Analyzing the Criminalization of Sex Purchasers and the Provision of Immunity in Ireland

By Tatiana V. Kelly
2012, Vol. 4 No. 09 | pg. 1/2 |

In , the Turn Off the Red Light Campaign is currently lobbying for the criminalization of the act of purchasing sex services by imposing a fine and possibly other penalties on individual perpetrators.

The rationale behind the proposal is that in the event of the purchase of sexual services becoming a and, therefore, by encompassing a fear of the criminal label being attached to an individual, it will reduce the demand for such services and ultimately relieve pressure on human trafficking in Ireland more broadly. As current research suggests that the predominant population of buyers belong to the upper classes, it can be argued that the possibility of the publication of their identities in connection with the purchase of sexual services, similar to the Tax Defaulters’ List, can have serious implications on the careers and lives of individuals in general and, therefore, have a strong deterrent effect. The main focus of this research note is to outline the current approaches in relation to immunity or leniency in sentencing for offenders in exchange for information in Ireland. The existence of such provisions in relation to purchases of sex can provide valuable intelligence to the Garda Síochána in the investigation and prosecution of those who organize prostitution (pimps), while at the same time it can allow purchasers in certain circumstances to avoid the stigmatization in connection with the offense by providing cooperation.

A great deal has been said already in relation to the legislative provisions in Sweden in respect of purchasers of sex and to dwell further on this issue in general is outside the scope of this research, but it is worth restating a few points to re-emphasise the importance of such a proposition. Sweden is unique in that it is the first country to pass a law exclusively criminalizing the buyers of commercial sex acts. The Swedish law came into effect in 1999. According to the Swedish , there has been a “dramatic drop in the number of women in street prostitution” and a decrease in the number of men who buy sexual services.1

The Swedish National Criminal Intelligence Service has produced a report, indicating a positive impact of the law criminalizing purchasers of sex on reducing the trafficking of persons. Sweden is no longer considered as an attractive destination for trafficking human beings and working in the sex industry in general. The structure of business is becoming too complex and purchasers are becoming very alert of the consequences of being charged – the law clearly works as a deterrent. As a result of the same, traffickers, pimps and, indeed, prostitutes have turned their eye to other countries such as Denmark, , Holland and Spain where the rules are more relaxed for their business to flourish.

Many express a fear that by criminalizing purchasers of sex, the industry will be dragged further underground. The fact that prostitution and the trafficking are not visible does not mean that Gardaí do not receive information of what is going on. The biggest obstacle for the Garda Síochána is not lack of information, but the lack of resources in the current economic environment to investigate crimes and ensure that the law is effectively enforced and obeyed by the public.

Even though the general public approved the law in Sweden, there is still resistance within the police and the judicial system to punishing the purchasers of sex acts. Sven-Axel Mansson noted that “the effects of male bonding play a part in creating this situation.”2 Their actions can be compromised by the fact that men will be far more likely to identify with the buyers of sex then with its vendors. As a result, a change in attitudes needs to happen in male environments, Mansson underlines.3

The Swedish National Criminal Intelligence Service also observed in its report that the judicial system has had a considerate attitude towards purchasers of sexual services. This attitude has been demonstrated by the fact that summons have been sent to their place of work instead of their home. Such actions indicate a certain sympathy within the judicial system concerning the men that are suspected of purchase of sexual services. This is an unusual consideration that aims at protecting the suspect from social consequences that could be the result of his actions.4 The issue of “bonding” can cause concerns in Ireland too, considering predominantly male population in the above institutions.

Leaving the offense and its effect apart, it should be noted that when it comes to the sentencing stage in this jurisdiction, there can often be a wide variation in the sentences actually imposed with respect to the same crime, depending on the circumstances of the particular case. O’Malley noted that the lack of discretion would cause a considerable injustice to many civil litigants and to virtually everyone accused or convicted of criminal wrongdoing.5 As a result, the greater leniency of sentences in Ireland is evident when compared to some international standards. Furthermore, it would seem that this remains the case even where the Oireachtas has specifically endeavored to legislate against it by imposing a mandatory minimum penalty.

Section 15A Offenses

An example of the provision of leniency in sentencing in Ireland in exchange for information can be seen in Section 27(3)(C) of the Misuse of Drugs Act 1977 in respect of Section 15A offenses. Despite the presence of the mandatory minimum sentence under Section 15A, Section 27(3)(C) of the Act, as amended, does leave an element of discretion to the trial judge to impose a lesser sentence in certain circumstances, one of them is material assistance in the investigation of the offense.6 However, the interpretation of the legislative provisions in Section 27(3)(C) has caused much confusion, especially in cases where the courts have to determine the existence of “exceptional and specific circumstances.”7 On the one hand, the discretionary element of Section 27(3)(C) leads to uncertainty in the area. On the other hand, not to allow such discretion could lead to great injustices.8

Case law suggests that factors such as making a full statement, assistance provided to Gardai in discovering the real suspects and low likelihood that the accused would re-offend are taken into the account by the trial judge. In Renald9, for example, the trial judge imposed the sentence of only five years, despite the legislative provision for the mandatory minimum sentence of ten years. On appeal, the last two years were suspended. The mitigating factors highlighted by the court were, inter alia, the cooperation with the Gardaí and absence of previous convictions. Same factors also resulted in the reduction of sentences below the mandatory minimum in Duffy10 and Hogarty11.

In People (DPP) v Benjamin12, the applicant has been sentenced to 10 years’ imprisonment by the trial judge, who himself certified the case fit for an appeal on the basis that due to the cooperation given by the applicant to the Gardaí, a major drug dealer was apprehended. The CCA reduced the sentence to five years with the final four years being suspended. It is important to note, however, that in all of the above cases the applicants were mere couriers with no involvement in the drug business and, therefore, it can be said that they had a lesser degree of culpability. However, it can be argued that the “one size fits all” approach is not desirable in the area and further clear judicial and legislative guidance may be required.

Despite the above, it should be remembered that the leniency of the sentence can be appealed by the DPP as in the case of People (DPP) v Heffernan.13

There are also a number of non-statutory programs in Ireland which provide immunity to the perpetrator or witness of the crime.

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