Sex Workers' Human Rights in Korea
I. 2004 Special Law on Prostitution Pending Supreme Court Review
I am very very excited that a case will be reviewed by the Supreme Court to determine whether the 2004 Special Law violates sex workers' human rights.
Foremost, I am excited that sex workers’ human rights are under consideration and particularly Judge Oh Won-chan's arguments:
“We don’t punish a woman acting as a concubine or a wife for hire,” Oh said. “In this regard, the law could violate people’s basic rights.” Oh also questioned the effectiveness of the law, saying authorities should focus on punishing brothel owners and pimps exploiting prostitutes.”Speaking to that exploitation and abuse, several sex workers voice their challenge to the current legal regime through testimony provided in the following excerpts:
“I cannot file a police report even when customers beat me up for fear of facing punishment of my own.”
“Men who buy sex get away with a few hours of lectures while we have to swallow condoms when the police arrive on the scene. The special law on sex trade pushes us into corners.”Professor Sealing Cheng has written several persuasive accounts analyzing the law, a few key points quoted below:
“The Korean Women’s Associations United (KWAU), the largest umbrella organization of women’s groups, mobilized public support for reforms to eliminate prostitution—which was equated with sex trafficking.”As a result, reporting and social discourse about sex trafficking and sex work obscure the problems lingering in South Korean police enforcement of the law to prevent sex trafficking and support victims:
“raids are now reported in the media and by the National Police Agency as raids on “venues that violate women’s human rights” without mentioning the fact that women found in these venues are often charged with the crime of prostitution. A separate report by the National Police Agency, however, stated that by the end of 2009, there were 1,779 middle or high school girls in Seoul officially recorded as having fled from their homes. Of these, 175, or 9.8 percent, were apprehended for prostitution charges. Meanwhile, even though the laws were introduced to tackle the problem of trafficking into prostitution (Article 18.3.3), a 2008 report by the Korean Women’s Development Institute found that not a single case of prosecution took place under this provision. The majority of the cases (91.7 percent) were prosecuted for procuring prostitution, with only 1.9 percent prosecuted for coercion into prostitution.”Thus, the law designed to respond to international norms condemning Korea’s inaction on sex trafficking ultimately results in vigilant policing of sex workers.
II. Rhetoric that I hope the Supreme Court will not Adopt
- I hope the Supreme Court takes a step away from recent precedents implying that all people engaged in the sex industry are ‘victims’ which was previously pushed by the Korea Women’s Association United. The law and media reports obscure sex workers agency by conflating trafficking and sex work. Whether or not the Supreme Court rules in favor of sex workers’ human rights in the pending case, the ‘victim’ language ignores sex worker's agency. The law also overlooks the ways in which criminalizing the sale of sex effectively prohibits sex workers from accessing their rights when they cannot turn to the police in cases of rape or abuse.
- I don’t want to see rhetoric that poses sex work as a ‘solution’ to a state-obligation, or that treats sex like something that men are 'entitled' to while stigmatizing women. For example, last year former senior police officer turned Professor Kim Kang-ja argued that,
“there are members of society for whom it is difficult to find partners, such as the disabled, illegal immigrants and widowers. Society needs to address the needs of these individuals by allowing prostitution in restricted areas”but I find this rhetoric as well as other contemporary examples of gendered policies such as the regulation of migrant marriage, social welfare for homeless women have demonstrated troubling outcomes. This rhetoric also reminds me of the Park Chung-hee era policies regulating sex workers and unofficially deputizing them as cultural ambassadors on behalf of the state and obligating them to negotiate international and racial conflicts in military camp towns, as pointed out by Professor Katherine Moon in Sex Among Allies:
“governmental and non-governmental elites use different classes and groups of individuals to pursue the ‘national interest’… class, local culture, and race interfere with a particular foreign policy issue and the interests and capabilities of governments. The key is to pinpoint which women at what time and in what gendered way are identified with the politics of a foreign policy issue.”- I would hate to see a reiteration of past (and recent) Court rhetoric that frames sex work as a “violation of the social fabric” while ignoring the social and economic realities in contemporary Korea that violate citizens’ rights and imperil their lives. In 2004 and again in 2011 the lower courts revived the ‘social fabric’ argument and in 2006 demeaned sex workers directly by calling their work “an obscene and shameful lowly occupation.”
III. Hoping for New Perspectives on Sex Work
- Perhaps the Supreme Court might take a moment to acknowledge that not only women are sex workers.
- It would be great if the Supreme Court affirmed sex workers human rights, and possibly paved the way for access to health care and other social services citizens and workers currently access without discrimination.
- It would be fantastic to see the Supreme Court give an honest appraisal of the real role and value of sex work in Korean society. Like Judge Oh Won-chan, the Court has an opportunity to take steps to decrease the stigmatization of sex workers.
IV. Call for Dialog
I also have a personal and scholarly interest in the issue and I have spent the last year researching court cases. It is my opinion that the social conditions, the discriminatory police crackdown, and the enforcement of penalties in the law do violate human rights. But, I am not a Supreme Court judge, so I wait with fingers crossed hoping to hear that a new law will adequately protect all human rights concerned – the rights of sex workers and protections against sex trafficking – which is at best, problematic, in the current law. I will be following this case and also hope to publish a paper on the topic. I would love dialog with others interested in the issue and welcome your comments.
Cheng, Sealing. “Rethinking “Human Trafficking”: Reflections from South Korea” in Woodrow Wilson International Center for Scholars, MIDDLE EAST PROGRAM & UNITED STATES STUDIES, OCCASIONAL PAPER SERIES, Rethinking Human “Trafficking,” SUMMER 2010.
Moon, Katherine H.S. Sex Among Allies: Military Prostitution in U.S.-Korea Relations, 1997.
Relevant Korean Supreme Court Cases:
대법원 2004.09.03 선고 2004다27488 2004다27495 판결 【가불금•손해배상(기)】 [공2004.10.15.(212), 1650]
대법원 2011.10.13. 선고 2011도7081 판결
대법원 2011.10.13. 선고 2011도7081 판결
Korean media in English:
Prostitution vs. women's rights
Confession of a prostitute
Judge seeks constitutional review of law that criminalizes prostitution
Is sex trade really illegal?
Korean media in Korean:
'성매매여성 처벌 조항' 처음으로 위헌 심판대 올라
법원, '성매매 여성 처벌 조항' 첫 위헌심판 제청
'성매매 여성 처벌법' 위헌 제청
[성매매특별법 8년]'음지의 性' 더 키웠다…자활-법률지원 절실
불꺼진 단속 … 또 불붙은 성매매 -성매매 특별법 시행 7년 …키스방•호스트바 등 음성적 영업 신•변종 업소'활개'
성인간 합의된 성관계 처벌 지나쳐 vs 性상품화 용납 못해
"성매매특별법, 개인 자기결정권·여성 평등권 침해"
성매매특별법, 위헌 심판대 올랐다