Judge seeks constitutional review of law that criminalizes prostitution

Posted on : 2013-01-11 15:12 KST Modified on : 2019-10-19 20:29 KST
Review request has reignited debate over the legalization of commercial sex work
 an area that was once a large red light district. Citizens pass by after a police crackdown in May 2011. (by Shin So-young
an area that was once a large red light district. Citizens pass by after a police crackdown in May 2011. (by Shin So-young

By Park Hyun-chul and Choi Yu-bin, staff reporters

The debate over the 2004 Special Law on Prostitution is heating up once again after a court requested a constitutionality review on its provisions that punish women for sex work.

Though there is widespread agreement that the punishments on women selling sex should be eliminated, different camps are offering very different rationales. Legal scholars welcomed the review request, which echoes their own belief about a minimal state presence in private issues. But feminists are concerned that an unconstitutionality ruling could lead to the full-scale legalization of prostitution. The debate looks poised to rage on while the Constitutional Court deliberates over its review.

Recognize women’s right to self-determination

The constitutionality review request from Oh Won-chan, criminal law judge at Seoul Northern District Court, starts from the premise that barring any coercion or exploitation, sex work falls within an individual’s self-determination rights. The argument is that adults have the right to engage in consensual sex acts and the state should not interfere.

The basis for self-determination rights lies in the Constitution. Article 10 reads, “All citizens shall be assured of their human worth and dignity and shall have the right to pursue happiness. It shall be the duty of the State to confirm and guarantee the fundamental and inviolable human rights of individuals.”

Han Sang-hee, a professor at the Konkuk University law school, said the court’s request could end up being a historic ruling in establishing the concept that women have the right to control their own bodies.

“The policy approach to sex work in South Korea has centered on regulation [punishment], viewing it simply as an ‘evil,’” he explained. “The significance of this constitutionality review request is that it positions sex work as a matter of women’s rights and provides a starting point for a debate on expanding women’s rights to self-determination.”

Hoh Il-tae, a professor at Dong-A University law school, said the law should avoid stepping into moral issues as much as possible.

“Criminal punishment should be a last resort,” he said. “The state needs to refrain from interfering in personal matters that do not involve sexual acts with minors.”

According to Hoh, the responsibility of the state is to “monitor, protect, and/or provide appropriate education for the women who engage in sex work to earn money and the men who purchase their services.”

These arguments from legal scholars are similar to those used against the crimes of adultery and engaging in sexual intercourse under false pretense of intended marriage. The Constitutional Court found the latter crime unconstitutional in 2009, arguing that it denied an adult’s right to sexual self-determination and violated privacy rights and saying that the state should “be prevented from involving itself in [people’s] sexual behavior.”

The crime of adultery narrowly missed an unconstitutionality ruling in [year], falling one short of the required six votes in favor.

Is sex work really a decision you make by yourself?

Critics say the history and present reality of sex work show that it cannot ruly be seen as a matter of self-determination. The argument is that it cannot be viewed as a voluntary decision when women feel compelled to sell their bodies to earn money because of their low socioeconomic status.

A statement Thursday by the group National Alliance to Solve the Problem of Prostitution lambasted the court for its review request, saying that it “ignores the tremendous scale of exploitation in the sex industry, the human rights infringements against women, the social stigma that women who sell sexual services endure, and the reality of the low socieconomic status of women with limited freedom to choose.”

It went on to say the court’s ruling “fails to properly address the sociocultural issue of prostitution, confusing it with [fully voluntary] sexual behavior between individuals.”

Lee Na-young, a sociology professor at Chung-Ang University, agreed about the lack of true freedom to choose. “It is difficult to have total self-determination when women’s socioeconomic choices are still so narrow,” she said.

Possibility of backfiring?

Some observers advised caution about repealing the punishments, arguing that it could lead to the general legalization of sex work.

Cho Bae-sook, an attorney who initially proposed the Special Act as a lawmaker in 2004, warned of the possible consequences of an unconstitutionality ruling.

“It’s being argued that [sex work] is voluntary, but most of the women engaged in it are living under exploitive conditions at the very bottom of the food chain,” Cho said. “If [sex work] is legalized at a time when variant forms of commercial sex are still so rampant, then the structure of sexual exploitation could become more entrenched, and the sex industry could end up growing even larger.”

Lee Na-young argued that South Korea’s laws, while generally strict, are not always enforced.

“South Korea is becoming tarnished with the reputation of being a sex work exporter,” she said. “And if prostitution is legalized, women may become involved with international organized crime. There have been reports about the sex industry actually growing in countries like Australia that have legalized prostitution.”

A matter of urgency

According to National Police Agency statistics, the number of people arrested for violating the Special Law has been dropping in recent years. Since peaking at 73,008 in 2009, it has fallen to 31,247 in 2010, 26,136 in 2011, and 21,123 in 2012.

But this should not be taken as a sign that prostitution has decreased. According to a 2010 investigation by the Ministry of Gender Equality and Family, there were 4,917 women working in 45 neighborhoods of high-density sex work activity around the country, but fully 137,331 working for brokers such as bars that also made sexual services available. So-called “kissing rooms” and online solicitation are nearly impossible to detect. According to a ministry report released on Jan. 10, 2012, those who had been arrested on commercial sex charges found an even greater number of new “business models.”

The ministry’s human rights protection and inspection team teamed up for a crackdown in which 236 people at 63 businesses were arrested for violating the Special Law. This was up more than 90% from the 33 businesses targeted in a 2011 crackdown, and the number of arrestees was up 30% from 181 the year before. The types of businesses were also more varied, including so-called “lip cafes,” “adult PC rooms,” and “image clubs” that were not detected in 2011. Fifteen businesses were found operating out of “officetels” (combined residential-commercial apartment buildings), up three times from the year before.

Signs of this diversification have been evident for the past two to three years. A 2010 ministry report on prostitution estimated the industry’s total scale at 6,626.7 billion won (US$6.3 billion) per year - over five times larger than movie ticket sales. Some 255 billion won (US$241 million) of this, or 3.9%, came from so-called variant forms such as “men’s lounges” and kissing rooms. Another 391.3 billion won (US$369.7 million), or 5.9%, came from transactions arranged online through internet chat services and other means. Taken together, they far exceeded the 576.5 billion won (US$544.7 million; 8.7%) scale of the “traditional” sex industry found in red-light districts.

The biggest portion of the total came from what were called “sex work brokerage businesses,” which included massage parlors as well as bars that arrange services for their customers. These businesses took in 5,403.0 billion won (US$5.1 billion), or 81.6% of the total.

Both sides on the constitutionality issue agree that the problem of women being punished for sex work should be resolved. Many are anticipating that the review could provide a starting point for future efforts to amend and improve the law.

Women’s rights groups are demanding that punishments be eliminated for female sex workers, but rigidly enforced for the owners of businesses involved in sex work.

The National Alliance to Solve the Problem of Prostitution said, “We are in urgent need of full-scale decriminalization measures for female sex workers, and there needs to be stern punishment of the brokers and businesses that earn profits through prostitution.”

 

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