In Constitutional Interpretation No. 666 of Nov. 6, 2009, the Council of Grand Justices found penalizing prostitutes but not their clients to be unconstitutional. As a result, Article 80, Section 1, Sub-section 1, of the Social Order Maintenance Act (社會秩序維護法) will cease to be effective as of Nov. 6 this year.
The Ministry of the Interior has set course for the abolition of penalties for prostitution, and will authorize city and county governments to formulate or revise bylaws to regulate the sex trade.
Police departments will be the main authority responsible for managing prostitution-related issues. Articles are to be added to the Social Order Maintenance Act to deal with problems related to prostitution, and provisions will be made for hygiene and medical treatment, prevention of sexually transmitted diseases, the levying of taxes on this kind of business and so on.
This outcome is unlikely to satisfy either groups pressing for prostitutes’ rights or those women’s groups that are opposed to legalizing prostitution. It is also likely to place police officers, for whom clamping down on the sex trade has long been an important duty, in a somewhat confusing situation.
Fourteen years have passed since former Taipei mayor Chen Shui-bian (陳水扁) banned prostitution in the city. In that time, no social consensus has been reached about whether to decriminalize the sex industry and stop imposing penalties on those involved.
When the Grand Justices made the 2009 ruling, eight of the judges added concurring opinions calling on the government to formulate a new legal system governing sex workers that suited the needs of an advanced society, starting from the standpoints of guidance, management and protection.
Justice Hsu Yu-hsiu (許玉秀) wrote that selling sexual services was a matter of free choice of profession, which is a right protected by the Constitution.
Germany’s 2002 Prostitution Act, whose full title is the Act Regulating the Legal Situation of Prostitutes, is a possible model to follow.
Hsu said that in principle, other than in exceptional circumstances where there is clear evidence that sex transactions are tied up with criminal activity and are harming the public interest, the freedom of choice to work by offering sexual services for money should be upheld.
Justice Chen Shin-min (陳新民) further recommended that, in order to avoid defamation, the government’s prostitution policy should instead be referred to as “sexual transaction policy,” and that something like a “law on assistance and protection for sex workers” should be drafted to ensure that the relatively underprivileged citizens who work in this sector enjoy the full rights due to them under the Constitution.
Chen Shin-min also suggested that management of sex work should be made part of the social administration system rather than being treated as a law and order issue, as it is at present. He recommended that the management and guidance of sex workers should in future be done by social workers, including both professionals and volunteers, instead of the police.
Rather than clamping down on the sex industry, these social work teams would monitor it so as to keep tabs on sex workers’ living, work and health conditions, providing them with such assistance as they may need through both official and unofficial channels.