Client Criminalisation and Sex Workers' Right to Health

• Date: 01 January 2014
• Author: Wendy Lyon

58

Client Criminalisation and Sex Workers’

Right to Health

WENDY LYON

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

http://www.government.se/sb/d/3926/a/47455 [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

redlight.ie/about/whos-involved/ [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.

oireachtas.ie/parliament/mediazone/pressreleases/name-17366-en.html [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

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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) http://www.hivlawcommission.org/

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), http://www.medecinsdumonde.org/Presse/Communiques-de-

presse/France/Medecins-du-Monde-reclame-l-abrogation-de-la-loi-sur-le-racolage-

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

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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

Covenant on Economic, Social and Cultural Rights, a hard law instrument

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 healthy”17 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

16 International Covenant on Economic, Social and Cultural Rights 1966, art.12

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

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