Get government out of bedroomsSex trade is legally banned in this country. The anti-prostitution law is a good statutory example of an act disallowed without thorough consideration of whether the act should be subject to punishment. The court challenged the law and referred the question of constitutionality to the Constitutional Court because it cannot explain and argue punishment through legal reasoning.
When the sex trade is characterized as illegal, it is because it can undermine social order and interest in healthy sexual practices. But how to define healthy sex and what the state can do to protect it are debatable. Let’s first examine the argument by prohibitionists.
First of all, they contend the sex trade is immoral because sexual activities occur outside marriage. That logic could be extended to all sexual relationships between unmarried people. Their reasoning could stretch to the preposterous conclusion that the state can punish any single people engaged in sexual acts.
Second, they claim sex for money is unhealthy because the practice is not based on love and intimacy. But there are many couples in loveless marriages. Should they, too, be subject to punishment for their mechanical sexual acts? The notion of punishing people for having sex without intimacy - or love - is ridiculous.
Third, they argue against the commercialization of sex even in a capitalist society. Sex is part of human personality and trade in sexual services would be placing humans as sex objects for sale. There can be no doubt that pimping and forced sex, just as trade in human organs, should be strictly prohibited. But selling sex for money does not necessarily shift ownership of the organ used in sexual act to another. The term “selling” is wrongly applied in the first place. Sexual trade is not sales of an object, but services according to the needs of the other party. It is wrong to criminalize a person for prostitution with the argument that it is trade in human organs when it is not.
Fourth, prostitution opponents also see it as a form of violence against women. But prostitutes are exploited because their services are illegal and subject to punishment. Even if women are unfairly and cruelly treated by pimps, they cannot be legally protected because they, too, are prosecuted as criminals when caught for receiving payment for their acts. Does it make sense to prosecute a victim in order to prevent unfair violence and exploitation? It should be those who exploit the women who are punished.
Free choice in sex is a basic constitutional right. A person has the right to choose who, when and how he or she becomes sexually involved with another. Whether that person wants to pay for sex should be a private choice and not a matter for the state to interfere with through enforcement of criminal law. Those engaged in prostitution do so because they do not have other, better means to make a living. They should be pitied, not punished. Criminalizing them is an excess of state authority.
The author is a professor at Chung-Ang University Law School.