Prostitution ban in step with societyThe appeal to the Constitutional Court to decide the constitutionality of the sex trade amounts to questioning whether the state should interfere and prosecute an adult who willingly wants to earn money through sexual activities. Its argument is that the state ban on the sex trade violates a basic human right to sexual autonomy and self-determination, and therefore it opposes applying criminal law to private sexual activities.
The term “right to sexual sovereignty” is being used as if sexual acts should be decided by individuals as part of their constitutional right to freedom. Rather, it should be seen as a criminal concept concerning women’s right to consensual sexual acts. It does not apply to men. It is a prerogative bestowed to women to have the primary decision over sexual acts so they can refuse to be engaged. The state is protecting women against sexual violence and preserving their right to sexual autonomy. The right, therefore, should not be misapplied to any sexual act or the exchange of sex for payment.
Some argue that when the sexual trade is done through consent, it should not be prosecuted. There are many types of crimes that demand criminal punishment even though they are voluntary actions or practices that do not necessarily harm others. Drug trafficking, the trade of human organs and abortion are all illegal criminal activities. Some also claim it is violation of the right to equality if engaging in prostitution with a certain person is not punished. In that sense, to punish the male buyer and not the female seller could violate their right to equal treatment under the law. If there are two parties involved in a trade of illegal buying and selling, the principle of dual punishment should be applied. That is why both men and women are considered to be at fault in cases of adultery.
Some also argue that criminal law interference should remain minimal because the sexual act involves privacy. Sexual acts are completely private and freedom of intimacy should be ensured without limits.
But whether to legitimatize the trading of sex as if it is an object and commercialization of the act or treating it as labor that demands payment should reflect moral and social concepts as well as consciousness of the general public.
State interference, or criminal law enforcement, is also decided through the legislative process, which reflects public opinion. The issue of legitimizing prostitution also requires public consensus. Many countries that tolerate or do not prohibit and punish prostitution have severe social problems. Illegal or underground sexual trade has increased after prostitution has been legalized as a legitimate business.
Unwanted pregnancies, violence and discrimination against women in the business can causes problems. That sex can be traded for money also is a harmful influence on male-female relationships.
Some also say that the financial rewards for sex are not the fundamental problem of sex trade. But the main purpose of prostitution is to earn money. To protect the financially weak, there should be better options than the sex trade. The argument for legalizing prostitution because the anti-prostitution law does not have any effect won’t likely win broad public consensus in a society that still refers to adultery and abortion as criminal acts.
Social perspectives on sex are rapidly changing. But the issue of legalizing prostitution should be prudently studied in light of protecting the ethics and morality of our society. The state has the obligation to protect not only individual freedom, but the body and soul of civilians as well as maintaining overall social health.
The writer is a law professor at Sookmyung Women’s University.
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