grounds in the provision of
ination, marginalisation and harassment issues. goods and services.
Following the passage of the 2017 Act, writer/director Grace Dyas Irish equality legislation does not require those alleging harassment
published online allegations of sexual harassment against the former before the civil courts or tribunals to show that they did not consent to
director of another leading Dublin theatre, the Gate; more women then any sexual advances made. The civil law test is based upon the less
came forward publicly with similar allegations (Falvey, 2018). These onerous requirement to show that the conduct was ‘unwanted’, and had
developments, along with the extensive reporting about #MeToo in the ‘the purpose or effect of violating a person’s dignity…’
Irish media, may well have influenced many victims and survivors to By contrast, criminal laws prohibiting sexual assault and rape require
speak out for the first time about their abuse. In September 2018, the the prosecution to show beyond reasonable doubt that the complain­
Crime Victims Helpline published its Annual Report showing that the ant’s consent was absent in order to secure a conviction. Those under a
number of people contacting the service about rape or sexual assault in stated age (17 for sexual intercourse) are deemed legally incapable of
2017 had more than doubled over the previous year (Gleeson, 2018). giving consent.
The #MeToo movement was unlikely, however, to have been the Following years of campaigning by feminist activists, survivors’
only catalyst for this increase in reporting of sexual abuse. The pro­ groups and rape crisis centres, extensive reform of the criminal law on
ceedings of a Belfast rape trial, in which the accused men were all well- sexual offences was introduced through the Criminal Law (Sexual Of­
known rugby players, dominated the Irish media over nine weeks until fences) Act 2017. In Part 8 of the Act, a statutory definition of consent
the end of March 2018 (see Gallagher, 2018). When the men were all was included for the first time in section 48, which creates a new section
acquitted, thousands came out on Dublin streets to protest at the verdict, 9 of the Criminal Law (Sexual Offences) (Amendment) Act 1990. The
using the hashtag #IBelieveHer. The case, albeit that it was tried in a new section 9(1) provides that a ‘person consents to a sexual act if he or
different legal jurisdiction (Northern Ireland), was described as gener­ she freely and voluntarily agrees to engage in that act.’ Section 9(2) lists
ating Ireland’s own #MeToo movement across the whole island. a number of situations where a person ‘does not consent to a sexual act’
The public outcry surrounding the verdict led to initiation by the in law, including where a person is asleep, unconscious, mistaken as to
government of a review of the investigation and prosecution of sexual the nature of the act or the identity of any other person involved; or
offences, chaired by legal expert Tom O’Malley, which reported in incapable of consenting due to the effect of alcohol or drugs. Section 9
August 2020 on further necessary procedural changes within the crim­ (3) states however that the section ‘does not limit the circumstances in
inal justice system beyond those introduced through the 2017 Act (T. which it may be established that a person did not consent to a sexual
O’malley, 2020). However, even prior to 2017, laws had already been in act.’ The buying of consent is not itself covered in section 9, although
place prohibiting sexual harassment and assault. Criminal laws protect section 9(2)(h) provides that a person does not consent where ‘the only
both men and women in Ireland against rape, sexual assault, and other expression or indication of consent or agreement to the act comes from
forms of sexual abuse. The gender-specific offence of rape (requiring the somebody other than the person himself or herself.’ In other words, a
perpetrator be male and the victim female) is criminalised under section person’s consent is not legally present where somebody else has pur­
2 of the Criminal Law (Rape) Act 1981; a gender-neutral offence of rape ported to give it on their behalf.
(penetrative sexual assault) is criminalised under section 4 of the The 2017 Act also introduced a series of significant procedural and
Criminal Law (Rape) (Amendment) Act 1990. Sexual assault is defined evidential reforms to the trial of sexual offences. However, its most

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controversial effect was through the provisions it introduced in Part 4, caused to women exploited through prostitution.
which through sections 25–27 criminalise the ‘purchase of sexual ser­ The first emergence of a radical feminist discourse on prostitution in
vices’, thereby incorporating the ‘Nordic model’. This legislation marks Ireland, focusing on the experiences of women selling sex, came with the
a profound change in Irish law on prostitution; its origins and contexts publication in 2004 of a report by the National Observatory on Violence
are considered below. Against Women, which concluded that prostitution represented a
fundamental violation of women’s human rights (National Observatory
3. Irish law on prostitution on Violence Against Women, 2004). In 2008, an academic report simi­
larly concluded that Irish prostitution law was flawed, and that the
Irish law on prostitution has a long and complex history – from the Swedish legislative approach was preferable as it ‘most fully encapsu­
Contagious Diseases Acts and Vagrancy legislation of the nineteenth lates human rights protections as provided for in United Nations (UN)
century, to the focus on the so-called ‘common prostitute’ in early- human rights treaties’ (Trinity College Dublin Centre for Gender and
twentieth century legislation (Luddy, 2007). Despite changing legal Women’s Studies, 2008: 15). At the same time, a number of feminist and
regimes, some themes remained constant throughout. Above all, the sale migrants’ rights groups, notably the Immigrant Council of Ireland (ICI),
or purchase of sex was not itself an offence; the criminal law was not became prominently engaged in highlighting the exploitation of migrant
designed to suppress prostitution, just to curb its public display. This women engaged in prostitution. Arising out of these initiatives, the ICI
remained the case until the introduction of the 2017 law criminalising initiated the formation of a new organisation, Turn Off the Red Light
the purchase of sex in Ireland. Over the years prior to that reform, Irish (TORL, 2009). This became a campaigning coalition of non-
prostitution law had ‘developed historically in a clearly gendered way.’ governmental organisations (NGOs), trade unions, political organisa­
(I. Bacik, 2019: 21). This approach was continued even with changes tions and other groups advocating as a policy goal the reduction or
introduced following feminist activism leading to the passage of the elimination of prostitution through criminalising the purchase of sex.
Criminal Law (Sexual Offences) Act 1993, which re-defined prostitution- However, an alternative ‘sex work’ perspective on prostitution was
related offences in gender-neutral language. Notwithstanding the emerging in Ireland at the same time, heralded by the formation in 2006
expanded definitions, even after 1993 the law continued to be applied of the Sex Workers Alliance Ireland (SWAI), which argued for a harm
‘in a clearly gendered way.’ (I. Bacik, 2019: 21), with women much more reduction model and opposed criminalisation of the purchase of sex.
likely than men to be prosecuted; the re-defined offences were still based Despite this development, the political momentum behind the Nordic
upon the traditional legal approach taken in Ireland, criminalising those model was accelerated by a change of government following the 2011
engaged in ‘soliciting’ in a public place. Only the offer of sex for sale in General Election, and the issue was soon brought up within parlia­
public was criminalised; it remained the case that it was not an offence mentary debates in motions supporting the Nordic model tabled in the
for a person to buy sex, in public or in private. The focus was on con­ Seanad (Senate), the upper House of the Irish Oireachtas (parliament).
cealing the sale of sex, not explicitly outlawing it; a ‘distinctly ambiva­ In 2012, following this initiative, the Joint Oireachtas (parliamentary)
lent’ legal structure (T. O’malley, 2013: 202). Prostitution was legally Justice Committee initiated a public consultation on prostitution law
framed as ‘public nuisance’, not private exploitation. reform. The Committee received over 800 written submissions, of which
By the late 1990s, just as increased focus had turned to the issue of approximately 80% supported the Nordic model. A series of public
trafficking internationally, so in Ireland, criminal justice policy had hearings were held, and a Committee delegation visited Sweden to meet
begun increasingly to focus on transnational aspects of prostitution. In those involved in implementation of the law there. The process culmi­
their review of studies examining the incidence of prostitution in Ireland nated in publication of a June 2013 report which referred to the
over the decades following the introduction of the 1993 Act, O’Connor extensive evidence on the harms associated with prostitution, and on the
and Breslin (2020:21) note that this period marked ‘the transformation reduction of demand for prostitution in Sweden since 1999, concluding
of the Irish sex trade from a relatively small, mainly street-based activity
such a reduction in demand will lessen the incidence of harms
in major cities to a widespread sizeable market of migrant women’.
associated with prostitution and – particularly in view of the pre­
While E. Ward and Wylie (2007) had conducted a limited study of
dominance of migrant women in prostitution in Ireland – the eco­
trafficking into Ireland, it was the publication of a major report by
nomic basis for human trafficking into this State for the purpose of
Kelleher Associates (2009) that first provided a detailed overview of
sexual exploitation … the approach adopted in Sweden has had a
prostitution in Ireland. That report emphasised the predominance of
strongly positive normative effect on social attitudes to sexuality and
women from outside Ireland in the sex trade, concluding that ‘Of the
gender equality in that country
estimated 800-1,000 exploited in the Irish commercial sex trade at any
given time, between 87 and 97 per cent are migrant women, with 51 (Joint Oireachtas Committee on Justice, Defence and Equality, 2013:
nationalities identified, at least 10 per cent being trafficked women and 69–70)
girls’ (M. O’connor & Yonkova, 2019: 42; see also M. O’connor, 2017).
Subsequent to the Kelleher report, research was published by the Thus, the report recommended the adoption of an offence penalising
Immigrant Council of Ireland which again provided evidence as to the the purchase of sexual services. Other significant recommendations
gendered patterns and extensive exploitation of migrant women in the included including the introduction of properly resourced services for
Irish sex trade (Yonkova & Keegan, 2014). Further evidence for the high those engaged in prostitution, so as to minimise harms risked by them
proportion of migrant women engaged in prostitution lies in the annual and to support their exit where they wished to leave prostitution.
reports published by Ruhama, an organisation supporting women A draft Criminal Law (Sexual Offences) Bill was published in
affected by prostitution (Ruhama, 2016-2019). November 2014, with provisions criminalising the purchase of sexual
In 2008, the increasingly transnational nature of Irish prostitution services included, but it took further ten months before the bill itself was
was formally recognised in statute when the Criminal Law (Trafficking) published. Prior to that, the process of change in Irish law had been
Act was passed, criminalising the trafficking of persons for ‘sexual overtaken by more rapid developments in Northern Ireland, with the
exploitation’, defined to include prostitution. Increasing awareness enactment in January 2015 of a Nordic model law there: the Human
about the hidden exploitation of migrant women engaged in prostitution Trafficking and Exploitation (Criminal Justice and Support for Victims)
in Ireland, along with a growing interest among feminist activists in the Act (Northern Ireland) 2015. Section 15 created the new offence of
emergence of the new legal approach to prostitution adopted by Swedish ‘paying for sexual services of a person,’ inserting a new Art 64A into the
law, were both significant factors in the law reform process in the years Sexual Offences (Northern Ireland) Order 2008. That law has since been
leading up to the 2017 reform. Over this time, the traditional ‘public subject to critical academic comment (see for example Ellison, 2017;
nuisance’ focus came under criticism for failing to address the harms Huschke, 2016; Huschke and Schubotz, 2016; Huschke and Ward,

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2017). 4. Discourse on prostitution and sex work

Opposition to the Nordic model approach was similarly expressed by
the Irish branch of Amnesty International, which in August 2015 voted Any meaningful analysis of the 2017 law reform in Ireland must take
to support decriminalisation of prostitution (see Holland, 2015). This account of the broader theoretical context for adoption of the ‘Nordic
position placed Amnesty in direct confrontation with the TORL model’ or equality approach. A growing momentum in support of this
campaign, which by then had over 70 Irish trade unions and NGOs as approach may be identified among policy-makers in different countries.
affiliates. But this approach is generally opposed by those writing from a ‘sex
These developments meant that by the date of the bill’s final publi­ work’ perspective, who tend to advocate for legal structures in which
cation in Ireland in September 2015, a concerted opposition to the prostitution is decriminalised or legalised, as in jurisdictions like Ger­
introduction of the Nordic model had emerged in Ireland. During the many, the Netherlands or New Zealand. The contrast between these two
Oireachtas debates introducing the relevant provisions of the bill in perspectives has developed following the emergence of second-wave
October 2015, Minister for Justice Frances Fitzgerald referred to this feminism and over the decades since, has become described as ‘the
opposition, but stated that she accepted the Justice Committee recom­ most divisive distinction in feminist thinking’ (Kingston, 2014: 10).
mendation for reform. She concluded that ‘there is undoubtedly evi­ Broadly speaking, the ‘exploitation’ approach may be associated
dence of a wider exploitation of persons involved in prostitution outside with radical feminist theory, and the ‘sex work’ approach with liberal
of those trafficked such as those who are coerced or otherwise forced feminist theory. An immense range of academic literature on prostitu­
through circumstances to engage in the activity…’ and she had become tion from both perspectives has been generated over recent decades. As
‘convinced that targeting the exploitation associated with prostitution Phoenix writes, ‘The literature on prostitution is now so voluminous that
requires targeting those who demand these services’ (Oireachtas De­ there are textbooks provided to help students navigate their way
bates, 2015: 242 (6)). through the empirical studies’ (Phoenix, 2017: 200). However, aca­
Other legislators expressed support in similar terms for the new demic discourse on prostitution has become increasingly dominated by
prostitution-related provisions, referring for example to the emergence feminist scholars who challenge the view of prostitution as exploitation,
of an ‘all-island consensus on targeting the exploitative nature of pros­ arguing instead that women exercise agency by engaging in ‘sex work’
titution’; and to the view that ‘prostitution is intrinsically a violation of (M. O’connor, 2017: 8).
human rights’ (Oireachtas Debates, 2015: n.p.). However, the progress Nordic model laws are generally seen as deriving from radical
of the bill, which had begun in the Seanad in October 2015 and even­ feminist theory. In one of the best-known early radical feminist critiques
tually passed there in January 2016 after lengthy debate, was inter­ of prostitution, MacKinnon (1987: 5) described prostitution as a form of
rupted by a change of government following the February 2016 general sexual violence against women, saying that ‘rape, battery, sexual
election. Even following the re-appointment of Justice Minister Fitz­ harassment, … prostitution, and pornography … form a distinctive
gerald, further delay ensued before the Bill resumed in the Dáil (lower pattern: the power of men over women in society.’ Other theorists (for
House of the Oireachtas) in October 2016. There, several TDs (Teachtaí example Barry, 1984; Jeffreys, 1997; Pateman, 1999) have also
Dála or members) expressed opposition to the prostitution provisions considered prostitution to represent ‘the institutionalization of women’s
and put down amendments seeking, for example, to decriminalise dependence on men … therefore exploitative and inherently violent and
brothels. The assertion that the Nordic model had reduced demand oppressive’ (Kingston, 2014: 10).
elsewhere was contested, one TD arguing for example that ‘demand has Thus, radical feminist scholarship ‘perceives prostitution as gender-
not been reduced but rather… displaced and put somewhere… much based violence, a practice that de-humanizes and objectifies women’
more dangerous… for sex workers.’ (Oireachtas Debates, 2016: n.p.). (Segrave et al., 2009: 3). Through research carried out over recent years,
When the bill returned to the Seanad in 2017 for its final stages, simi­ the harms caused to women through prostitution have been well-
larly strong criticism was expressed, with one Opposition Senator documented, and the role of the (predominantly) men who buy sex
positing that. has been scrutinised more closely (for example M. Farley, 2003; M.
Farley, Bindel, & Golding, 2009).
‘the oldest profession will not be suppressed by this’
Coy (2012: 103) refers to the extensive research on harms associated
(Oireachtas Debates, 2017: n.p.) with prostitution, including ‘sexual and physical violence … increased
likelihood of murder… and multiple negative consequences for sexual,
Writing prior to the conclusion of the bill’s passage through the physical and mental health…’. She asserts that ‘prostitution as a gender
Oireachtas, Ward had been strongly critical of the process, describing it regime reproduces gender as a hierarchy … and thus undermines
as a ‘neoabolitionist shoe-in’ (Ward, 2017: 86). However, a careful movements towards gender equality’ and argues that prostitution con­
reading of the Oireachtas debates on the bill over the many months stitutes a gender regime, since it ‘disproportionately involves men
between its introduction and eventual passage shows that robust op­ buying access to women’s bodies’; enables men to exercise power over
position to the prostitution-related provisions was expressed by many women’s bodies; involves emotional labour, ‘minimization of self’; and
legislators, and that these provisions were amended significantly during ultimately reproduces heteronormativity (2012: 4-5).This feminist
the legislative process. perspective has had increased influence in recent years upon policy-
The bill was finally passed in February 2017 as the Criminal Law makers, in moving legal frameworks from the traditional ‘public
(Sexual Offences) Act 2017. The Nordic model is effectively applied nuisance’ view of prostitution to an alternative perspective emphasising
through Part 4, within which section 25 creates a new offence of ‘pay­ the harms it causes to women, particularly in the context of trafficking;
ment etc for sexual activity with prostitute.’ Significantly, while the and the impact of its continued existence upon gender relations in so­
purchase of sex is thus now criminalised, following amendment during ciety (see Banyard, 2016). Sutherland thus concludes (Sutherland, 2004:
debates the offence of soliciting or importuning no longer applies to a 140) that:
person who offers sex for sale – thus effectively decriminalising the
sellers of sex in public (other offences around brothels and pimping were Radical feminists … have had a substantial impact on the develop­
retained). Several other crucial amendments were also made during the ment and adoption of anti-trafficking legislation and instruments in
Oireachtas process; notably an amendment requiring a review of the various countries and at the international level.
new law after three years under section 27 of the Act; this ongoing re­
By contrast to this international momentum for an ‘equality
view, while not yet concluded, has generated significant literature and
approach’ among legislators, within academic writing an alternative
research findings (see Breslin, 2020; O’Connor and Breslin, 2020;
‘sex work’ perspective on prostitution has become dominant, with a
Shannon, 2020, discussed further below).

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clear marginalisation of the radical feminist perspective and an legislators referred specifically to the broader context of intersectional
emphasis upon the importance of prioritising individual agency over inequality and exploitation within which prostitution occurs.
social or economic context. Many of its advocates take an explicitly While some of those opposed to the reform expressed genuine con­
standpointist position, arguing that they represent the voices of those cerns about increased risk of harm to sex workers under Nordic model
engaged in prostitution (eg Nagle, 1997). ‘Sex work’ proponents also laws, its proponents argued that the sex trade is inherently risky,
emphasise the centrality of women’s agency in arguing that women may particularly given the proven strong links with organised crime and
make an informed ‘rational choice’ to work in prostitution; Sanders et al. coercive pimping practices, and the well-documented harms caused to
(2009: 9), for example suggest that: women through prostitution itself; along with the evidence that most of
those engaged in prostitution are women drawn from disadvantaged
The backlash against radical feminist ideas centres on the notion that
migrant communities who have few other ‘choices’ for economic sur­
by constructing women involved in prostitution as only ‘victims’, the
vival. The reform proponents also noted that the sellers of sex are
objects of male oppression and passive in their own lives, the
themselves decriminalised under the Nordic model, and that sex ban
‘agency’ of women is denied. This argument about ‘agency’ essen­
laws should be accompanied by well-resourced provision of social sup­
tially refers to women’s free will and their ability to make decisions
ports to enable exit from prostitution.
about their circumstances and how they use their bodies.

As previously indicated, the moral agency argument has a powerful 5. Critiques of Irish prostitution law reform
resonance for many feminists, with obvious parallels for debates on
reproductive rights and bodily autonomy – debates which have recently It is unsurprising, however, given the highly polarised nature of ac­
been very significant in an Irish context, around the constitutional ref­ ademic debate on prostitution, that markedly different analyses of the
erendum held in 2018 to legalise abortion. Many feminist scholars ex­ 2017 reform have been offered in academic and policy discourse. Wylie
press a real concern that the ‘exploitation’ model can lead to a and Ward have both been particularly critical of the new law, taking a
paternalistic approach which denies women autonomy. Scoular and similar view to Weitzer in arguing (Wylie, 2016; Ward, 2017) that
O’Neill for example (Scoular & O’neill, 2008: 25) argue that radical ‘neoabolitionism’ generally has arisen from a convergence between
feminist theory has created a rhetoric around the victimhood of women radical feminism and state or religious interests, based upon an ‘unlikely
who sell sex; whereas in reality, ‘women who sell sex do not always collaboration of feminism and fundamentalism’ (2017: 3). In the context
experience themselves as victims.’ of the reform in Northern Ireland, Graham Ellison (Ellison, 2017: 2010-
Those who advocate a ‘sex work’ approach also tend to be highly 11) has similarly asserted that.
critical of what they describe as the ‘abolitionism’ of the radical feminist
for some religious fundamentalists in Northern Ireland the debate
perspective, favouring instead a harm reduction policy of decriminal­
about prostitution is really a debate about moral turpitude, uncon­
isation and improved conditions for those engaged in prostitution
trolled sexuality and idealized femininity that in turn link to a
(UNAIDS, 2011). They argue that sex purchase ban laws may cause
broader sense of anxiety around the nature of social change and
increased risk of harm to sex workers, based on some evidence that
societal liberalism.
prices for sex tend to reduce under such laws (ironically, showing that
the laws are having an effect on the extent of demand by clients); and The reform has also been critiqued for failing to recognise women’s
that women who sell sex are more likely to take greater risks under such agency or to protect those engaged in prostitution from harm; Ward
laws, and therefore more likely to suffer harm as a result. (2017: 99) asserts that it represents a ‘move to deny consent to all sex
Thus they suggest that harm reduction models are preferable for workers as a group, as a principle of law.’ Similarly, Mcgarry and Fitz­
those engaged in prostitution, whereas ‘abolitionism’ is oppositional to gerald (2017: 289) argue that Irish ‘neoabolitionist discourse’ has
their interests, and is instead presented as representing an alliance be­ operated ‘through gendered and racialized assumptions about sex
tween radical feminists and religious conservatives. Ronald Weitzer workers and migrant women’ and has mis-framed and misrepresented
(2010: 61), for example, refers to the emergence of ‘a powerful moral ‘sex-working women’. David Ryan (2017: 12) has argued that decrimi­
crusade’ which has ‘advocated a strict abolitionist orientation towards nalisation would instead represent ‘the most viable chance of practically
all forms of commercialized sex, … increasingly conflated with sex addressing the needs of sex workers and developing the systems in
trafficking’ and suggests that ‘right-wing political and religious forces’ which their safety can be better protected’. Tom O’Malley has been
are ‘the dominant forces in the anti-trafficking, abolitionist crusade’ in similarly critical, suggesting (T. O’malley, 2017: 88) that the ‘unilateral
the US (2010: 83-4). prohibition on the purchase of sex may well be challenged on consti­
This hypothesis is difficult to reconcile with the political reality that tutional or human rights grounds… the problem with the Swedish
applied in the Swedish context – or more recently in the background to approach now adopted in Irish legislation is that it appears to presume
the Irish law reform. Skilbrei and Holmstrom (2013: 138) write that the conclusively that everyone who engages in sex work does so unwillingly
Swedish law introduced in 1999 was explicitly based on a theoretical or, at any rate, for reasons largely beyond his or her control.’
approach seeing prostitution as a feature of gender inequality in society. These critiques are challenged however by Monica O’Connor, who
In her analysis of the process through which the Swedish law reform was uses a continuum concept to describe how choice, agency and coercion
carried out, Yvonne Svanstrom (2004: 225) says that a unique feature of can co-exist for women within prostitution, so that ‘consent’ is effec­
the Swedish reform process was the early emergence of a consensus tively compromised, as it may be for women experiencing domestic
among feminist activists and political actors as to the appropriate violence. Based on her own empirical work carried out in Ireland,
theoretical and legal model on which prostitution law reform should be O’Connor argues (M. O’connor, 2017: 15) that women’s own accounts
based; ‘there was more or less unanimous support among the feminists in of the lived experience of prostitution sex contribute to recognition of
the established political parties for seeing prostitution as patriarchal the ‘coercive context in which consent is given and obtained in prosti­
oppression of women.’ tution’ and of ‘the importance of differentiating between adult consen­
Similarly, in Ireland, a reading of the parliamentary debates on the sual sex, implying mutual, desired sex and prostitution sex described by
2017 law reform confirms that the motivation of those legislators who women in [her] study which is better defined as buyers gaining acqui­
argued in its favour was not derived from religious conservatism, but escence to commit unwanted sexual acts’. O’Connor concludes (2019:
rather based upon recognition of prostitution as a manifestation of 108) that.
gender inequality and as exploitative of and causative of harm to the
A core demand of feminism has always been women’s right to bodily
marginalised, notably women drawn from migrant communities; many
autonomy and sexual integrity. It is difficult to sustain the sexual

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I. Bacik Women’s Studies International Forum 86 (2021) 102457

liberal argument that prostitution sex does not violate those rights trade, Breslin (2020: 38) has found that the pandemic has ‘brought into
when listening to the voices of women in prostitution and examining very sharp relief the harmful and abusive nature of the Irish sex trade…
the evidence of immense harm they are subjected to…. Populated in the main by vulnerable migrant women, their vulnerabil­
ities and the levels of danger and isolation they face within the trade
This analysis, proffered by one of the leading civil society advocates
were heightened even further by this global crisis.’
for the 2017 reform, provides support for the contention that, like the
While a fuller evaluation of the implementation of the new legisla­
Swedish law reform, it is best seen as part of an international feminist
tion has yet to be concluded, feminist debates on prostitution law have
movement for change based on recognition of harm caused to women
become so polarised that every assertion made about the impact of the
through prostitution, rather than as the product of particular conser­
2017 law in Ireland is likely to be contested. Yet it is important that any
vative or religious ideologies.’ Indeed, writing after the initial intro­
critique would seek a balanced approach, taking account of the national
duction of the 2015 bill but before the final passage of the legislation,
context for adoption of the Swedish approach. As McMenzie et al. sug­
Banyard (2016: 230) specifically portrays the Irish reform process as an
gest in their examination of prostitution law in Northern Ireland
example of the way in which the growing international feminist move­
(Mcmenzie, Cook, & Laing, 2019: 1212),
ment to criminalise sex purchase is having an impact on legal change.
Support for the 2017 reform as an example of progressive feminist while the Swedish model is often presented as being a coherent
law-making based on a re-consideration of consent is also evident from package ‘made in Sweden’, it has actually been transformed on its
other sources. Beegan and Moran (2017: 72) conclude that the new law travels, adapted to local contexts and brought into wider assem­
‘targets demand, challenges society’s attitudes to men’s violence against blages when it ‘lands’.
women and sends a clear message that the body cannot be sold, bought
Undoubtedly, there is a distinctive national Irish ‘flavour’ to the
or violated.’ Similar acknowledgement is provided in a recent EU-
2017 law reform. Many of its proposers and advocates relied upon
funded comparative report, commissioned by the Immigrant Council
feminist equality-based arguments, but broader concerns around social
of Ireland, in which the Irish law reform is described (Immigrant Council
justice were also expressed by key supporters. Throughout the lengthy
of Ireland, 2018: 29) as being ‘underpinned by principles of gender
parliamentary processes leading to the reform, the Minister and other
equality and human rights …
legislators expressly referred to the bill’s purpose in seeking to tackle
More recently, new research emerging in an Irish context has pro­
exploitation of women, particularly migrant women, in situations where
vided strong evidence and arguments to support the feminist case for the
their apparent consent was compromised by the structural disadvan­
2017 reform. Based on her empirical study analysing the discourse of sex
tages and discriminations that they were experiencing. The NGOs signed
buyers on Irish and UK websites, Senent Julian (2019: 123) found ‘ev­
up to the TORL campaign had long experience on intersectional human
idence from the buyers themselves supporting the claims made by anti-
rights and feminist issues, with noteworthy support from the trade union
prostitution researchers and survivors according to which it is a
movement. Many of these NGOs and supportive legislators like Minister
degrading and violent practice.’ She concluded (2019: 124) that.
Fitzgerald had taken prominent stances in support of LGBT and feminist
Despite a deliberate, strategical co-optation of feminist terms, the campaigns, and against Catholic Church teaching, in the context of
aims and interests of the pro-prostitution lobby are intrinsically anti- constitutional referendums in 2015 on marriage equality and 2018 on
feminist… its roots are firmly entrenched in socially and economi­ abortion rights.
cally non-egalitarian, gendered conditions and, as our analysis While the relevance of positions taken by individual political actors
revealed, it tells men they can buy a self-coerced, subservient role of on different policy issues may be questioned by advocates of the ‘sex
women and potentially enact traditional gender roles without being work’ approach who see the Nordic model as inherently conservative in
effectively challenged. denying women’s moral agency, nonetheless the available evidence
confirms De Marneffe’s argument (De Marneffe, 2010: 155) that the
Moreover, in an interim report commissioned by the Irish govern­
‘most active opponents of prostitution and its legalisation today… are
ment into the implementation of the legislation mid-way through the
left-leaning feminists who see prostitution as a form of violence against
three year statutory review period (Shannon, 2020), a positive view was
women; they are not sexual traditionalists or religious conservatives’.
also provided of the “equality’ approach’ adopted in 2017. Shannon
He contrasts the pro-Nordic model movement with the ‘libertarian’
noted the need to put in place a range of measures beyond the criminal
perspective opposing laws which limit individual liberty to reduce harm;
law to tackle demand for prostitution, in finding that only three con­
and he explicitly recognizes the broader context for the exercise of
victions for purchase of sexual services had been recorded by December
agency in prostitution, in arguing that ‘paternalistic’ prostitution laws
2019.
may be justified by progressives in order to protect individuals from
Further research published in the context of the review (O’Connor
harm. In support of this argument, he points to the extensive evidence of
and Breslin, 2020), also emphasised the need to develop exit strategies
harms caused to women through engaging in prostitution and the
to support women in leaving the sex trade. This report confirmed the
disproportionate extent to which marginalised women are engaged in
high levels of migrant women engaged in the indoor sex trade (94% of
selling sex.
their sample), who face the ‘constant risk of violence from a variety of
In Ireland as in other developed countries, it is well-established that
sources’ (2020: 74). They found however that the introduction of the
those in prostitution are predominantly drawn from severely disad­
2017 law had not caused any surge in violence against those in prosti­
vantaged migrant communities (see for example M. O’connor & Breslin,
tution, despite claims to the contrary by some opponents of the legis­
2020). Recognition of this real context, particularly the reality that
lation (see for example SWAI, 2019).
many of those engaged in prostitution have been trafficked or brought
O’Connor and Breslin cite updated police data showing that while
into wealthier countries from less-developed countries, lies behind the
only 10 incidents of the new 2017 sex purchase offence were recorded
international momentum among policy-makers towards the Nordic
by Gardaí (police) in 2018, a greatly increased figure of 92 such in­
equality model.
cidents was recorded in 2019 (2020: 77). Increased commitment to
enforcement was also demonstrated by the taking of targeted ‘days of
6. Insights from the #MeToo movement
action’ by police over 2018–19, resulting in almost 100 sex buyers being
stopped and questioned under Part 4 of the Act (2020: 81); although
Feminist advocates for the Nordic model across different jurisdic­
since then the outbreak of the Covid-19 pandemic has temporarily
tions understand that its theoretical justification lies in a re-
halted enforcement measures.
consideration of consent, and an understanding that in certain
Most recently, examining the impact of Covid-19 on Ireland’s sex

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I. Bacik Women’s Studies International Forum 86 (2021) 102457

contexts, particularly in situations of structured gender and intersec­ that it might universalise all heterosexual intercourse as coercive in
tional disadvantage (such as the Irish context, within which migrant conditions of general gender inequality, conceivably conflating a level of
women are vastly over-represented in prostitution), consent may be coercion that might justifiably be tolerated legally with a level that is
compromised and cannot be characterised as ‘freely and voluntarily’ appropriately criminalised. Robin West, while acknowledging (R. West,
given. 2005: 452) the importance of MacKinnon’s work in establishing that
This understanding is already well-accepted in the context of work­ ‘non-consensual, as well as consensual but unwanted sex has under­
place sexual harassment. Clear parallels may thus be drawn between the mined women’s quest for equality, liberty, and human dignity,’ con­
Nordic model or equality approach to prostitution, and the #MeToo tends thus (2005: 448) that ‘[u]nwelcome sex is often, perhaps even very
movement. As Farley points out (Farley, 2018: 2), ‘sexual harassment is often, non-consensual; when it is so, it is indeed rape. But unwelcome
what prostitution is. If you remove the sexual harassment (and) un­ sex is not always non-consensual; thus, it is not always rape.’ She sug­
wanted sex acts, there is no prostitution. If you eliminate paid rape, gests more tentatively (2005: 456) that consensual unwanted sex ‘ought
there is no prostitution.’ Farley’s argument recognizes that bought to indeed be criticized and, if objectively (and convincingly) harmful,
consent cannot equate to consent freely given in law. To argue otherwise should be the predicate for legal recourse.’ More recently, in a sub­
is to ignore the real lived experiences of survivors of prostitution, and stantive reflection on legal conceptions of consent, West has concluded
the documented harms caused to women through engaging in that while ‘commodified sex’ engaged in as a trade may be described as
prostitution. ‘consensual’, it is both unwelcome and unwanted, and likely to cause
Writing in this journal, Hu et al have argued that the narrative of the ‘harms to physical, psychic and moral integrity’. (R. West, 2020: 27).
global #MeToo movement has effectively served to reconstruct ‘the Even applying West’s modified approach, MacKinnon’s critique of
cultural intelligibility of female subjects’ (Hu, Mu, & Huang, 2020: 1). consent-based sex crime laws exposes the limitations of the individual-
Conversely, Yacoub (2019) suggests that ‘consensual sex work does not agency based arguments made against the Nordic model. The domi­
necessarily deprive sex workers of their inherent human dignity and nance of this individualist perspective within academic discourse may
autonomy, and thus does not deprive them of their basic human rights’. be attributed to a marked shift towards a ‘libertarian’ perspective in
Yacoub is careful to limit the argument to ‘consensual sex work’, without academic scholarship. Sylvia Walby has identified this (S. Walby, 2011:
interrogating this concept. Yet, from another perspective, this phrase 23) as a ‘neoliberal’ turn in the academy – ‘a shift in intellectual enquiry
makes no more sense in law than the phrase ‘consensual sexual about systems of power to that of agency … [which] functions in
harassment’. Laws which enable the buying of consent necessarily un­ practice towards deflecting analytic interest away from the powerful
dermine laws which penalise ‘non-consensual’ sex. and from systems of power.’ She suggests (S. Walby, 2011: 19–20) that
The #MeToo movement has established that consent is compromised the celebration of individual agency within contemporary third-wave
when sexual harassment occurs within a corporate office or work setting feminist writing effectively masks the way in which commercialized
(as in the Harvey Weinstein scenario); consent that is bought in a brothel sexuality represents a new form of control over women.
or on a street corner should also be seen as compromised in the same What unites those arguing for legal prostitution or ‘sex work’ is at its
way. It seems extraordinary, from a feminist perspective, that activists core an individualised understanding of consent and choice, divorced
running ‘consent workshops’ on campus cannot see the contradiction from its context. Many of the ‘standpoint’ arguments made in favour of
between their emphasis on the need for mutual agreement in their own legalising prostitution derive from a view that sex workers should
sexual relationships; and their argument that the ‘dignity’ of ‘sex essentially be free to trade in the market; a classic liberal or libertarian
workers’ in selling consent must be respected in law. perspective; Sibley (2018: 1475) for example comments that ‘sex work
This fundamental contradiction is recognised in Catharine MacK­ advocates are adamant about positioning the sex worker subject as
innon’s proposals for a radical re-consideration of consent-based laws. entrepreneurial in nature’.
She asserts that ‘consent’ is a flawed standard upon which to base rape Those who seek to tackle demand, by contrast, see the choices made
law, ‘an inherently unequal concept ’ (2016: 431). She posits that rape, and consents given by the majority of those engaged in prostitution
like sexual harassment, should be viewed as a crime of gender inequality within a broader context of profound intersectional inequalities based
because the concept of consent is ‘inconsistent with equality’; it implies on gender, class and ethnicity; Moran (2013) and other survivors pro­
subordination, and is antithetical to the concept of mutuality which is vide a graphic account of the coercive context within which ‘consent’ is
the basis for real sex (2016: 451). given in prostituted sex. Within this context, as within a workplace hi­
MacKinnon’s re-conception of consent is framed in the context of erarchy, consent may be seen as compromised. The sex in this context is
structural inequalities; it has brought about fundamental changes in not wanted, desired or mutual sex – and may be the predicate for legal
sexual harassment law. Employers and harassers now have no defence recourse. This contextual view of consent in the workplace – the
against a claim of sexual harassment in the workplace based on apparent recognition that ‘it’s not just sex’ – should inform the view of consent in
‘consent’ given by the employee harassed; we understand that consent the commercial sex trade too.
may be compromised by its power context. And this understanding can Prostituted sex is ‘not just sex’; it’s not mutual sex, and ‘consent’
have profound implications for prostitution law and policy, as MacK­ given by the bought party is not agreed ‘freely and voluntarily’ - as
innon argues: required by the new statutory definition of consent in section 48 of the
same Act which prohibits the purchase of sex. As noted above, the
Prostituted sex… is considered consensual because it is paid. In fact,
campaign to introduce section 48 was based upon the frustration
women are disproportionately bought and sold in prostitution by
experienced by feminist activists over difficulties with securing con­
men as a cornerstone of combined economic, racial, age-based, and
victions for rape due to lack of clarity, typically among jurors, on the
gendered inequality, in which money functions as a form of force in
legal meaning of ‘consent.’ The language in the section is based upon
sex….layers of inequality [are] involved in this technically consen­
that used in similar legislation in other jurisdictions, generally intro­
sual sexual activity…’
duced following campaigns by rape crisis centres and feminists. These
(C. Mackinnon, 2016: 447–8) statutory formulations offer a means to address MacKinnon’s feminist
critique of consent as a standard for sexual activity. As West writes (R.
By contrast, she writes approvingly that the Swedish model ‘breaks West, 2020: 18), new understandings about consent in the context of sex
through this vacuum boundary by recognizing that sex under conditions offence laws represent ‘a significant gain in women’s civil rights’
of inequality … a transaction between someone who pays and someone because they challenge traditional patriarchal legal norms. However,
who is paid – is unequal sex….’ (C. Mackinnon, 2016: 474). she argues (R. West, 2020: 21) that the problem with over-reliance on
MacKinnon’s argument has been subject to critique by some who say the ‘ethic of consent’ as a legal standard is that it can wrongly legitimate

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I. Bacik Women’s Studies International Forum 86 (2021) 102457

all apparently consensual sex; even sex that is not desired, that is un­ Farley, M. (2018), ‘#MeToo must include prostitution’ 3(1) Dignity: A Journal on Sexual
Exploitation and Violence, 2.
wanted and unwelcome, and ultimately harmful to women.The ‘indi­
Farley, M., Bindel, J., & Golding, J. (2009). Men who buy sex: Who they buy and what they
vidual agency’ arguments put forward by those opposed to the Nordic know. London and Prostitution Research and Education: EAVES.
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libertarian theoretical framework in wrongly legitimating sex that is Gallagher, C. (2018), ‘Inside court 12: The complete story of the Belfast rape trial’, The
Irish Times, 28 March 2018.
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cial, economic and structural contexts within which individual choices The Irish Times, 13 September 2018.
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Huschke, S. and Ward, E. (2017), ‘Stopping the traffic? The problem of evidence and
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