For the curious, the revision to the Criminal Act , which is stated to be due to the Nth Room case, has two revisions to Article 305 (clauses 2 and 3): The first clause, making sex with someone under 13 a crime [or, rather, it refers to a number of other articles that punish sex crimes], is left unchanged. The second clause stipulates that only people over 18 will be punished for committing such a crime with someone aged 13 to 16. (The punishment is not changed and seems to be ‘at least 3 years.’) The third clause stipulates that those who plot to carry out a variety of sex crimes will be sentenced to 3 years or less in prison.
As well, one of the revisions to the Act on the Protection of Children and Juveniles against Sexual Abuse removes the statute of limitations for statutory rape crimes.
This is a topic that I've dealt with before, as has the Grand Narrative; our posts here, here and here are good places to start when considering the topic. What needs to be made clear is that up until 2010, it was never really made explicitly clear in the media that Korea's age of consent was 13. As pointed out in my post, what prompted that discussion was not one in a long, long (long) series of cases of men (sometimes teachers) taking advantage of girls in their early teens, but rather a case in which a married female middle school had sex with one of her 15 year-old students. Despite public outrage, there was nothing to be done because the student was over 13 and consented. (She was fired, of course, and photos of her and her personal information was spread throughout the internet - par for the course for women who need to "learn their place".)
A few days later, GNP Rep. Lee Eun-jae argued during a parliamentary audit of the Ministry of Justice that the current law, which allowed an adult who has sex with a "woman" who is 13 years of age or older to not be punished as long as she consented, needed to have its problems with age and gender standards improved. She pointed out that, while sex with those under 13 was "unconditionally punished," sex with teenagers was only punishable if it was determined to have been paid for.
She also stated that "This means that if you are 13 years of age or older, you have the right to 'sexual self-determination.'" "Compared to other countries, Korea allows teens far too much sexual self-determination." Needless to say, this is a rather different interpretation than that which perceives the law as allowing for the exploitation of teens by older men.
A perfect example of this came two years later and highlighted the fact that sex with those under 13 was not "unconditionally punished" at all. This was because it was considered a "chingojoe offense," a kind of offense which "could not be prosecuted without a complaint by the victim." In December 2012, a 29-year-old Gangneung elementary school teacher was found to have had sex with his 12 year-old student, but because she said she loved him and "wanted it," "police couldn't bring any charges against the teacher because she didn't want him to be punished." In fact, that loophole was on its way out because weeks earlier the National Assembly had "approved a revision to the Criminal Law, under which all sex offenders will be prosecuted regardless of whether there is a complaint from their victims," but it was not set to come into effect until mid 2013.
Though he appeared to be safe from prosecution, a month later it was reported that it was discovered that he had also had sex with another of his former elementary school students (when she was 15), and she was arguing that it was not consensual, making it possible for police to charge him. I don’t know what the outcome of that case was, however.
When the new laws or revisions (some 150 of them) came into effect in mid 2013, there were several positive changes. There was no longer a need for victims to complain before charges could be filed, the statute of limitation for rape and murder of children aged 13 and under was ended, and a revised law extended the range of victims and used the word “person” rather than “female.” Oddly, however, despite the aforementioned suggestion by Rep. Lee Eun-jae to change the age of consent in 2010, and Rep. Kwon Seong-dong's reported attempt to change the age of consent to 16 in 2012, this was never done, suggesting a lack of interest in the matter.
In 2015 blogger Klawguru wrote about the age of consent and how two different laws that could be applied to such cases complicated matters; two years later he noted a third law that could possibly be applied.
The change in laws did seem to have a positive effect, however. For example, this case occurred in August 2017:
A female teacher was arrested for having sex with her elementary school pupil, the Gyeongnam Provincial Police Agency said Tuesday (Aug 29). The teacher, 32, allegedly had sex with a 12-year-old male student in the classroom and her vehicle. She is charged for underage rape and molestation. The case was reported to the police by the student's parents, who found half-naked photos of the teacher on their son's mobile phone. The teacher testified to the police that their sex had been consensual and the two had developed a mutual liking for each other.Still, one wonders if the zeal the police had to arrest her had anything to do with her gender. To be sure, leniency in the courts (particularly toward men who commit these crimes) is a problem, despite changes in the laws. In June 2019 the Seoul High Court handed down a three-year jail term to a cram school teacher surnamed Lee, 35, who had had sex with a ten-year old, drastically reducing the original eight-year sentence by a local court. The reason?
The court said the 10-year-old victim's testimony was insufficient to prove there was "enough threat and physical assault" that made the victim unable to defend herself ― which would constitute a rape charge. [...]According to Article 305 of the criminal code (here), which refers to sex with those under 13 years of age, the most relevant article that would apply to this case would be Article 297, which states that 'at least 3 years' is the punishment, suggesting the Seoul High Court gave him the shortest possible sentence. To be sure, handing out short sentences for such crimes is an ongoing problem.
Lee met the victim through a chatting app in April last year. He brought her to his home and had her drink two glasses of soju to get her drunk. He then sexually assaulted her by holding her hands and pressing against her body so she could not move.
Lee denied the allegations, claiming he did not know that the girl, who was 160 centimeters tall, was 10 years old at the time, and that he had sex with her with her consent.
Although the local court acknowledged Lee used threats and physical assaults to the point where she was unable to defend herself, the high court did not ― it said the girl's statement was the only evidence regarding the threat and assault and that it was insufficient.
The ruling caused a public uproar, and a petition was posted on Cheong Wa Dae's website requesting the dismissal of the judge on the case, gaining more than 100,000 signatures.[...]
As the criticism intensified, the court released an unusual explanation over the ruling on Monday.
According to the explanation, the victim just nodded when the investigator asked if Lee just held her hands and body down, so they could not confirm the details of the situation, such as if there was enough threat and violence to prevent her from fighting back.
With such limited evidence, the court could not recognize Lee as guilty of rape, so it ruled him guilty of statutory rape ― sex with a minor is illegal regardless of circumstances.
This article also notes that perpetrator in that case said, "I thought Ms. A was over 13 years old and she consented to sex." It also lists a number of cases related to sex with minors, some of which show that the statement that "sex with a minor is illegal regardless of circumstances" is not actually true. In fact, as one case listed in that article makes clear, a man in his 40s who had sex with a 12 year girl couldn’t be charged with statutory rape because she told him she was 14, and as the courts see it, you can’t punish someone for statutory rape if they did not perceive their partner be under the age of 13. He was ultimately charged with trespassing in a home, since he came to the girl's house to have sex with her without the parents' permission, and was sentenced to 6 months in prison.
In another case, a 30 year-old hagwon owner had sex numerous times with one of his teenage students, but initially was not punished (under the Child Welfare Act rather than the Criminal Act) because the judge took into account the burden a prison sentence would have on his ability to support his family, so was sentenced to 3 years in prison, suspended for 5 years. Following an appeal, however, he was sentenced to 2 years and 6 months in prison. One reason for this was the he was found to be not sincerely repenting and reflecting on his own faults because he kept insisting that the 30 instances of sex with him were just part of the victim exercising her right to sexual self-determination. (Which reveals just how that concept can be deployed as a defense, though it was ultimately unsuccessful in this case.)
These cases go to show that there are both loopholes and ways around those loopholes, but often it will depend on how interested the police and prosecution are in pursuing the case and the reaction of the judge. The Ministry of Justice recently stated that "We should admit that the government has not done enough to eradicate sexual crimes... We need a major policy change," and to be sure, the pace of change in regard to punishing sex crimes against children has been tortuously slow. While the recent changes in the laws are a good start, the purported reason for pursing them - the Nth Room case (see here, here, and here for an overview) - only got off the ground because two women pushed the police, who were initially very uninterested in the case, to take action. As long as such attitudes by police, perpetrators - in this case 260,000 of them - and judges remain, progress will be slow, because ultimately a law is only as good as its enforcement.
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