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.
Most, if not all, countries in the world have seen fierce debates as to what attitude to take regarding the sex industry. Germany, the Netherlands, Austria, Belgium, France, Italy and Switzerland have all taken steps to legalize prostitution.
In recent years, however, international concern over human trafficking has grown as the trafficking of women and children to be exploited in the sex business has becoming an increasingly concerning problem.
In response, EU member states are seeking to deal with the problem by scaling down the sex industry and trying to cut the demand for such services.
The US, for its part, is opposed to prostitution and related activities, and treats pimping, running brothels and other activities that may encourage human trafficking as illegal.
Even in countries where sex work is legal, defamation can be an inescapable nightmare for many sex workers.
In September last year, Melissa Petro, an elementary school teacher in New York City who holds a master’s degree, revealed in her online writings that she offered sexual favors in return for money for a while when she was in college to help pay tuition fees. When news of this got out, her school’s switchboard was jammed with telephone calls from angry parents and the city revoked her teacher’s license.
The Netherlands is well known as a country in which sexual transactions are legal, but in 2004, when Rob Oudkerk, the alderman in charge of education and social affairs policy for Amsterdam City Council, was exposed as having visited prostitutes, he was denounced at home and abroad for failing to grasp social realities and abetting a situation in which underprivileged women from overseas could get into trouble. Oudkerk was forced to resign.
Many sex workers are victims of domestic violence or other violent crimes, and most of them come from underprivileged social groups.
Following the grand justices’ interpretation, Taiwan’s government is on course to abolish penalties for sexual transactions, but we urgently need to get to the bottom of the issue by undertaking a sweeping review of relevant criminal and civil laws, including the Child and Youth Sexual Transaction Prevention Act (兒童及少年性交易防制條例).
If sex work is a social problem, then we should refer to Chen Shin-min’s suggestion that health and welfare departments should take over responsibility for managing it, and social workers look after sex workers, instead of having the police crack down on them.
If sexual transactions are a matter of people’s right to work and sex work is determined to be a legal business, then its management could be modeled on that of other business sectors, and the Ministry of Economic Affairs should formulate regulations relating to licensing, registration and management.
The government should not try to make things easy for itself by having the police handle this hot potato. That would just leave the sex industry dangling between conflicting concerns for human rights and public order, while police officers would become the a taget of derision from both sides for not doing their proper job.
Sandy Yeh is an associate professor at the Central Police University and a board director of the Police Research Association.
Translated by Julian Clegg
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