Q3. Does a law that prohibits the selling of sex protect or infringe women's rights?
Author’s Note: In this essay, I will not make legal distinction between selling and buying of sex. Selling and buying are two sides of a single coin, as a seller always assumes a buyer. Selling cannot be done without buying; thus, even when the law stipulates that the selling of sex is legal but not the buying of sex, the seller is still participating in an illegal transaction, as the transaction is illegal on the buyer’s part, with whom the seller has made the transaction.
매춘, 여성에 대한 매춘으로 한정짓는다. 사회구조적 차원에서 이루어지는 매춘은 입법화한다고 해서 음성화되어지기에 이에 대한 대책은 다른 방식으로 논의되어야한다.)
Often described as the world’s oldest profession, the debate on the legality prostitution (세계에서 가장 오래된 직업이라는 매춘, 그렇지만 이 직업은 합법과 불법의 경계사이에 놓여있었다는 생각이 든다. 캄보디아의 생계형 매춘!!
The debate on the legality of prostitution has tktktk. From Christian rightists to feminist leftists, people from a wide range of political and religious groups resonate with criminalization of prostitution. (선생님, I had a hard time writing an introduction. Should we get rid of introduction altogether?)
In this essay, I will argue that the law criminalizing prostitution protects women’s rights given that it protects women’s civil rights. (문정, 주장)I use the term “rights” as defined and elucidated by the United Nations (UN) and the Universal Declaration of Human Rights (UDHR). [1] After establishing that prohibition of prostitution protects fundamental women’s rights, I move onto address a popular argument that prohibiting prostitution violates women’s a) sexual freedom and b) freedom to choose job. (반대편 입장) In doing so, I will first examine reasons (반대편 입장의 근거들? 그런데 근거를 왜? 매춘에 들어가는 입장을 썼을까? )for which women engage in prostitution, and for each of these reasons, discuss whether such claim could be held true. (그 근거들이 정당한지 아닌지를 판단한다고)
Before diving into my arguments, I wish to clarify that although I attempt to direct the focus of my essay to what we generally consider as “prostitution,” and not “sex trafficking,” there are instances where the line between the two seems to blur. In such cases, however, please note that by defending prohibition of prostitution, my goal is to make us altogether question whether such distinction should even exist, and that, even if it does exist, our question does not demarcate one from the other, as it uses the term “selling of sex” that can imply both prostitution and sex trafficking instead of a more nuanced term “prostitution.” (선생님, should this paragraph go into the Author’s Note part?) 그래 차라리 이부분을 저자의 노트에 올려라. selling of sex는 prostitution이고, 다음에 prostitution에 대한 정의, 즉 여기에서는 일반적으로 여성이 남성에게 자신의 신체와 그에 대한 성적 서비스를 제공하는 것으로 정리해준다. 그러면 prostitution과 sex trafficking에 대해서도 장황하게 구분해서 설명할 필요가 없잖아!! 매춘의 합법화가 가져오는 문제로서 sex trafficking을 말하는게 나아보인다.)
Protecting women from human trafficking is crucial in protecting their rights, as human trafficking violates various human rights, including, but not limited to “the right to life, liberty, and security; the right to freedom of movement; and the right not to be subjected to torture and/or cruel, inhuman, degrading treatment or punishment,”[1] all of which stipulated by UDHR. Dreher and Neumayer, after analyzing data for up to 150 countries, concluded: “on average, countries with legalized prostitution experience a larger degree of reported human trafficking inflow.” [2] In cross-country comparisons of Sweden (where prostitution is prohibited) with Denmark and Germany (prostitution is legalized in both countries) the trafficking inflows and the prostitution market shrunk with criminalization of prostitution and increased with decriminalization.[3]
Article Two of UDHR establishes that “everyone is entitled to all the rights and freedoms […] without distinction of any kind, such as race, colour, sex,”[4] thereby highlighting gender equality as an essential human right. Although it is true that there are male prostitutes, most prostitutes are women. Homicide rate of prostitutes while working (204 per 100,000) was 51 times higher than female liquor store workers (4 per 100,000) and 4 times higher than male taxicab drivers (29 per 100,000), standard occupations that had the highest homicide rates while working in the U.S. in 1980s.[5] In a study conducted by Silbert and Pines, 70% of street prostitutes in San Francisco reported being raped by their clients an average of 31 times.[6] To further highlight that prostitution is a patriarchal gender relation and an institution of women’s sexual oppression, 60-75% of female prostitutes suffered rape, 70-95% physical assaults, and 68% PTSD in a study done in nine countries, including the United States, Canada, Turkey, and Germany. [7] If the fact that more than 80% of prostitutes are women and that a clear majority of their clients are male is not an indication of gender inequality, what else could it be?[8] As in the words of a leading feminist activist Dorchen Leidholdt: “What other job is so deeply gendered that one’s breasts, vagina and rectum constitute the working equipment?” [9](매춘이 합법화되었을때 나올 수 있는 문제들)
Freedom from slavery and involuntary servitude is protected under the Thirteenth Amendment to the U.S. Constitution: “neither slavery nor involuntary servitude […] shall exist within the United States.”[10] In a study done in nine countries, including the US, Germany, and Canada, 89% of female prostitutes wanted to leave prostitution, and another study done in Malaysia,
Indonesia, Thailand, and the Philippines showed that 96% of women wanted to leave. [1] A different study concerning street prostitution in Toronto suggested that about ninety percent of prostitutes wanted to leave but “felt unable or unclear about how to even begin this process.”[2]If they are still practicing prostitution because they are unable to leave, doesn’t this indicate that their job is no different than sexual slavery and/or involuntary servitude? A law that prohibits any form of slavery and/or involuntary servitude protects human rights.(이들이 매춘이라는 일을 떠나지 못하는 것은 그의 자유의사에 반해서가 아니라 떠날 수 밖에 없는 사회적 환경인데, 이것을 법으로 금지한다면 환경은 그대로여서, 다시 흔히 말하는 trafficking으로 음성화해서 들어가지 않을까? 마치 어린이 노동을 금지했더니, 그 어린이들이 일할 수 있는 직업이 없어짐으로써 더 어려운 환경에 그들을 놓이게하니까 말이다. 언제 TV에서 캄보디아의 어린 소녀들이 외국인에게 몸을 팔기 위해서 피임도구를 사용하는 방법을 늙은 매춘부에게서 교육받는 것을 본적이 있다.위안부는 전쟁에만 있는게 아니라는 사실이다. 따라서 나는 저자의 노트에서 이부분에서 사회구조의 차원에서 일어나는 매춘은 자유의사가 아니고 사회정책이라는 차원에서 다루어지기에 배제하기로 하였다고!!)
In addition, although it is significant to note the distinction between prostitution and sex trafficking, it is hard to neglect the fact that majority of women in prostitution were sexually abused in childhood (two independent studies show that 60% and 66% of prostitutes were sexually assaulted in their childhood, respectively), and that these women are taken advantage of their “position of vulnerability.”[3] Recruitment through the means of abusing “position of vulnerability […] for the purpose of exploitation ” is defined as human trafficking in the Article three of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons. [4] The majority of prostitutes, then, must not be considered as prostitutes but victims of human trafficking.
Yes, you might say, it seems as if criminalization of prostitution protects some women’s rights. But how about women’s sexual freedom and freedom to choose job? Isn’t prohibition of prostitution depriving women a) their freedom to do whatever they wish with their bodies and b) their freedom to choose job?
To assess this claim, I will first made distinctions between various cases for which women engage in prostitution. The causes for which women enter into prostitution can be largely divided as the following:
1) Due to poverty only. She has no other option but to become a prostitute to earn the very minimum to sustain herself and her family. (이런 상태에서 매춘을 금지한다면 매춘은 음성화되어질 수 밖에 없다. 이는 다른 사회정책으로 대응해야할 사안이다.)
2) For any reasons other than 1). This can include cases where a woman engages in prostitution because selling of sex, compared to other service/labor jobs that are available to her considering her education and/or socioeconomic status, is more lucrative. This also includes cases where a woman becomes a prostitute because she enjoys selling of sex.
Let’s first examine whether criminalization of prostitution transgresses women’s a) sexual freedom and b) freedom to choose jobs for women grouped under case 1). We have already established that in this specific case, women are given no other option but to engage in prostitution. As there are no other occupational choices, they are forced into becoming prostitutes by poverty. Freedom presupposes autonomous independence, and only when these women have the ability to quit prostitution whenever they want and enter into another occupation to support themselves can we consider them as free beings. Thus, we cannot say that these women were truly “free” in their decisions to engage in prostitution. As women in case 1) were not free to begin with when entering prostitution, criminalization of prostitution does not violate their freedom to choose jobs. We can also follow a similar line of reasoning to conclude that, as women were led to become prostitute due to circumstances regardless of their sexual preferences, neither is the criminalization of prostitution infringement of sexual freedom.
Now, let us examine whether reasons 2) and 3) can be valid reasons to engage in prostitution. The heart of this argument lies in the fact that it assumes that prostitution is a normal job. The logic follows, that if prostitution is merely one job choice among many others, there must be nothing wrong with prostitution and thus be decriminalized. In discussing reasons 2) and 3), we must then ask ourselves whether prostitution can be considered a normal profession at all.
Let’s assume that prostitutes are normal tradesmen. We then arrive at the following conclusion: as prostitution is no different than any other jobs in service sectors, it must be legalized and regulated in the same matter as other jobs involving trading services.[1] One of the legal stipulations that providers of services and good are obliged to is the following:
It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.
In cases where there is discrimination against “individual or a group” on the basis listed above, the Colorado Anti-Discrimination Act (CADA) asserts, the state has the right to intervene. If we accept this anti-discrimination act to be applicable in other service sectors, then, we must also apply this to the trading of sexual services, namely prostitution. That is, prostitutes cannot discriminate whom they offer their service on the basis of “disability, race, creed, color, sex, sexual orientation, martial status, national origin, or ancestry.” However, prostitutes’ sexual freedom must be recognized to avoid infringing their rights. But the CADA, which must be applied to prostitution if we indeed accept the preposition that prostitution is a normal job, deprive of prostitute’s right to have the “full discretionary power to refuse to have sex under any circumstances”[1] (i.e. sexual freedom). Thus, if we accept that 1) prostitutes must have the absolute right to refrain from having sex and that 2) no one, on the bases of those listed in CADA, should be refused of the enjoyment of any services, facilities, or goods, then we must object to the argument that prostitution is a normal job that can merely be considered as offering of sexual services.[1]
둘째는 직업선택의 자유라는 점에서는 여성의성이라는게 상품화되어질 수 있는 것인가에 대해서 다른 상품과의 차이를 지적해주고 있다. 즉 여성에 대한 '대상화'가 이루어진다는 점에서 매춘은 여성의 인권에대한 침해로 볼 수 있다. 따라서 매춘은 시장에서 거래되어질 수 있는 상품이 아니기에, 정상적 직업이 될 수 없다는 이야기냐? (그런데 그런느낌으로 글이 안온다.)한국에서는 매춘에 대한 합법화가 남성의 성적 요구를 해소함으로써 성범죄의 발생을 감소시킨다는 점에서 찬성하는 사람도 있지만 실제로 그렇지 않다는 것은 이미 가디안에서 다 이야기했다.
Conclusion:
Here, I must note that I am not denouncing prostitutes by arguing for criminalization of prostitution. Rather, I wish to present an argument in favor of the law that protects women’s rights, as I have shown in the essay.
However, regardless of whether the law prohibiting selling of sex protects or infringes women’s rights, in order for the sex market to operate, it requires not only a supply of women but also demands.[2] But we often fail to ask a critical yet unsettling question as to why there exists such an unending universal demand from men that women’s bodies are traded just like any other pieces of merchandise.[3]To answer this, shouldn’t we reconsider the very fact that we tend to idealize and value consent over prohibiting public sexual access to women’s bodies?
Writer : Jess,Choe
Governor’s Academy
Stanford University
Awards : John Locke Essay Law,Philosophy Commeded
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