It is not prostitutes but women’s rights that should be protected.
This is the gist of the minority opinion on the 6-3 split decision by the Constitutional Court on the petition that the current law punishing women for voluntarily selling their bodies complies with the basic law.
Among the three dissenting judges, one claimed that the clause, part of the 2004 anti-prostitution special law, is completely out of synch, citing that self-determination is a birth right, while the other two dissenting judges claimed that women in such circumstances should be cared for and rehabilitated so they can lead normal lives rather than being sentenced to jail terms of up to one year or fined up to 3 million won.
“The unforced trade of sex between consenting adults has no room for the government’s intervention,” Judge Cho Yong-ho stated in opposition to the decision.
The two partial dissenters said, “We agree on the need for the law to get rid of the sex trade and the protection of healthy sexual morals but punishing a woman in this case constitutes excessive use of punishment.”
The dissent is significant in that all previous seven cases were rejected or dismissed. These dissenting judges suggest the court is reflecting a changing dynamic in public opinion showing that the supporters of abrogating the law outnumber the traditionalists looking to ban prostitution. That liberal trend was manifested by the court’s decision last February to abolish adultery.
The dissension also goes along with international trends, evident in northern Europe which exempts prostitutes from punishment, but gets tougher on those who buy and solicit sex.
The majority opinion, as expected, stated that whether in coercion or voluntary, acts of selling sex are likely to commoditize sex and violate the free will of the women involved. “Condoning it is tantamount to allowing the sellers to turn themselves into the sex objects of the buyers at the risk of compromising their human dignity,” the majority opinion stated.
For the lack of a better choice, we may settle for the majority’s view, heeding its concerns that the sex trade could be more prevalent if the current stringent anti-prostitution law starts to crack. Still, two things need to be made clear. The current law calls for abolition: first because it, among other things, has driven prostitution underground, in some cases out to residential neighborhoods, and second because the law is often described as a blunt object with no subtleties in uniform punishment.
Finally, our common belief is that a personal decision is best left to the person.