Decriminalisation of the sale of sex; the defects in the current South Korean laws of prostitution and the alternative
South Korea remains as one of the two members in the OECD where all types of prostitution is illegal. However, it is questionable if the strict bans on prostitution have worked in an effective way. In South Korea, buying or selling of sex is illegal, and the courts have steadily shown their anti-prostitution stance for decades by rejecting several challenges brought to question the constitutionality of the country’s bans on the sale of sex. Proponents for criminalisation have argued that it is the way to uphold human dignity and to protect sex workers from the so-called consensual crimes. However, researches show it would never be possible to eradicate the sex industry in the country. South Korea has 6th biggest sex trade market in the world, and demand for prostitution is extremely high. Despite the strict bans, there are red light districts which are not hard to access and different forms of business have kept emerging under different names like a ‘massage room’ or ‘kiss room’ where prostitution is available at from tens of dollars to a small fortune. Contrary to the idea of protecting sex workers, making the whole industry illegal has put them in a more vulnerable position due to the illegality and the social stigma. This essay, therefore, presents decriminalisation as an alternative and a more effective way to handle the problems related to prostitution, and reasons the idea with various data and academic opinions.
South Korea remains as one of the two members in the OECD where all types of prostitution is illegal. However, it is questionable if the strict bans on prostitution have worked in an effective way. Prostitution has a long history in the country, and the demand is still high despite the efforts of the legislative body and the government. Considering that over half of the male citizens have experiences of buying sex, sex trades are so commonly but unknowingly done. At this point, the side effects of criminalisation of prostitution should be discussed and by doing so, decriminalisation can be offered as an alternative for the benefits of all. The essay will argue that buying and selling sex between consenting adults should not be interests for the criminal justice system considering the expected consequences; it would promote sex workers’ human, civil and employment rights as well as buyers’ liberty, bring the industry out into the open and safe area, and maximise the potential contribution of the industry to society and the national economy.
Ⅱ. The current laws and practices
- The laws
In South Korea, buying or selling of sex is illegal per se. In particular, the Anti-prostitution Act was enacted in 2004 to prohibit all types of sex trades. The previous Act banned prostitutions, however, the government allowed around 100 brothels to keep their business operating, so the law could not properly carry out its role. The idea for strict regulations against prostitution was adopted following a public outcry emerged from a case where young prostitutes died in a fire, behind iron bars placed on the windows at a brothel. The pimps placed the bars and kept the exits closed in order to keep the trafficking victims from escaping, and the police officers in the area, who were later found guilty for the negligence of the duty, had taken bribes from the pimps.
The Court ordered the government to pay compensations for its regulatory negligence, and it was the first case to hold the government liable for the regulation of prostitution. The case resulted in the 2004 statute, and it was followed by aggressive campaigns against sex trades. Ever since then, the government has made it clear that prostitution is illegal no matter what, and the Constitutional Court in 2016 took a similar approach in ruling a challenge filed by a sex worker in Seoul, which was brought against the country’s ban on prostitution. The court ruled that the ban does not violate the Constitution of South Korea, and decriminalisation cannot be justified by liberalizing or promoting openness in sex. It shows the laws have been always against prostitution, however, the data shows the reality does not provide satisfying outcomes to the laws.
Despite the stringent stance of the laws, sex trades have not been eradicated in South Korea. According to Havocscope, South Korea has 6th biggest sex trade market after China, Spain, Japan, Germany and the United States, with the estimated market size of 12 billion US dollars. The number is likely to increase when including unreported cases. Korean Institute of Criminology states that only four or five out of 100 cases are reported, and its estimated size is three times larger than Havocscope’s. The reason for the large market size can be found in the reports of South Korean Ministry of Gender Equality and Family (MOGEF). According to the 2016 report, 50.7 per cent of men have experience of buying sex, and 81.4 per cent of them had their first experience in their 20s. There are still 42 red light districts across the country, but the majority of the buyers preferred places such as ‘Room Salons’ or ‘Karaokes’ where the main business is not prostitution but it is provided as an option. These forms of sex trades are harder to crack down than the brothels. The data undoubtedly shows the laws have not stopped prostitution, and it is, in fact, never possible to eradicate the industry.
III. The downside of criminalisation of prostitution and decriminalisation
- The need to review the laws
Throughout the enactment process, there has been not much discourse about prostitutes’ rights and safety. Criminalisation of selling sex often puts the workers in danger of violence, for example, due to a lower personal security. The lack of discourse about sex workers has certainly violated their right to choose where to work and to associate with fellow workers without getting charged. It even brought an adverse impact of putting sex workers, especially street workers, in a more vulnerable position where they are more easily assaulted or even arrested rather than being able to seek help from the police. Consequently, it makes the workers go further underground to avoid police intrusion. With regard to these facts, legalisation would be the most suitable answer to tackle the relevant problems and to bring a better future to the industry and its workers.
- Legalisation of the sale of sex
(1) The rights of sex workers
The legalisation of the sale of sex will provide protection for human, civil and labour rights of sex workers that every human and working citizen deserves as well as respect for their rational and autonomous choices or better safety and health standards. Abraham (2005: 113) states that ‘sexual choices are certainly as fundamental to our lives as artistic expression’, so there is an absolute right to become a prostitute even when it conflicts with the traditional moral order. Aside from moral issues, potential risk of contracting sexually transmitted diseases also cannot constrain the right as we do not criminalise, for example, buying fizzy drinks that might result in lifestyle diseases like obesity that are more common and dangerous.
The International Union of Sex Workers (IUSW) has an argument for legalisation of prostitution specifically for the awareness of sex workers’ rights and responsibilities against radical feminists or anti-trafficking activists who insist that prostitutes are not voluntarily involved in the industry, yet they are victims of sexual exploitation. The Union shows the majority of sex workers, in particular escorts, voluntarily stay as prostitutes due to different reasons like comparably high wage or flexible working hours. Even when it comes to street workers, most of them are not trafficked or forced, but voluntarily decide to stay in the industry, for example, after having a big difficulty finding a new job as they are stigmatised of being a ‘whore’ or have another criminal record. Criminalisation rather puts them into the fear of having another criminal record. Moreover, it is not helpful for prostitutes to exit the industry since there are no alternatives to get involved in another industry, but rather it makes voluntary prostitutes forced to go into grey areas where they are more easily exposed to the risk of violence due to the stigma the laws and society put on them. Thus, the response to this should not be criminalisation but to respect the sex workers’ right to freedom of choice and provide alternative ways to exit the industry for those who want with consideration of their exact needs and welfare.
Other human or civil rights of sex workers would be also better protected by legalisation of prostitution. The World Charter for Prostitutes’ Rights (WCPR) that was adopted by the International Committee for Prostitutes’ Rights (ICPR) calls for legalisation regarding all voluntary prostitution to protect the human rights and civil liberties to which sex workers are entitled as citizens. It argues that the rights are often jeopardised by criminalisation since it not only violates sex workers’ right to freedom, but creates a stigma of prostitution and subsequent discrimination. The most common example is the right to a health. The Lancet and many other medical communities argue that there is a barrier for sex workers to access ‘prevention, treatment and care services because of the stigma, discrimination and criminalisation’ that puts sex workers in the fear of being condemned for what they do. The World Health Organisation (WHO) also argues legalisation would help to fight against HIV and other sexually transmitted diseases with more open society and laws. Those authorities believe legalisation would enable sex workers to enjoy the full protection of existing laws of health or violence regardless of their profession.
The WHO also recognises that the employment rights of sex workers are violated by criminalisation of selling sex. If prostitution remains illegal, prostitutes cannot enjoy the labour rights such as a right to unemployment benefits which other working citizens are guaranteed. In the Netherlands where prostitution is fully legalised, sex workers pay taxes like any other workers, and it makes it easier to support their rights by enabling the government to reinvest the money to benefit the profession. Other related labour rights like rights to freedom of peaceful assembly would be protected as well.
(2) Comparison to the Swedish model
There has been an alternative system under where demand for prostitution, not supply of it, is criminal. This idea of criminalisation of the purchase of sex has got more credits following ‘Swedish model’ which was introduced in 1999 with an enactment of the Sex Purchase Act (Sexköpslagen). The Act criminalises buying, but not selling of sex, to make it harder for buyers to seek for the services whereas sellers are still not intruded by laws. Its main goal was to bring a significant drop in demand, and consequently, the size of prostitution industry. It also expected to promote gender equality by shifting the stigma of prostitution from women to men. In fact, there indeed was a drop of the number of prostitution in Sweden after the enactment, and many academics have said it is the most effective way to handle sex industry. However, critics argue it does not reflect the truth as the figures did not include male prostitutes and prostitution outside the large cities or at indoor premises, and thus there have been no reliable data to see whether the demand really have decreased. Furthermore, even when assuming the demand has decreased in real, reduced demand does not necessarily result in lowering the supply, and most importantly, it never makes sex workers better off.
The idea of criminalising clients is still largely based on the thought that prostitutes are the victims of one form of a patriarchal violence. This works hugely against gender equality. Moreover, it is not liberal to make buyers of sex criminals in some views. Contractarians argue that sex trades are valid contracts of money and labour power, and liberal feminists and prostitutes’ rights advocacy argue there is nothing inherently wrong with sex work. The model, furthermore, is not ideal for South Korea because the size of the prostitution industry of Sweden is far smaller than South Korea.
The Economist supports a recent trend of online sex trades that allow prostitutes to build their personal brands and customers to review and find the exact service they want, which makes it harder for the government to regulate the market. However, even without any government intervention to make sex trades illegal, the free market is likely to enable safer and more private trades that benefit both sellers and buyers. Sex workers can get paid what they deserve depending on the services they provide, and they can work at home or places they feel safe. Even though there are clear needs for regulation of child prostitution or trafficking, other free and consensual sex exchanges should not be regulated by law regardless of the forms.
(3) The expected outcomes
If prostitution is legalised, the rates of trafficking or other sex-related crimes would decrease and public health benefits would increase contrary to the prevalent thoughts that legalisation would work in the opposite way. The biggest reason for this is that prostitutes can access the police easily and exercise the right to choose their workplace and its conditions with a better personal security. Furthermore, a paper shows an accidental decriminalisation of indoor prostitution in Rhode Island in 2003 lowered the number of rape offences by 31% and gonorrhoea by 39% from 2004 to 2009. Cundiff also shows legalisation of prostitution would bring ‘a decrease in the rate 10 per 100,000’ as it lowers the price of prostitution. Improvement of the risk of sexually transmitted diseases stemming from the sex industry becomes possible through provision of a better health service to the workers. Harcourt showed that health promotion programmes in Australia were best performed in Sydney where prostitution is decriminalised and brothels can be owned without licenses compared to other cities like Melbourne or Perth where prostitution is partly or completely criminalised as the programmes in the latter were not provided to workers in unlicensed brothels or not equipped with various services, for example, in different languages.
The idea of treating prostitution as an occupation would change the prevalent social conception that stigmatises sex work and discriminates the workers. Any form of criminalisation of prostitution generates the idea that sex workers are victims and the industry is wrongful in some way, and makes it hard to normalise the industry. Prostitution, in fact, is one of the oldest professions with ongoing demand toward it throughout the whole history. Rather than making it illegal and demeaning prostitution, the law should legalise voluntary prostitution to lower the stigma and ensure forced prostitution is prohibited.
Office for National Statistics shows that legalisation of prostitution would contribute to the economy approximately 7 billion US dollars per annum. With regard to that the exact size of the industry would be bigger due to the possibility of being under-reported, full legalisation of prostitution is expected to bring a huge rise in GDP.
In conclusion, it is clear that buying and selling of sex between consenting adults should be out of the criminal justice system’s boundary. The legalisation of prostitution would be more helpful to protect the rights of sex workers and provide better standards of health and safety by stopping sex industry being driven to go further underground. It is also expected to bring positive effects to our economy and society; contributing to decrease of sex-related crimes, improving social stigma of sex workers and resulting in a greater GDP.
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