ZAGADNIENIE PRZEDMIOTU OCHRONY PRAWNOKARNEJ W PRZYPADKU PRZESTĘPSTW EKSPLOATACJI PROSTYTUCJI
CRIMINAL-LAW PROTECTION OF SOCIAL VALUES IN CASES OF PROSTITUTION EXPLOITATION OFFENCES

Summary/Abstract: The doctrine and court ruling generally indicate two values that are endangered by the so-called sexual offences: sexual freedom and decency. These values, in particular, have been defined by the legislator as specific and requiring protection under the criminal law (Chapter XXV of the Criminal Code). There is no doubt that an individual’s sexual freedom should be protected by law. But in case of the protection of decency, the question arises if criminal law should be employed to protect this value. Arguments for the criminal nature of indecent behaviour include either additional values (e.g. proper family relations, well-being of the child) or emphasise the ethical aspect of rules of decency. Nevertheless, the problem whether such norms should be protected by criminal law is debatable. For this reason many representatives of the doctrine postulate that the legislator should reduce its legal interference in people’s sexual lives. For many years there has been a debate if offences like dissemination of pornography or exploitation of voluntary prostitution should be depenalised; the latter (penalised under Art. 203 Clause 1 and 2 of the Criminal Code) generally regarded as posing no threat to any individual. If an act of prostitution is committed voluntarily, an individual’s sexual freedom is not endangered. Thus, a person making a profit on third party’s prostitution merely violates the rules of decent behaviour. An interpretation of the law made in accordance with the Constitution creates new meanings of the legal norms. In particular, such an interpretation should consider that one of the basic values guaranteed in the Polish Constitution is the dignity of the individual. In my opinion, there are persuasive arguments that exploitation of prostitution violates this specific value. This is the case even if a prostitute has voluntarily committed an act of prostitution without having been forced by anybody.

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