| 摘要: | 本文旨在回顧2009-2011年台灣性交易修法歷程，探究兩個關鍵轉折：
一、台灣自1973年之後逐漸趨近全面禁娼，為何2009年11月大法官666號解釋會認定社會秩序維護法80條「罰娼不罰嫖」違憲，開啟性交易修法之門？這個修法契機究竟是如何開啟的？
本文認為，大法官之所以認定社維法「罰娼條款」違憲，關鍵是2009年6月行政院長劉兆玄已做出「朝向除罪化除罰化修法」的宣示，但這並非是行政體系自發性的檢討，而是廢娼政策導致2006年前公娼自救會長官秀琴自殺後，妓權運動團體日日春協會發動系列社會行動，也引發了2007年初王如玄律師以民間委員身分在行政院人權小組提案廢除社維法罰娼條款。此案歷經陳水扁執政時內政部悍然拒絕、馬英九執政時內政部拖延修法，至2009年6月行政院長劉兆玄才做出「除罪化」宣示。劉院長之所以做出此宣示，與妓權運動十二年耕耘已捲動部份社會力量支持，及2008年總統政權更替（陳水扁下、馬英九上）帶來的矛盾與機會有關。大法官666號解釋僅認定罰娼條款違反「平等原則」（未論及工作權等），則為行政部門保留了高度彈性的施政空間。此一修法契機的開啟，並非由妓權團體直接發動聲請釋憲，因為底層流鶯的組織實力不足（性交易執法一國兩制使得性工作者利益被分化、非法與汙名使得流鶯發聲困難），且社會對此議題的討論還有待深化，妓權團體判斷性交易修法除罪時機尚未成熟。
二、為何2009年行政院長劉兆玄宣示「朝向除罪化除罰化修法」，但2011年修法的結果卻是「娼嫖皆罰，得設特區」？在這兩年的決策過程中，有什麼樣的重大轉折，影響了修法結果？
本文認為關鍵有三：（一）內政部長江宜樺在2010年10月提出「開放個體戶及小型合作社，不設專區（負面表列）」，此政策相對務實，但引發同黨立委吳育昇、丁守中及民進黨黃淑英立委反彈，且官方在研擬過程中沒有引導民眾認識不同政策取向的利害評估，因此沒能得到更多民意做後盾，時值五都選舉，隔年又有總統大選，官方採取保守策略。（二）更核心的是，對中央政府而言，多數地方政府根本不願扛起與民眾溝通性交易合法地點如何規劃的責任，中央對除罪也沒有要力推，而是視政治風向調整，因此，即使八成民眾支持「有條件開放、應設（集中式）專區」，但政策最後退縮成「娼嫖皆罰，得設特區」。（三）不僅執政的國民黨如此，在野的民進黨亦以「罰嫖」為其政策方向，迴避地方政府「應」規畫合法性交易地點的責任，朝野共構了「選舉當前，合法免談」。除了以上政治因素外，妓權團體則因底層流鶯實力不足，難以爭取到有利於底層流鶯生存、及壯大其自主拮抗力量的修法方案，因而選擇拉長戰線，站在性工作就地合法的立場下，在風化區透過參選建立底層性工作者與社區的溝通機制。
本文認為，在此次性交易修法過程中最爭議的「地點」議題，是在挑戰人們如何「平常化」看待性產業，人們與性交易潛在的利益衝突（如婚姻、教養、治安、房價等）並非無解，因為許多性產業早已存在生活周遭，然而偽善的地方政府與立委不但沒有朝向促進民眾與性產業之間的溝通，反而煽動性道德恐慌來迴避自己面對合法化的責任。改革不能倚賴官方一時的善意，必須在右翼的藍綠政黨之外，發展左翼人民的政治力量。
;The purpose of this thesis is to review the process of amending sex trade policy in Taiwan between 2009-2011 and explores about two critical turns:
1.Since 1973, the government in Taiwan took on the approach of gradual abolishment of prostitution, then why The Constitutional Court announced the J.Y. Interpretation No. 666 in Nov 2009 had ruled that it is unconstitutional to punish sex workers but not their clients in Article 80 of Social Order Maintenance Act, which opened up the door of amendments to the law? How did this opportunity happen?
The researcher thinks the key reason why Grand Justices ruled this Article unconstitutional was because Liu Chao-shiuan(劉兆玄), the Premier of Executive Yuan, had made a declaration of “amending the law toward decriminalization” in Jun 2009. However, this declaration was not a spontaneous self-review from the administrative system but the stress from the society. The abolishment of Licensed Prostitution in 1997 had led to the suicide of Guan Siou-chin(官秀琴) in 2006, the head of Taipei Alliance of Licensed Prostitutes(公娼自救會). Sex workers group, Collective of Sex Workers And Supporters (COSWAS), initiated series of social activism for Guan, and these also led to the lawyer, Wang Ju-hsuan(王如玄) as a NGO committee member in The Human Rights Protection and Promotion Committee of Executive Yuan(行政院人權保障推動小組) proposing to abolish the Article 80 in Social Order Maintenance Act. This proposition had undergone strong opposition by the Minister of the Interior in Chen Shui-bian’s(陳水扁) term and in Ma Ying-jeou’s(馬英九) term, the Minister of the Interior also postponed the agenda of amending the law. It was not until Jun 2009 that Liu Chao-shiuan made the declaration of decriminalization. The reason why Premier Liu made this declaration was related to the social supports due to the 12-year efforts of sex worker movement, as well as the tension and opportunity brought about by the presidential political power shift in 2008, when Chen Shui-bian handed over the power to the succeeding Ma Ying-jeou. J.Y. Interpretation No. 666 only ruled the Article 80 that punishes sex workers but not their clients unconstitutional due to “the principle of equality” without touching on the “rights to work”, had left a highly-flexible room for administrative sectors. This initiative of amending the law was not led by the sex worker group, COSWAS didn’t file a petition for constitutional interpretation then because of the power of organizing sex workers being weak for two reasons: first, sex workers’ interests were differentiated by the degree of law enforcement due to different types in sex industry. Second, the criminalization and stigmatization also make it even harder for the bottommost street sex workers to speak out. Furthermore, the social discussion around the issue is yet to be deepened, therefore COSWAS thought the timing of amending the law was still immature.
2. Why Premier Liu’s declaration of “amending the law toward decriminalization” in 2009, took a U-turn in 2011 resulting in “both sex workers and clients are punishable by law universally only if local government sets up designated area for sex trade can be exempted” (so-called extraterritoriality)? What crucial turns happened in this 2-year period that had impacted on the results of the new amendment?
This thesis concludes three key points: (1) The Minister of the Interior, Jiang Yi-huah(江宜樺), proposed “permission of self-employed and small cooperatives for sex workers, using negative listing instead of setting up red-light district” in Oct 2010, which is a relatively practical policy. However, this proposition triggered strong oppositions from same party (KMT) legislators Wu Yu-sheng(吳育昇), Ding Shou-zhong(丁守中) and DDP’s Huang Sue-ying(黃淑英). Moreover, in the policy planning stage, the government didn’t guide the public to know the evaluation of different approaches, and thus, failed to gain more support from the public as backing. It was during the heat of local election and with the upcoming of presidential election in the next year, and thus, the government took conservative strategy to deal with the pressure. (2) What matters most, for central government, most local governments were unwilling to assume the responsibilities of communicating with the public about the planning of the location where sex trade can be legal, and central government just trimmed their sail depending on political concern instead of carrying through the stance on decriminalization. Therefore, even though there were 80% of the public in favor of “conditional decriminalization and setting up designated area”, the policy eventually backing down to the form of extraterritoriality that had never been implemented until now, which was totally departed from the original stance on decriminalization. (3) Not only the KMT in power played it safe, but also the opposition party DDP. DDP took “criminalizing clients” as their policy, sidestepping the responsibilities that local government should designate legal sex trade area. Both of them co-constructed and perpetuated the rotten political culture that in the face of election, only ballots count and legalization of sex trade was undoubtedly off the table.
In addition to the above-mentioned political reasons, for COSWAS, as a sex worker NGO, because the power of organizing was insufficient to struggle for an amendment plan that would benefit the living of the bottommost street sex workers and empower their autonomy to fight, COSWAS choose to extend the battle to deepen the organizing of sex workers. With the stance that bottom sex workers who work illegally should be legalized directly, COSWAS advocates to establish communication platforms with the community through running political campaigns in historical red-light district.
The research concludes in the process of amending the sex trade law, the most controversial issue is the “location” which challenges how people can treat sex industry with normalized attitudes. The potential conflicts about people and sex trade, such as marriage, education, security and property price, etc., are not unsolvable, because sex industry in various forms is already existing in our lives. However, instead of facilitating the communication between the public and sex industry, the hypocritical local government and legislators incited moral panic of sex to dodge the responsibility of the legalization of sex trade. Reforms shouldn’t be depended upon government’s temporary goodwill, we must develop a political power of left-wing people outside the traditional major two right-wing parties. |
