The Legislation & Judiciary Committee of the National Assembly broadly agreed on more measures to be included in the laws punishing sexual assault on minors and the disabled, reflecting the public outrage provoked by the movie The Crucible. The Committee had already announced about two weeks ago some points that it will propose to strengthen — those points are covered in this post. The new measures coming from this round of discussion include:
- “Inability to resist” is no longer an element of the crime. This was a particular problem involving the mentally disabled, because the perpetrators have been able to plausibly claim that the disabled did not actively signify her non-consent. Now, as to minors and the disabled, employing any “trickery or threat of force” in the course of unconsented sexual encounter is a sexual assault.
- Statute of limitations is eliminated for sexual assault against minors or the disabled.
I applaud the first measure. I have always found it odious that Korea’s sexual assault law required the antiquated notion of “rendered unable to resist” as an element of the crime, and I am glad to see it go away. In fact, I hope that goes away for all sexual assaults.
On the other hand, I am very troubled by the elimination of statute of limitations, which is seven years under the current laws. I might have been ok with making it, say, ten years, or providing for more generous tolling rules. But eliminating the statute of limitations is a step too far. No one can discern the facts with reasonable certainty when those facts largely depend on dueling testimonies that rely on a memory that may be 20, 30 or 50 years old. With a very old case, the trial essentially becomes a lynching, where a mob inflamed by salacious allegations deprives the defendant of any sliver of a chance at fair trial. Nor does a longer statute of limitations help lower crimes — if anything, it hurts criminal enforcement by increasing the case load for the police and the prosecutors.
At least the Committee resisted the temptation of mandatory minimum sentences, which is somewhat of a positive news.
{ 21 comments… read them below or add one }
unconsented? It should be a sexual assault whether the minor consented or not.
Agreed, provided there’s a certain age gap: i’m not sure an 18 years old having sex with a consenting 15 years old should be sent to the slammer, while a 30 years old doing that…well i’d happily throw him (notice i said him) in the crocs ditch
You mean, like the matters of the comfort women and Dokdo?
The existence and treatment of Comfort Women are contemporaneously documented. You know as well as I do that at this point, the controversy about Comfort Women is about the law, not about the facts. Also, it is not as if Koreans are demanding that the Japanese are put into prison as if they themselves committed rape — the demands are about proper reparations and historical recognition.
I will reserve judgment on Dokdo, since I never cared enough to study the issue.
I need to respectfully disagree with TK on this one. If the only reason for disfavoring a SoL for rape cases is concern over faulty memories, then why have SoL for any other crimes that involve witness testimony years if not decades after the incident?
Reputable judicial systems — if they’re truly worthy of the name — are more than capable of adequately evaluating the credibility of witness or claimant testimony regardless of whether it comes right after a crime has been committed or years later.
Instead, I’d say the real concern in rape cases is less faulty memory than manufactured testimony. But again, that’s an evidentiary evaluation problem, not a SoL problem.
After all, there is deep truth in what every lawyer learns in law school, to wit, that “SoL” stands for both “statute of limitations” and “shit outta luck.”
Rape victims deserve better.
DLB
I respectfully disagree. A judicial system, however reputable, is incapable of adequately evaluating the credibility of witness with significant lapse in time, particularly with a charge as inflammable as rape, simply because of human tendency for error.
If people care at all about constitutional rights for criminal defendants, this passage should give you chills:
Sexual assault is a particularly difficult crime to establish the factual circumstances, given that in most cases sexual assault occurs with the perpetrator and the victim being in isolation, with little physical evidence available. Like I said in the OP, I am all for making sexual assault prosecution easier. But doing away with SoL in a sexual assault case entails a huge risk of injustice.
TK,
I completely agree that witness misidentification is a HUGE problem in any judicial system, and one that does not receive anywhere near the attention it deserves. On that score, you are completely correct.
My issue, though, is with the arbitrariness of limiting SoL in rape cases but not other violent crimes.
If I changed your last paragraph above to read: “Murder is a particularly difficult crime to establish the factual circumstances, given that in most cases murder occurs with the perpetrator and the victim being in isolation, with little physical evidence available.” Would that same construction warrant abolishing the SoL in murder cases? And if not, why not?
Consider further that in rape cases, there is a surviving victim, and one who presumably witnessed the perpetrator up close. Add to that fact the harsh reality that in most rape cases, the victim not only can id the rapist, but often actually knows him!
Indeed, the real problem with SoL for rape is that it often takes years for the victim to get the psychological courage to name the rapist, who may be a family member, step-father, classmate, teacher, co-worker, boss, priest…well, you get the idea.
The issue of witness misidentification is a serious one, but not one that warrants blocking all rape cases — regardless of the credibility or existence of other evidence — simply because of the passage of time.
Again, rape victims deserve better.
DLB
DLB
Still doesn’t address occasion where the assault might well me contemporaneously recorded, i.e injuries recorded evidencing resistance and dna proving the presence of the perp, but just weren’t able to identify the perp at the time.
This confuses me. You seem to be in favor of abolishing SoL, but here you seem to be advocating for maintaining SoL. Which is it? At any rate, I am opposed to abolishing SoL in any crime, including murder. The only exceptions I might make are war crimes, crime against humanity and the like, which are not a national criminal law issue at any rate.
In that case, I am ok with tolling the SoL until the perp is identified.
TK,
There shouldn’t be any confusion. For the record, I’m against statutes of limitations for any violent crime, including rape.
Some of the most poignant stories involving this issue involve the utter lack of criminal redress that victims of child rape by their family priests have against their rapists. These are cases that are both credible and corroborated by other victims, yet because of SoL provisions codified in the penal codes of state after state, these victims have no recourse whatsoever within the criminal justice system.
And there is nothing “just” about it.
Cheers,
DLB
I think a statute of limitations is especially problematic in such cases because often victims don’t have the measures or courage to take action until they’re well into adulthood. In the case of institutional abuse, often victims don’t find out that they weren’t the only one and that there is evidence available until much later. Just look at the case of residential schools in Canada.
DL kind of brought up the question I wanted to ask. As far as I know, there is no statute of limitations for murder in the US, but there is in Korea (20 years if I recall?). Why would they eliminate the SoL for sexual assaults but keep the one for murder? I wonder if it’s only because of the movie, without any interest in the actual justice process.
I’m with DLB on this one, Should be no SOL in major crimes.
So it’s okay for a 30-year old middle school teacher to fuck her (notice I said her) 13-year old students?
I would question these lawmakers.
25 years, actually.
Your query is correct. Initially the Committee resisted eliminating SoL, and one of the reasons was exactly what you said — they had to consider other major crimes with SoL. But in the end, they bowed to the public pressure.
In my book a 13 years old is still a child, anybody, male or female, touching a child, male or female, should go straight to the crocs.
I would also say that an adult man can inflict way more psychological and physical abuse toward a 15/16 year old girl than an adult woman toward a teenage male in the same age range.
I remember the case of the Korean teacher who fucked her 15 years old student, what i would have done ? Fire her and if husband filed for divorce i would have granted custody of their child to him, but not jail time: do you really wanna put on your penny some braindead slut probably making some equally braindead teen extremely happy ?
After all these years of Korea being so slack against sex crimes any kind of additional measures are good. Whether they be considered extreme or not. I’d even support an ‘eye for an eye tooth for a tooth’ kind of punishment.
Hmm, the Deliverance approach….
So you mean send them to prison in the US!
Wow – just thinking and reflecting up this very topic makes me sick – the sexual assault of minors and disabled…man.
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