The Paradox of Vernacularization: Women's Human Rights and the Gendering of Nationhood, Sealing Cheng
Building on Merry’s (2006) idea of Vernacularization, Sealing Cheng traces the adaptation of international norms about human trafficking and women’s human rights in South Korea, and finds that American diplomatic maneuvers, the South Korean state, and the South Korean women’s movement have conflated human trafficking with sex trafficking and narrowed anti-trafficking concerns down to prostitution.
Although efforts to localize women’s human rights in anti-prostitution reforms may challenge the state and propel reforms, Cheng argues that they may also corroborate state nation-building and reinforce a statist notion of national culture and womanhood.Through her case studies of the translation of human rights ideas in campaigns against violence against women in such diverse sites as Fiji, India, and Hong Kong, Merry found that vernacularization of the rights framework challenges deep-seated ideas of gender violence as a normal and natural social practice. Yet Merry’s approach seems to have side-stepped one important discussion: for whose good and to what extent do women’s human rights get vernacularized? [...] While the state, national elites, and middle-class activists may all pledge their commitment to women’s human rights, they often disagree on what constitutes violation and the protection of these rights, whether patriarchy is the main culprit, as well as what to do about it. In addition, those who are the subjects of these rights’ intervention may reframe their own experiences in human rights terms that deviate from and even contradict the understanding of those who speak on their behalf. [...]
Authentic Victimhood and the Nation
“Victim” is the operative word in the new framework for state responses to prostitution as provided by the Punishment Act and the Protection Act passed on March 22, 2004. The introduction of the term “victims of prostitution” marked a new era in state regulation of prostitution in South Korea, as well as a new subject position for women in prostitution to make claims on the state while reinforcing a particular discourse of women's sexuality in the nation.
[...]The new laws continue to criminalize sex workers - since uncoerced engagement in prostitution continues to be a crime. Those who do not qualify as victims - such as women who work in prostitution without debts, or work independently outside of brothels, or manage other sex workers and sell sex at the same time - are criminals. It is significant that this distinction between “victims” and “criminals” existed even in the proposed legislation tabled by the National Solidarity. According to Kim Hyunsun, they did not try to argue for complete decriminalization because Korean society still stigmatized women who sell sex. Creating the category of “victims of prostitution” was a first step to protecting the human rights of women in prostitution. The unsaid was that “prostitutes” would remain criminalized. In fact, the gendered logic of nationalism also ensures that the hypothetical “second step” of complete decriminalization of sex workers is unlikely to happen.
With the introduction of the term “victims of prostitution” and its silent counterpart “prostitutes,” the laws highlighted that only innocent women who have been coerced deserve protection from the state, distinguishing between good women who are worthy of help and the bad ones who need to be punished. The laws thus perpetuate the stigma of prostitution and the virgin/whore dichotomy. The protection offered by the new laws is therefore only for “authentic” victims - whose sexual purity has been violated.
Authentic victimhood has been a well-rehearsed basis for competing claims on state recognition and protection by women who are sexually suspect as prostitutes in South Korea. It is not just a competition of who “suffered most,” but also of who is least responsible for one's own suffering. As figures of female deviance in moral and legal discourses, prostitutes are “fallen women” who need to be contained and regulated, if not criminalized and rehabilitated. As symbols in nationalist discourses, however, they are the rallying points for outcry against foreign encroachment and the struggle for authentic Korean culture.
The figure of the prostitute ravaged by foreign aggressors has been an allegory of the nation's misfortune as a divided and a subjugated nation in literary, political, and activist discourses. Premised on the feminine ideal of purity, the figure invokes a strong sense of honor and dignity lost as well as virtues and propriety violated, engendering the emotional and historical weight of women's sexuality in nationalist imagination. [...]In the absence of foreign aggressors as villains, therefore, women catering to a Korean clientele are conceptually removed from any claims of victimhood. Korean women activists resolve this tension by representing prostitution as a “foreign evil” - a product of military aggression and capitalist patriarchy. In this narrative, prostitution is a product of Japanese colonialism (1910-1945), and then of US military occupation since 1945, subsequently proliferating with the globalization of western sexual mores and capitalism. Cho Young- sook, Secretary-General of the KWAU, stated that “Prostitution was closely related with foreign invasion,” with the “first ?brothel'” established by the Japanese in 1920s and the build-up of “camp town prostitution” for the US military after the war. The prostitute thus becomes an emblem of women's subordination in Korea, bearing the symbolic burden of women's oppression in both nationalist history and capitalist patriarchy. In this view, prostitution is not indigenous to Korean society and culture, and can therefore be purged. [...]
Rights for Good Daughters Only: No Sex Workers Need Apply
The process of redefining the authentic sexual victim simultaneously produces the real whore, reinforcing the boundary between “good” and “bad” women and limiting rights claims to worthy victims whose purity has been violated. Challenges to the laws arose most importantly from the women whom these laws intend to protect. Satisfied neither with being victims nor whores, women in prostitution organized to claim their rights first as citizens, and subsequently as sex workers.
The responses of the women's movement and the state to their claims, however, reveal the goal of restoring a monolithic set of feminine ideals to modern Korea. [...][I]n these mainstream activists' paradigm of women's human rights, women who demand a recognition of their right to work in prostitution are persona non grata who blatantly defy the victim subject endorsed by the women's movement and the new laws. Putatively attributing all claims of sex work by women in prostitution to brothel owners' manipulation, Korean feminists like Cho eliminate the agency of all women to consent to sex work as well as to engage in public protests. On the same premise, Korean feminists have dismissed any reference to “sex work” as a call for state-regulated prostitution, harking back to the system of legal prostitution under Japanese colonial rule. To these ardent women activists, their understanding of prostitution is the truth of prostitution in Korea. Elimination of prostitution is the only way to achieve women's rights because, according to the director of Dasihamkke, the biggest anti-prostitution NGO in Seoul, it is a historical responsibility: “If we don't fight for the criminalization of prostitution, then more young women would enter prostitution. In this perspective, women who refuse to leave prostitution are willful deviants who endanger other women (young women of the future as well as women in general) by perpetuating the institution of prostitution. This perspective leaves intact the historical and contemporary symbolic burden of the prostitute, essentializing prostitution as inherently a form of masculine domination of women and thus an assault on women as a whole. Eradicating prostitution is therefore a project of both restoring “tradition” and enforcing the “modern” - female virtues of pre-colonial Korea and gender equality of a democratic nation-state. [...]
[Cheng goes on to describe the Vernacularized framework of trafficking as giving “the Korean state moral and legislative powers - as the modern state committed to combating trafficking, the democratic state that embrace women's rights, and the benevolent state that upholds traditional virtues” (497).]
Firstly, since the anti-trafficking initiatives focus solely on prostitution, these laws that are supposed to deal with human trafficking are incapable of addressing abuses suffered by migrant workers in other sectors.
The status of illegal migrant workers has generated human rights abuses by both employers and the state. According to an Amnesty International report published in August 2006, at least 360,000 migrant workers were believed to be working in Korea in June 2006. Of this total, 52 percent, were “irregular” migrant workers, most of whom suffered a range of financial and physical coercion. The similar structural vulnerabilities of migrant workers in the entertainment industry, factories, and domestic work have made it possible for employers to withhold salaries, impose arbitrary fines, deductions, and long working hours, and threaten or employ the use of violence. All migrant workers are exposed to potential sexual violence. [...]Secondly, the new laws fail to generate empowering conditions for migrant women to report abuses, as the law turned them into disposable instruments of investigation and prosecution without due protection of their rights. Article 13, “Special Provisions for Foreign Women” in the PunishmentAct, stipulates that those who file reports or are being investigated as victims of trafficking into forced prostitution would be temporarily exempted from deportation in order to file suits and claim damages. They have to leave Korea eventually, usually within three months. No service provision (except for two shelters for foreign women), allowance or work permit is provided. Even if a woman is being investigated as a victim, she would not have any means to make a living during the period of investigation or trial. Even women who have won favourable verdicts may not get damages from clubowners, since they are required to leave Korea. It is doubtful how these migrant victims may benefit from prosecution.
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