Q&A: We live within a violent system: Structural violence against sex workers in Ireland report

The consensual exchange of sexual services between adults for some form of remuneration – money or goods – with the terms agreed between the seller and the buyer.

The terms “sex work” and “prostitution” are sometimes used interchangeably. Many sex workers feel the term “prostitute” is demeaning and organised sex worker groups generally prefer the term “sex worker” or “person in the sex industry”. Others utilise the term “prostitution” to reclaim and/or destigmatise the term and practice. Amnesty International uses the term ‘sex work’. 

The removal of all laws and policies that make sex work a criminal offence (such as selling, buying or organising sex work, solicitation, renting premises, “brothel keeping” and living on the proceeds of “prostitution”). It does not refer to decriminalising abuse, coercion, exploitation or trafficking.

Criminalisation refers to the process of prohibiting consensual adult sex work, directly or indirectly, and attaching punishments in law. Criminalization of consensual adult sex work generally takes three different forms which are applied in a variety of combinations across countries.  

These can be summarised as:  

• Laws which make the sale of sex by consenting adults a criminal offence, including for example laws on solicitation, and under which penalties are imposed upon sex workers themselves; 
• Laws which make the organisation of adult consensual sex work a criminal offence. These include, but are not limited to, laws against keeping a brothel; promotion of ‘prostitution’; renting premises for the purposes of ‘prostitution’; living off the proceeds of ‘prostitution’; and facilitating sex work through the provision of information or assistance. These laws can result in the imposition of penalties against sex workers themselves for organising their own sex work and against anyone who assists them, including their families; and
• Laws which make the buying of sex from consenting adults a criminal offence and under which penalties are imposed on buyers.

People of different backgrounds and identities undertake sex work for a variety of reasons. Decisions to sell sex can be influenced by situations of poverty or marginalisation. People interviewed by Amnesty International outlined how their decisions were often based on multiple and intersecting factors including flexibility and control over their working hours. Some sex workers make the decision to engage in sex work as a matter of preference: for some it can offer more flexibility and control over working hours or a higher rate of pay than other options available to them. For example, it may be one of a limited number of sources of earnings open to irregular migrants who are denied permission to work and therefore rely on informal economies for work.

Purchasing sex became a crime in 2017, and the act of soliciting for the purpose selling sex was decriminalised. While selling sex is not a crime, many laws directly or indirectly criminalise the work of sex workers. For instance, if two sex workers work together indoors for safety, they can be charged with ‘brothel-keeping’ and face the threat of legal prosecution.  

Criminalisation reinforces stigma against sex workers. It gives the state and police control over their bodies, sexuality and lives. 

There are no reliable regional or global estimates or data regarding the numbers of people engaged in sex work, predominantly due to the stigmatisation, marginalisation and often criminalisation faced by sex workers. Nevertheless, available estimates indicate that cisgender women account for the majority of the sex worker population, but that transgender and non-binary people, as well as cisgender men – many of whom are gay or bisexual – are also significantly represented among sex workers worldwide.

Amnesty International’s research in Ireland has revealed that sex workers in the country, most of them women, experience a range of human rights abuses. Sex workers interviewed experienced physical attacks and threats, sexual violence, including rape, robberies, stalking, verbal abuse and harassment, mainly from people they meet as clients. These individual experiences are underpinned and facilitated by structural violence, which comprises several systemic factors, for instance, the legal and policy framework, policing practices, gender and economic inequalities and stigma. The report demonstrates that criminalisation of aspects of sex work such as the brothel keeping provision in Irish law impacts on sex workers’ safety by preventing them from working together in one apartment, creating a “chilling effect” on their ability to exercise of their human rights. The ban on buying sex in Ireland and the criminalisation of living on “earnings of prostitution” are also impacting sex workers’ safety and livelihoods. The research also uncovered a profound lack of trust in the police and economic and social rights violations, for example a lack of adequate, affordable and accessible housing options and heightened risk of eviction because landlords can be prosecuted for renting premises to sex workers. For many sex workers, these factors add to the already high levels of intersecting discrimination and stigma they experience, for example on the grounds of race, ethnicity, gender, gender identity, disability, drug use, homelessness or migrant status.

Between 2016 and 2019, Amnesty International’s research in Argentina, the Dominican Republic, Hong Kong, Norway and Papua New Guinea found that sex workers experienced violent attacks, discrimination and injustice and that much of this violence and abuse was unreported, under-investigated and unpunished, with states failing to uphold their obligations towards sex workers. In recent years, worrying information about similar human rights concerns has begun to emerge from Ireland, together with media reports of arrests and convictions of sex workers. The Irish government is currently conducting a review of the operation of Part 4 of the Criminal Law (Sexual Offences) Act 2017, which, for instance, criminalized the purchase of sex. In this context, the in-depth research that informed the report can provide valuable insights into sex workers’ human rights in Ireland, in particular their right to safety and freedom from violence, at a crucial time.

Under this model there is better scope for sex workers’ rights to be protected ̶ whether that be:

• access to healthcare;
• their ability to report crimes to the authorities;
• their ability to organise and work together for increased safety;
• or the comfort of knowing that their family will not be charged for “living off the proceeds” of sex work.

Although decriminalisation is one crucial step to protect sex workers, it is not a panacea for all violations and abuses facing sex workers. For example, even in decriminalised jurisdictions such as New Zealand, transgender sex workers are often still found working on the street as they are excluded from brothels. Similarly, migrant sex workers in New Zealand are vulnerable to violence and exploitation, and have reported to researchers they are afraid to report these violations to the police for fear of deportation. Other steps aiming at addressing discrimination and stigma and ensuring that people’s economic, social and cultural rights are respected, protected and fulfilled are also crucial.

Legalisation is different to decriminalisation and it is not the model we are proposing. Instead of the removal of laws criminalising sex workers, legalisation means the introduction of laws and policies specific to sex work to formally regulate it. Different legal regulatory approaches to sex work pose different implications for human rights. Amnesty International’s policy does not call for “legalisation” that includes the development and enforcement of additional specific laws and policies aimed at regulating sex work, distinct from other employment sectors, such as in the Netherlands or Germany.

Legalisation involves direct state regulation and control of sex work, and in these systems the police are most commonly used to enforce the legal framework, as opposed to protecting sex workers from violence and other crime. Notably, legalisation of sex work does not necessarily permit all types of sex work. For example, legal sex work may be limited to brothels that are subject to licensing restrictions. The regulatory requirements of some legalised systems can mean that many sex workers that operate outside legalised settings, such as on-street locations, are still criminalised and subject to policing and punishment, thus exposing them to human rights violations. This creates a two-tiered system of legal and illegal sex workers.

Trafficking in persons, including into the sex sector, is not the same as sex work. Sex work refers to a consensual exchange of sexual services between adults for some form of remuneration – money or goods – with the terms agreed between the seller and the buyer. Human trafficking is expressly nonconsensual.

The United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking Protocol) was adopted in 2000 and defines trafficking as constituting of three elements:

1. An “action”: that is, the recruitment, transportation, transfer, harboring or receipt of persons;

2. A “means” by which that action is achieved (threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or a position of vulnerability, and the giving or receiving of payments or benefits to achieve consent of a person having control over another person);

and 3. A “purpose” (of the action/means): specifically, exploitation.

All three elements must be present to constitute “trafficking in persons” under the Trafficking Protocol, unless the person concerned is a child.

Human trafficking is a grave human rights abuse and states have an obligation under international human rights law and standards to ensure that it is recognized as a criminal offence. Amnesty International supports the criminalisation of human trafficking and calls on states to guarantee effective legal protections against it. States must investigate, prosecute and bring traffickers to justice and guarantee victims’ right to access to justice and reparation, including with all necessary levels of support. Trafficking victims should not be criminalised. Anti-trafficking responses must not create or exacerbate situations that cause or contribute to trafficking or further undermine the human rights of anyone, especially women and people belonging to other marginalized groups. States should also adopt and implement – in consultation with sex workers, human Amnesty International Q&A www.amnesty.org 3 trafficking victims and others currently or previously involved in commercial sex – effective programmes, laws and policies, to ensure no one is coerced into selling sex and anyone can stop selling sex if they choose.

Decriminalising sex work does not mean removing criminal penalties for trafficking. Trafficking is an abhorrent human rights abuse and states must have laws in place which criminalise trafficking and use them effectively to protect victims and bring traffickers to justice. There is no reliable evidence to suggest that decriminalisation of sex work would encourage human trafficking. On the contrary, criminalisation of sex work can hinder the fight against trafficking as, for example, victims may be reluctant to come forward if they fear the police will take action against them for selling sex. Some research indicates that decriminalisation of sex work may in fact help victims of trafficking and lead to more effective anti-trafficking efforts.

Blanket criminalisation of aspects of sex work such as, for instance, through the brothel keeping provision in Ireland, does not better protect trafficking victims but it endangers sex workers and puts them at an increased risk of violence, as evidenced in this report.

Amnesty International’s report focuses on sex workers as a group that experiences numerous and frequent human rights abuses, including due to marginalization, stigma and lack of protection, with criminalisation exacerbating the risk of abuse and violations. Human trafficking for sexual exploitation and labour is an abhorrent human rights violation and Ireland’s track record on addressing it is concerning. However, the conflation of sex work with human trafficking has been identified, including by sex workers and experts interviewed for this report, as leading to both misconceptions and practical negative impacts on sex workers’ safety. In this research, Amnesty International has intentionally decided to focus on the rights of sex workers as one of the most marginalized and stigmatized groups in our societies.

Gender inequality can have a major influence on cis- and transwomen’s entry into sex work. It should be noted that there are also non-binary and male sex workers – many of whom are gay or bisexual – who experience discrimination and inequality.

There are many personal, social, political and macro-economic drivers of sex work. Economic, social, labour, and immigration policies work – at national, regional, and global levels and together with factors such as intersectional discrimination – to create the conditions in which individuals make decisions about how to earn an income. As such, particularly in contexts where economic and social rights such as adequate and accessible housing are not respected and protected, they may contribute to an individual’s decision to engage in sex work.

The framing of all sex work as a form of violence against women was identified by sex workers and experts interviewed for this report as leading to both misconceptions and practical negative impacts on sex workers’ safety, effectively facilitating the targeting and abuse of sex workers by perpetrators.

Any policies on sex work need to be situated within a realistic understanding of labour, economic, and social policy contexts. States must combat discrimination and harmful gender stereotypes, empower women and other marginalized groups, and ensure that no one lacks viable alternatives for making a living.

Decisions to sell sex can be influenced by situations of poverty and/or marginalization. Such situations do not necessarily undermine or negate a person’s consent. Constrained circumstances do not eliminate an individual’s ability to make decisions about their own life, except under particular circumstances that amount to coercion where an individual faces threats, violence or abuse of authority.

Consent, namely the voluntary and ongoing agreement to engage in a particular sexual activity, does not mean consenting to violence. Rather, sex workers, like everyone else, can change or rescind their consent to have or sell sex at any point and this must be respected by all parties (including clients, potential clients, third parties, police and other law enforcement officials).

Contrary to some misconceptions, sex workers can be raped, just as everyone else. Consent to a particular sexual activity, to have or sell sex can be changed or rescinded at any time. Where consent is not voluntary and ongoing, including when a person’s changed or rescinded consent is not respected, this constitutes rape and is a human rights abuse and must be treated as a criminal offence.

One of the key actions that you can take is to listen to sex workers (such as sex workers we have spoken to in our report), raise awareness of how criminalisation harms sex workers, show solidarity and call on the State to uphold the human rights of sex workers.