Contra bonos mores and the sex purchase ban in Norway
In a recent case, a Norwegian court used the 2009 sex purchase act as a ground for denying a prostituted woman compensation for income losses after having been assaulted by a prospective client, writes Dagbladet.
A year after it went into force, the effects of the Norwegian sex purchase ban are still debated. Newspapers report that prostitution has not ended, but rather taken different, less overt forms, and prostitutes claim that they are now forced to accept a less reliable clientele. Some even report that the sex trade is back in the streets of Oslo, albeit marketed less aggressively than before. However, the number of clients purchasing sex has decreased in Norway, claims Astri Aas-Hansen, State Secretary of the Department of Justice in an interview with Aftenposten.
But the ban has also had some rather unexpected and, presumably, unintended consequences, as a recent court case illustrates.
In October 2008, a woman was assaulted by a prospective client in downtown Oslo. As she could not work for several months due to the injuries inflicted on her, she sued the perpetrator for 100,000 NOK to compensate for her lost income.
Oslo District Court sentenced the man to two years in prison (which included the remainder of a previous prison sentence for rape in 2006) and to pay the woman 30,000 NOK in reparation for her injuries, but rejected the woman’s claim for compensation for income loss.
The woman appealed to the regional appeal court, and while the appeal court raised her reparation for injuries to 50,000, it rejected her claims for compensation – interestingly, referring in its decision to the law prohibiting the purchase of sexual services.
Borgarting Lagmannsrett, Norway’s biggest appeal court, based in Oslo, argued that while prostitution is not prohibited by Norwegian law, it is an activity which society considers unwanted, since the purchase of sexual services was criminalised as of 2009:
“This [the sex purchase law] clearly shows that society regards prostitution as an unwanted activity,” the court writes in its sentence, according to Norwegian daily Dagbladet.1 The court thus considers contracting to buy or sell sexual services as violating decency – more or less as contra bonos mores. Hence, such contracts are not legally binding or enforceable:
“Such contracts are not binding on the parties and cannot be enforced with the Court’s assistance. When the contracting parties’ rights have no legal protection, and one party’s condition moreover is considered a punishable condition, there would, in the Court’s view, be little consistency in the law, if the prostitute’s revenue would still be safeguarded by tort law rules.”2
While the Appeal Court referred to three similar cases, including one from the same court, which concluded that income of prostitution is protected by tort law, this is the first case of this kind to be dealt with by Norwegian courts after the sex purchase law took effect in January 2009.
Hence, this case indicates how a law can take on a life of its own. While the Norwegian sex purchase act was passed for partly different reasons than Sweden’s similar law a decade earlier, feminist arguments played an important role in both policy settings: Proponents of prohibiting the purchase of sexual services suggested that penalising the clients rather than the prostitutes was an appropriate expression of the notion that buying sex is unacceptable behaviour in a society striving for gender equality. However, once it is in effect, an act passed for noble reasons may serve quite different purposes — and target other people and other acts than those for which it was originally intended. In this case, it seems that the sex purchase act can fill a role similar to decency laws prohibiting prostitution in the old days.