A. Background ofthe Case
In this case, theConstitutional Court held constitutional the provision (hereinafter referred toas the “Provision on the Punishment of Commercial Sex Acts”) of the Act on thePunishment of Arrangement of Commercial Sex Acts, Etc. (hereinafter referred toas the “Act on the Punishment of Commercial Sex Acts”) which imposes criminalpunishment on persons who have engaged in sex trafficking.
Before delivering thisdecision, the Constitutional Court had held constitutional the Provision on thePunishment of Commercial Sex Acts which imposes criminal punishment for an actof providing a building in the knowledge that the building is used for sextrafficking [2005Hun-Ma1167, June 29, 2006 (dissenting opinion by one justice);and 2011Hun-Ba235, December 27, 2012]. Also, the Court had decided that theprovision of the Act on the Protection of Children and Juveniles against SexualAbuse which criminally punishes an act of arranging the business of commercialsex by children and juveniles does not violate the Constitution (2011Hun-Ka1,October 25, 2011).
When the petitioner, asex worker, was prosecuted for engaging in sex trafficking by having sexualintercourse, she filed a motion to request a constitutional review of the Provisionon the Punishment of Commercial Sex Acts. The court granted the motion,requesting a constitutional review of the provision.
B. Summary ofthe Decision
The ConstitutionalCourt decided that the Provision on the Punishment of Commercial Sex Acts doesnot violate the Constitution, for the following reasons.
Sex trafficking per secannot be considered an unrestricted transaction between equal parties as itundermines sound sexual culture and sexual morality in the overall society.Even voluntary sex trafficking may infringe on the autonomy of the sex worker’spersonality by commercializing sex. Moreover, the increasing prosperity of thesex trafficking industry distorts the ordinary flow of capital and labor andthus serves as a serious detriment to society. In order to eradicate such sex trafficking,it is necessary to impose criminal punishment on not only the sex buyer, butalso the sex worker. Imposing no punishment on the sex worker may lead to arise in the supply of sex trafficking for economic gain and may lead to femalesex workers becoming entrenched in sex trafficking. In addition, the Act on thePunishment of Commercial Sex contains a broad recognition of the term “victimof sex trafficking” and thus exempts persons forced to engage in sextrafficking or incapable of making decisions, such as juveniles, from criminalpunishment. Therefore, it cannot be said that the imposition of criminalpunishment on sex workers is excessive.
Justices Kim Yi-Su andKang Il-Won presented a dissenting opinion, as follows.
Certain female sexworkers inevitably engage in sex trafficking in desperation for survival, andthis is a social structural matter that cannot be easily resolved on individualterms. Imposing criminal punishment on these persons will foster theunderground sex trafficking market and hinder the eradication of the sex trade,if anything. For the reasons above, the provision on the punishment ofcommercial sex acts which criminally punishes sex workers is partiallyunconstitutional.
Justice Cho Yong-Hopresented the opinion that the Provision on the Punishment of Commercial Sex Actsis unconstitutional on the following grounds.
By nature, voluntarycommercial sex between adults belongs to the extremely intimate domain of anindividual’s private life. The intervention of the state in such intimatedomain of sexual affairs to impose criminal punishment is a declaration andcoercion of the state’s specific moral view. Therefore, the Provision on thePunishment of Commercial Sex Acts violates the Constitution.
C. Aftermath ofthe Case
Regarding thisdecision, the Korean Women Lawyers Association issued the following statement.
Sex trafficking cannotbe regarded as a matter of sexual self-determination that arises in an equalrelationship, because the sex buyer has control over the sex worker’s sex andpersonality due to the fact that the former has paid the price for such act. Itis not subject to secrecy and protection of privacy, either. Moreover, sextrafficking cannot be considered a job subject to freedom of occupation inlight of its detriment to individuals and society. (The Law Times, March 31,2016).