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Major overhaul in sex crime laws

While I have been generally a fan of Korea’s criminal law, a major exception to my fandom was Korea’s laws against sex crimes. But thanks to recent high-profile movies and news stories regarding sex crimes, there was a significant overhaul of the laws against sex crimes that addressed pretty much all of the common grievances.

The biggest change is that all sexual assaults are categorized as public crime. Previously, rape or sexual assault against adults were categorized as direct-action crimes [친고죄] or no-prosecution-contrary-to-intent crimes [반의사불벌죄], which meant that a private settlement precluded criminal prosecution. This meant that, previously, the perpetrator often applied undue pressure — which often bordered on extortion or blackmailing — on the victim, attempting to settle the case so that criminal charges may be avoided. After this amendment, this is no more. Another big change is to include adult men as a potential victim of sex crimes.

Penalties were also strengthened across the board. Previously, rape of a minor carried a maximum of 25 years in prison; now, a life sentence is available. The minimum sentence against sexual assault of a minor was raised from 3 years in prison to 5 years. Penalties against creating, distributing or possessing child pornography were also significantly enhanced. Also, statute of limitations against sexual assault against minors was abolished. (Previously, only rape against minors was exempt from statute of limitations.)

The diminution of mens rea based on intoxication — more commonly known as “I was drunk” defense — is no longer available as a grounds for reducing the sentence as to all sex crimes except for distribution of pornography. Sex offender registry is now easier to access, and sex offenders are excluded from a greater categories of occupations. (One notable inclusion is entertainment agencies, to protect aspiring entertainers.)

  • holterbarbour

    If we’re going by Article 243 of the Criminal Code (which covers any type of distribution of pornography, including sales to adults), then I’m not sure what’s sillier: the “I was drunk” defense remaining at all, the wholesale (as it were) ban on distributing pornography, or the fact that the “I was drunk” excuse is applicable just to that one offense. I expect there are some reasoned policy considerations behind these, but they’re not readily apparent. TK, any theories?

  • keyinjpop

    Woohoo, Korea is making progress.

  • gbnhj

    This is some really welcome change. Still, I also think that a alcohol-related mens rea defense on the distribution – but not the purchase, or the viewing – of pornography is a bit odd. I’d love to know more about the thinking there.

  • http://www.zenkimchi.com/FoodJournal ZenKimchi

    When’s RedTube coming back?

  • http://geoju.kr fanwarrior

    are the going the american route of having someone who gets drunk and takes a leak in the bushes registered as a sex offender and be required to live under a bridge in the middle of the river?
    We can’t really see they’re moving forward until they get on board with that….

  • Hamilton

    fanwarrior, is that the story you tell your family about how you were registered? I just ask since it isn’t possible in “evil hard on poor sex offenders” America.

    Public indecency is all you will get even in the bible belt, so do tell….

    The only problem someone should have on a sex offender is IF they were wrongly convicted which is pretty slim.

  • http://geoju.kr fanwarrior

    It’s quite possible since public urination is sometimes charged as indecent exposure which gets you on the sex offenders list.

    https://www.thegopilot.com/public-urination-indecent-exposure-sex-crime-register-as-sex-offender/

    try educating yourself rather than sitting there embarrassing yourself in ignorance.

  • jkitchstk

    “Another big change is to include adult men as a potential victim of sex crimes.”

    So, as of yet no Korean male has ever been charged with “sexually assaulting” another man simply because a Korean man couldn’t ever to that. To make is simple(or sound better) a Korean man who did that only “assaulted” the victim.

  • http://askakorean.blogspot.com thekorean

    TK, any theories?

    Only theory I can offer is: this is what happens when a free-standing legal system is externally imposed upon a country instead of growing organically to respond to the country’s needs.

  • DLBarch

    I will leave to others whether one can be a fan of Korea’s criminal justice system while its Prosecutors’ Office so often resembles a bad episode of “The Sopranos,” but I’m glad at least two people share this view:

    http://www.legaltimes.co.kr/view.htm?kind=menu_code&keys=3&UID=17968

    Now, let’s see what, if anything, actually changes after Dec. 19.

    DLB

  • Hamilton

    FW, maybe you should read your own link. The one example you have is heresay and didn’t result in a sex registration.

    “Those that were already charged using the old law have to hire an attorney and go to court and request relief from the registry. ”

    Sooooo if you illegally piss in public and get caught you will have to hire a lawyer to get it reduced…..FW even your own example is full of holes.

    Here’s an idea, if you can’t find a toliet take a 2 min walk into the woods before you pull it out instead of just standing next to your car like an idiot and pretending the car loads of people nearby won’t see you.

  • jkitchstk

    “While I have been generally a fan of Korea’s criminal law”

    Why, because “You cannot rape your wife”?
    http://www.occidentalism.org/?p=2088

  • holterbarbour

    TK, if these changes have been externally imposed upon Korea, what external influences were at work here? Would the country’s needs have been better served without such changes?

  • Anonymous_Joe

    Also, TK, you wrote,

    “I have been generally a fan of Korea’s criminal law”

    Then in response to head scratching statutes unique to Korean law, you wrote

    “…this is what happens when a free-standing legal system is externally imposed upon a country instead of growing organically ….”

    So which parts of Korean law that were not imposed externally are you a fan of and for that matter how can you be a fan of Korean law?

  • http://askakorean.blogspot.com thekorean

    TK, if these changes have been externally imposed upon Korea, what external influences were at work here? Would the country’s needs have been better served without such changes?

    The foundation of modern Korean law is the Imperial Japanese law, which Imperial Japan imposed on its colony with exactly zero regard to Korea’s needs. The particular point about voluntary intoxication reducing the mens rea is a remnant from the Imperial Japanese law — which is essentially the Civil Law of the late 19th century. (As a data point, in the late 19th century, it was also commonplace within the American law to have voluntary intoxication reduce mens rea.)

    Obviously, as a Japanese colony, Koreans never had the chance to shape the law in a way that responded to their needs. Even after independence, Korea’s history was too tumultuous for its legislature to function in a normal, democratic manner that responded to Korean people’s needs.

    As to the counterfactual — to me, it is the same question as, “Would Korea have been better off without the Japanese occupation?” And my answer is obviously yes. But one way or the other, Korea needs a modern legal system. As Korean democracy matures, it will shape and adapt its legal system based on its needs.

    So which parts of Korean law that were not imposed externally are you a fan of and for that matter how can you be a fan of Korean law?

    I don’t understand the first part of the question — I don’t think I ever distinguished my preference as to the “external” part of Korean law versus the “native” part. At any rate, I am a fan of Korean law because I am a fan of Civil Law generally. Everything about it is just so much more rational and orderly, particularly with respect to procedures.

  • http://askakorean.blogspot.com thekorean

    To elaborate a bit more on HB’s question: a Korean judge once told me that Korean law is less about the letters of the law, but the execution of the law by the academia and the justice system. This is precisely because the letters of the law never really corresponded with Korean people’s day-to-day life to begin with.

    So for example, Korean civil law [민법] does not have a separate corpus for agency, unlike the Common Law. Instead, the concepts of agency are scattered across different parts of 민법, such as 물권법 and 채권법. As a Common Law attorney, this confused the hell out of me, especially because the concept of agency is so crucial in commercial law. (How the hell would one purchase products through intermediaries without the benefit of the agency law?) But the judge told me that, when a Korean law professor teaches the law, s/he would collect those scattered concepts and teach a module as if s/he was teaching a course on agency, exactly because agency law is so crucial in commercial law. Likewise, parts of the law that are not as crucial — prohibiting the distribution of porn, for example — are not really focused on, and are laxly enforced.

    It is as if the entire Korean society is wearing a giant suit that was purchased off the rack, such that a lot of parts simply do not fit. And it has really only been about 25 years — since 1987 — that Korean democracy has been able to mend that suit, part by part. Until the suit fits, Korea will have to make do with safety pins, rubber bands and duct tape.

  • jkitchstk

    “Everything about it is just so much more rational and orderly”

    You mean the part that shows S. Korean prosecutors proportion of guilty verdicts vs. not-guilty verdicts at what 99% and 100% vs. foreigners?

  • http://askakorean.blogspot.com thekorean

    Don’t you have some little boys to molest?

  • Anonymous_Joe

    #17 jkitchstk: You mean the part that shows S. Korean prosecutors proportion of guilty verdicts vs. not-guilty verdicts at what 99% and 100% vs. foreigners?

    I realize (hope) that you are exaggerating, but do you have some statistics as to the real numbers? Does anyone?

    How about prosecutions proportion of guilty vs. not guilty overall in the Korean court system?

    I heard that the cultural and Confucian Order biases inherent in the Korean court system effectively lead to a presumption of guilt once a defendant is brought to court. The purpose of the court proceeding is then for the defendant to show contrition to mitigate the punishment.

  • http://geoju.kr fanwarrior

    #11 any time you need some reading comprehension lessons or anything like that, you just let me know:
    ” After 4 hours, we met THREE MORE men who were CURRENTLY ON the sex offenders list for similar reasons….PUBLIC URINATION!”

    That’s 3 examples, and one guy who spent $14,000 having to make sure his name didn’t end up on there.

    I guess the embarrassing ignorance is something systemic with you, probably can’t be helped.

  • Hamilton

    #20, The embarrassing ignorance is yours.

    Um…no, some guy says he knows three guys on the sex registry list but just happens TO BE PROMOTING A PORTABLE URINATION SYSTEM doesn’t work for me.

    What you implied is that in the US simply taking a piss in the woods will get you on a sex registry list and it won’t.

    If you are stone drunk and pissing in plain sight it might, if you also are belligerent with the police or if you traumatized someone nearby but you can still get that reduced if there was no intent and if you pay an attorney.

    The reason that indecent exposure is on the list as a sex crime is that some sick individuals deliberately expose themselves for a sexual kick and that is a sex crime but you were just relieving yourself at the circus and didn’t see all the children right?

  • http://bcarr.com Brendon Carr

    How about prosecutions proportion of guilty vs. not guilty overall in the Korean court system?

    Conviction rates in Korea approach or exceed 99%. It’s no exaggeration. However, this is partly explained by the extreme caution exercised by the prosecution in cases where the accused is not a foreign investment fund or foreign-invested company, in which case the prosecution frequently brings charges with flimsy evidence as a sop to “public sentiment”. Korean prosecutors do not bring charges in cases where there is a chance they might lose (again, unless the accused is a foreign investment fund or foreign-invested company).

    But take a look at US conviction rates. They, too are quite high — approaching 95%.

  • http://geoju.kr fanwarrior

    #21, right, you were ready to accept it when you thought there was only a single example due to your inability to read complete paragraphs. Otherwise, why wouldn’t you have brought that up before and insisted there was only 1 example?

    Now you’re digging, looking for a way out.
    I never suggested pissing in the woods, I suggested the bushes.

    How about the Economist:
    http://www.economist.com/node/14164614?story_id=14164614&source=hptextfeature

    I really should charge you by the hour. I provided you with a quick and dirty example, the staggering ignorance here and inability to go “hmm.. maybe I should educate myself because I clearly don’t have a clue what I’m talking about”

    ” At least 13 required it for urinating in public (in two of which, only if a child was present). No fewer than 29 states required registration for teenagers who had consensual sex with another teenager.” Yeah no, America really has this whole registry thing in the bag. No problems at all.

    ” One rule, championed by Georgia’s House majority leader, banned them from living within 1,000 feet of a school bus stop. This proved unworkable. Thomas Brown, the sheriff of DeKalb county near Atlanta, mapped the bus stops in his patch and realised that he would have to evict all 490 of the sex offenders living there. Other than the bottom of a lake or the middle of a forest, there was hardly anywhere in Georgia for them to live legally.” In Georgia luckily the courts stepped in and stopped that, but in other states, I believe Florida, I’d have to look again, there is one town where the only place they can live is under a bridge.

    Or how about this guy:
    http://www.iowastatedaily.com/opinion/article_d875ef46-bac6-11df-8257-001cc4c03286.html

    There are many states who will still nail you with indecent exposure for public urination. Yes, maybe if you can afford a high priced lawyer, you can get it changed, but the fact is they still do it, and quite regularly. There was another mention (news site went 404 on the actual story) of an elderly woman who had bladder issues and was going to be charged as such until there was a public out cry.

  • Hamilton

    #23,

    Still waiting for something other than endless strawmen arguments from you.

    So, a lady was almost arrested huh? But she wasn’t right? Minors having consensual sex huh? Isn’t that a little different than public urination? Not to your limited intellect, sex and urination are the same, you need help.

    Point 1: Here it is again for your limited intellect. Public urination is illegal, I and the public don’t want to see your d*ck in public so hike it into the woods or plan out your road trips a little better than your arguments.

    Point 2, don’t call the policeman a pig when he asks you what you were doing. Apologize and tell him it was an emergency and I’m 99% sure you will walk off with a warning. 1% sure you will beat it in a court if there was no intent.

    Keep defending jerks pissing off the side of the road, then giving the cops a hard time and too cheap to pay for a lawyer.

  • Anonymous_Joe

    BC thanks for the info on Korean prosecutorial success rates. I did a quick google for US success rates. From Wikipaedia,

    The conviction rate of a prosecutor or government is the number of convictions divided by the number of criminal cases brought. Japan has a conviction rate that exceeds 99%, which has been attributed to low prosecutorial budgets impelling understaffed prosecutors to present judges with only the most obviously guilty defendants.[1] In the U.S. federal court system, the conviction rose from approximately 75 percent to approximately 85% between 1972 and 1992.[2] The conviction rate is also high in U.S. state courts. Coughlan writes, “In recent years, the conviction rate has averaged approximately 84% in Texas, 82% in California, 72% in New York, 67% in North Carolina, and 59% in Florida.[3]

    Based on my experience, which were of course non-criminal, in going against government entities, I (for no better reason than just because) figured the prosecutorial success rate at 60%.

    Of course, the overwhelming majority in the U.S. are plead out, which results in a conviction. Korea’s system of blood money (hapuigeum) results in settlement without conviction. Does Korea also have a plea bargain system?

  • http://geoju.kr fanwarrior

    #24 Are you really this clueless in real life? These are things that happened not strawmen:
    The lady was not almost arrested, she was arrested, charged and they full intended to prosecute her and put her on the sex offenders registry until people got upset about it

    A guy took a leak in the alley and he was put on the registry and had his kids taken away.

    Are you purposefully ignoring the parts about public urination:
    “At least 13 required it for urinating in public (in two of which, only if a child was present)”

    Those are states where if you’re caught urinating in public you end up on the sex offenders registry exactly as I said. Specifically for public urination and not even indecent exposure. There are other states where on top of charging you with public urination will also charge you with indecent exposure and you’ll end up there as well.

    As for living under the bridge as I said:
    http://en.wikipedia.org/wiki/Julia_Tuttle_Causeway_sex_offender_colony

    http://www.hrw.org/news/2007/09/11/us-sex-offender-laws-may-do-more-harm-good
    “Because registration requirements are overbroad in scope and overlong in duration, there are more than 600,000 registered sex offenders in the US, including individuals convicted of non-violent crimes such as consensual sex between teenagers, prostitution, and public urination, as well as those who committed their only offenses decades ago.”

    http://nyaltnews.com/2012/04/sex-offender-laws-broad/14637/
    “Currently, anyone convicted of any type of sex crime, from public urination to child molestation, is placed on the list.”
    You get the part there about public urination or do you need someone to draw you a picture?

    That’s all the proof you need. I claimed it happened, you didn’t, I provided you with the cold hard facts that it is on the books and happens in the US. You want to spend your time spinning your wheels playing the village idiot be my guest.

  • Hamilton

    #26 Fanwarrior,

    My grasp of real life is much better than yours. Democratic societies shape the laws of their communities, if a law is deemed by a majority or even a really noisy minority then it will be changed.

    Here’s how you don’t get on a sex registry list reprinted since you are a slow to no learner:

    Don’t wave your d*ck around in public and you won’t end up on any list. (and for your strawman arguements, don’t have sex in public especially not in a high school class room, and if you are blind drunk look around for the policeman in arms reach before whipping it out)

    Don’t call the police names when they ask what you are doing instead appologize and you will most likely get a warning.

    Finally, if on the slim chance they still charge you then hire an attorney and you will get off if you haven’t done something else incredibly stupid.

    Of course if you can’t be bothered to show up for your court appearance, or are also a repeat offender then I’m pretty sure you will end up on a list.

    So are you living under a bridge?

  • http://geoju.kr fanwarrior

    You seem to forget how you entered this discussion:
    “I just ask since it isn’t possible in “evil hard on poor sex offenders” America.

    Public indecency is all you will get even in the bible belt, so do tell….

    The only problem someone should have on a sex offender is IF they were wrongly convicted which is pretty slim.”

    Let’s go through this:

    “I just ask since it isn’t possible in “evil hard on poor sex offenders” America.”
    This is a lie. 13 states put you on the list for public urination, others will simply take on public indecency

    “Public indecency is all you will get even in the bible belt, so do tell….”
    This makes no sense, since public indecency is what will get you on the list in just about every state, and as pointed out 13 states will put you on the list for public urination without public indecency

    “The only problem someone should have on a sex offender is IF they were wrongly convicted which is pretty slim.”
    This is a lie. 13 states put you on simply for public urination.

    So you started this with 2 lies and a statement which doesn’t make sense in the point you’re trying to make. They’ve both been proven lies, and you’ve switched now from “it isn’t possible” to “don’t take your junk out in public”.

  • Hamilton

    FW,

    Nope, taking a piss in the woods will not get you registered as a sex offender. Your central thought is the lie.

    Publically exposing yourself, berating the cops, not showing up for your hearing and not hiring an attorney will.

    Here’s the idea you just can’t understand; Don’t do illegal things. If you really got to do it then go to a community that that allows it.

    I’m not sorry you live under a bridge.

  • http://geoju.kr fanwarrior

    Tell me where I said woods.
    go ahead, we’ll wait.

    public urination = sex offender list, 13 states.
    hard facts.

    But please, carry on the village idiot act is really entertaining.

  • Hamilton

    FW,

    Does the ankle monitor make you feel less of a man? I think it does as well.