Although I believe that it is better to have a more lenient criminal law (particularly sentencing,) Korea’s laws on rape and sexual assault were far too lenient enough to shock the conscience. Fortunately, there are some positive developments in laws on rape and sexual assault.
First, thanks to the awareness raised by the movie The Crucible, the Prime Minister’s office announced that sexual assault against the disabled will no longer be an “offense subject to a complaint.” [친고죄; translation is mine and not official.] OSTAC is a feature of the Civil Law (Continental Law) system, where a crime is prosecuted only if the victim wants to press charges. Many types of sexual assault fall under OSTAC, which means the assaulter is charged only if the victim wants to press charges. In my estimation, nearly all outrageous sentencings for sexual assault arise from the fact that sexual assault is an OSTAC. It is particularly outrageous that sexual assault against a disabled is an OSTAC, because the disabled person is often not in a position to have the willpower and resources to follow through with pressing charges or give a full informed consent on a settlement.
(You might wonder why having OSTAC for any crime is a good idea, because it usually leads to criminal settlement, unfairly maligned as “blood money” around these parts. For that, read this post on AAK!.)
Well, that is no more. Under the new proposal, sexual assault against the disabled will no longer be an OSTAC. Also, even the first-time offenders will get a position-tracking ankle bracelet, which is usually reserved for repeat offenders. The minimum sentence for rape against the disabled was enhanced from 3 years to 5 years. I would like to eventually see all forms of sexual assault (other than sexual harassment) be a non-OSTAC crime, but this is progress.
Second, in the infamous Korea University Medical School sexual assault case, both the defendants and the prosecutor appealed. It is highly unusual for the prosecutor in this situation to appeal, since not only did the prosecutor win, but also he won by a huge margin — the court actually sentenced one of the defendants to a longer prison term than the prosecutor recommended. Apparently this is a litigation tactic from the prosecutors. By rule, unless the prosecutors cross-appeal, they cannot recommend a higher sentence. By cross-appealing, the prosecutor’s sentencing recommendation can take into account any “secondary damage” arising out of the defendants’ appeal, including those caused by an “insulting line of questioning” by the defendants.
This is a delicate line for the prosecutors to tread, because they are pretty close to looking like they are punishing the appeal with the potential of a longer sentence. But on balance, I appreciate the the prosecutors’ aggressiveness on this case.
{ 16 comments… read them below or add one }
Thanks for that detailed rundown. However, according to this op/ed, these recent measures don’t go far enough. According to the op/ed, the idea of time period in which authorities can bring charges in these sorts of cases needs to be abolished (공소시효 폐지).
Thoughts?
The technical term for that is called “Statute of Limitations.” And I think eliminating the statute of limitations is a step too far.
Criminal justice must operate based on the facts. And sexual assault cases are particularly difficult because the facts are almost always in the form of two dueling testimonies without much other physical evidence or corroborating witnesses. That’s why we have SoL — people lie and memories fade. After some point in time, it’s impossible to determine the facts to a reasonable certainty.
This is even truer in a case that involves a disabled person, whose mental faculties are frequently not as strong. And the current SoL is seven years. That’s a long time. I don’t think going from seven years to unlimited period of time would be wise.
That’s what I figured. Wasn’t sure on the translation.
That’s what I think to with regards to say eliminating the statute of limitations. However, and not to keep pestering you with this, but any thoughts with regards to extending the time period on the statute of limitations? According to the op/ed, the current statute of limitations is set at seven years. Couldn’t it be feasible to say doubling it (14 years) and still reasonably ensure “determin[ing] the facts to a reasonable certainty”?
The SOL issue is truly a tricky one, and one that, at least in the U.S., states have wrestled with for years.
In California, for example, the SOL for rape actually depends on the nature of the crime. Penal Code § 264 (for aggravated rape) is punishable for life with no SOL, with prison terms of three, six, or eight years. Likewise, penal code § 799 (offenses punishable by death or life imprisonment w/out parole) can also be commenced at any time.
In contrast, offenses punishable by imprisonment for eight or more years have to be brought within six years of the rape (§ 800), and offenses punishable by imprisonment in state prison must be brought within three years (§ 801).
The best argument AGAINST a statute of limitations for rape is DNA evidence, which does not depend on the memories of the victim or eye witnesses.
As for the OSTAC itself, recall also that even in the U.S., as a practical matter, DAs are VERY reluctant to bring rape charges absent the willing cooperation of the victim.
DLB
No pestering — I’m a huge law nerd and I love talking about the law.
I think I will be ok with a small increase in SoL — probably up to 10 years. I can’t really give a good reason though — line-drawing is always tricky and, on some level, completely arbitrary. But I do feel pretty strongly that SoL has to be there.
A possible way around it is not increasing the SoL, but making the SoL tolling easier. SoL is “tolled” to the extent that the plaintiff is not free to bring the suit. (E.g., if a child has been kidnapped for 5 years but the SoL for kidnapping is 3 years, the child has three years AFTER the kidnapping is over to bring the suit because the child cannot possibly bring the suit while being kidnapped.)
So take the 도가니 case for example. We could make it so that we toll the SoL during the time when the students were still attending the school, or until the whistleblowing teachers made the affair public.
Indeed. Makes me curious about how they came up with the current SOL.
That’s an interesting idea (speaking as a layman).
What is the situation where the evidence is sufficiently recorded but merely the perpetrator cannot be found/caught.
The other problem I HOPE THEY FIX, is that many of the disabled who are raped/etc are under age – and the guys doing it have been basically getting off scott-free.
That’s why we have SoL — people lie and memories fade.
Not just “fade” — that’s actually a pretty dangerous metaphor there, since it seems to support the overwhelming popular misconception that the vividness and accuracy of a memory have a strong positive correlation. More likely, what happens to a memory of a traumatic event is that it gets regularly retold to family and friends, molded to fit the subject’s own psychological needs, intruded upon by bits and pieces from the accounts of other assault survivors, news reports, movies, etc. 7 versus 14 years, Charles? Seven years is already way, way too long to trust the veracity of details from someone who’s experienced a traumatic event. This is why it’s so crucial to have highly trained and well-documented debriefing done early, before a set of information in memory has gotten to be “my story”.
…… statistics showing that through the first half of 2011, there had been 217 trials for sex offenses committed against victims 13 years of age or younger, and 94 were sentences of probation. That was more than the 82 who received prison or another type of confinement.
The other 41 ?
That is a very important point, and I agree that the “fade” metaphor was careless.
My understanding is that the SoL simply runs out in such a case.
“The other 41?”
Maybe were found not guilty?
Why are the papers reporting that the 18 year old that was raped was underage? I could have sworn I read that 14 was the age of consent here.
If the SoL runs out, you’re SoL.
then there shoukd be no SoL
공지영 and 황동혁 are Koreans of the century as far as I’m concerned. Hopefully the public outrage and resulting legislative pressure and action will continue, and not flame out as hot topic stuff tends to do when the next issue of the day pops up. The Na-yeong case a couple years ago provoked similar outrage, but didn’t seem to have much lasting effect.
And yes, the SOL regarding sexual abuse of minors in particular is a difficult balancing test. The argument for longer SOL generally has to do with the fact that young children are easily manipulated or intimidated into silence. It’s often not until they reach puberty or later in maturity that they have the mental capacity and awareness to feel confident enough to come forward, at which point the SOL has often expired.
Of course the longer the SOL, the less reliable the evidence generally is, as has been mentioned. It’s also worth mentioning that a lot of abuse of long SOL came in the 80s and 90s with a string of “repressed memory” cases, in which adults were led by unscrupulous psychiatrists with agendas (as well as corrupt DAs who shared their agendas) into “remembering” childhood abuse that in most cases, never occurred.
maybe dismissed for lack of evidence ?
The problem is less pronounced where there’s some kind of societal control around the kids: now i’m not advocating for a social worker police state, but it always leaves me perplexed when i hear of cases of kids abused for years: no neighbour, no teacher, nobody noticed any physical and/or emotional problem with the child ? Kids noawadays one way or the other are scrutizined by many people everyday, and yet often everybody fails to notice horrific shit
You must log in to post a comment.