Client Criminalisation and Sex Workers' Right to Health

Date01 January 2014
AuthorWendy Lyon
Client Criminalisation and Sex Workers’
Right to Health
In recent years, Ireland has seen the emergence of a well-organised campaign
to introduce legislation that criminalises the purchase, but not the sale, of
sexual services. Commonly known as the Swedish model after the country
that pioneered this approach,1 the proposal for client criminalisation has
received support from a wide variety of Irish political parties, trade unions
and non-governmental organisations.2 In June 2013 the Joint Oireachtas
Committee on Justice, Defence and Equality recommended such legislation
as one of a number of proposals aimed at tackling the Irish sex industry.3
But while a domestic consensus has seemingly formed in favour of client
criminalisation, global health and human rights bodies have increasingly taken
a contrary position: that neither party to a commercial sex transaction should
be criminalised, at least where the parties are adults and the exchange takes
place on a voluntary basis. Those who have criticised laws that criminalise
sex workers4 and their clients include the World Health Organization,5 the
1 The offence of purchase of sexual service is dened as obtaining “a casual sexual
relation in return for payment”. Penal Code (Sweden) s.6(11), ofcial translation at [Accessed 20 October 2013]
2 As of writing, the so-called Turn Off the Red Light campaign consisted of 66 civil
society organisations. Turn Off the Red Light, “Who Are We?”, http://www.turnoffthe [Accessed 20 October 2013]
3 Joint Oireachtas Committee on Justice, Defence and Equality, “Joint Committee
recommends law banning the purchase of sexual services” 27 June 2013, http://www. [Accessed 20
October 2013]
4 “The term ‘sex worker’ is used to refer to all adults who sell or exchange sex for money,
goods or services (e.g. transport). It is used to refer to people who sell or exchange sex
even if they do not identify as sex workers, or consider the activity to be ‘work’. The
term is used to refer to sex workers including consenting female, male, and transgender
people who receive money or goods in exchange for sexual services, either regularly or
occasionally. Sex workers include consenting young people who are eighteen years or
older. … The terms ‘prostitution’ and ‘prostitute’ have negative connotations and are
considered by advocates of sex workers to be stigmatizing.” John Godwin, Sex Work
and the Law in Asia and the Pacic: Laws, HIV and human rights in the context of sex
work (Bangkok: United Nations Development Programme, 2012), p.ix
5 World Health Organization, Prevention and treatment of HIV and other sexually
transmitted infections for sex workers in low- and middle-income countries:
Recommendations for a public health approach (Geneva: World Health Organization,
2012), p.16
03 Lyon.indd 58 29/05/2014 10:49
Client Criminalisation and Sex Workers’s Right to Health 59
Global Commission on HIV and the Law,6 Médécins du Monde,7 the United
Nations Special Rapporteur on the Right of Everyone to the Enjoyment of
the Highest Attainable Standard of Physical and Mental Health8 and, in a
2012 joint report, the United Nations Development Programme (UNDP),
the United Nations Population Fund (UNFPA) and the Joint United Nations
Programme on HIV/AIDS (UNAIDS).9
This article will set out the international legal basis for this alternative
consensus among actors in the international health and human rights
sectors. It will argue against client criminalisation from a human rights
perspective, focusing on sex workers’ right to health. After a brief intro-
duction to the right to health in international law, it will set out various
elements of the right to health that are implicated in the proposal to
criminalise sex workers’ clients. Using examples from research in countries
that penalise the purchase of sex—whether directly, as in Sweden, Norway,
Fiji, and parts of the United States, or indirectly through soliciting or
“kerb crawling” laws as in Ireland, Canada and the United Kingdom—it
will show how these laws may jeopardise the health of sex workers in a
number of ways, impairing their right to health under international law.
It will then consider and rebut the argument that client criminalisation
actually promotes the right to health, showing this to rest on unsupportable
ideological assumptions and awed interpretations of human rights law.
Finally, it will briey examine an alternative model—that of New Zealand,
in which neither sex workers nor their clients are criminalised, and sex
work is treated as a form of labour.
The Right to Health in International Law
The right to health is guaranteed by a number of instruments of both hard
and soft law. Hard law includes treaties to which state parties have agreed
to be legally bound under the principle of pacta sunt servanda (“agreements
must be kept”) codied in the Vienna Convention on the Law of Treaties.10
6 Judith Levine, Global Commission on HIV and the Law: Risks, Rights and Health
(United Nations Development Programme, 2012)
resources/report/FinalReport-Risks,Rights&Health-EN.pdf [Accessed 25 October
2013] p.38
7 Médecins du Monde, “Médecins du Monde réclame l’abrogation de la loi sur le racolage
public” (March 2013),
public [Accessed 20 October 2013]
8 Human Rights Council, Report of the Special Rapporteur on the right of everyone
to the enjoyment of the highest attainable standard of physical and mental health,
Anand Grover (UN document A/HRC/14/20, 27 April 2010) para.50
9 Godwin, supra note 4, pp.23, 36
10 Vienna Convention on the Law of Treaties 1969, art.26. The binding nature of a
treaty should not be confused with its enforceability: the duty of compliance under
03 Lyon.indd 59 29/05/2014 10:49
60  
Soft law may be dened as “nonbinding rules or instruments that interpret
or inform our understanding of binding legal rules or represent promises
that in turn create expectations about future conduct.”11 While soft law
instruments create no obligations of their own, they may reect a consensus
on the meaning of those already found in treaty law, or may serve as
evidence of an opinio juris (acceptance of legal obligation) ultimately
leading to the emergence of customary rules.12 Customary rules themselves
are a form of hard law, as they are “normally binding upon all members of
the world community.13
The Constitution of the World Health Organization (WHO), a soft law
instrument, denes health as “a state of complete physical, mental and social
well-being and not merely the absence of disease or inrmity.14 It then goes
on to dene the right to health as the “enjoyment of the highest attainable
standard of health…without distinction of race, religion, political belief,
economic or social condition.”15 In this formulation, the right to health is
the right to be as healthy as one can possibly be.
While the WHO Constitution does not have binding power, its inuence
can be seen on the framing of the right to health in the International
ratied by Ireland in 1989. Article 12 of the Covenant guarantees “the
right of everyone to the enjoyment of the highest attainable standard of
physical and mental health.”16 This was subsequently expanded on by
the Committee on Economic, Social and Cultural Rights, the Covenant’s
monitoring body. In its General Comment 14 on the Right to Health,
the Committee interpreted Article 12 not as “a right to be healthy17 but
rather as “an inclusive right extending … to the underlying determinants
of health,” including, inter alia, “healthy occupational and environmental
conditions.”18 States parties to the Covenant are therefore obliged,
according to the Committee, to “undertake actions that create, maintain
the Vienna Convention exists in the international sphere irrespective of the treaty’s
status in domestic law, or the mechanisms available to enforce it. See the judgment
of Fennelly J in Kavanagh v Governor of Mountjoy Prison [2002] I.E.S.C. 13 at 43
(acknowledging that an agreement may be binding in international law without a
corresponding domestic obligation).
11 Andrew T. Guzman and Timothy L. Meyer, “International Soft Law” (2010) 2(1)
Journal of Legal Analysis 171, p.174
12 Dinah Shelton, “Normative Hierarchy in International Law” (2006) 100(2) American
Journal of International Law 291, p.320
13 Antonio Cassese, International Law, 2nd edn (Oxford: Oxford University Press,
2005), p.157
14 Constitution of the World Health Organization 1946, Preamble
15 Ibid
17 Committee on Economic, Social and Cultural Rights, General Comment No. 14, the
right to the highest attainable standard of health (UN document E/C.12/2000/4, 11
August 2000) para.8
18 Ibid, para.11
03 Lyon.indd 60 29/05/2014 10:49

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT