A person’s right to self-determination of sexual freedom is a comprehensive, basic human right emanating from human dignity and values and a right to happiness under the Constitution. Such basic human rights are embodied as elements of freedom unde...
A person’s right to self-determination of sexual freedom is a comprehensive, basic human right emanating from human dignity and values and a right to happiness under the Constitution. Such basic human rights are embodied as elements of freedom under the regulations of the Criminal Act. Among them, the protection of sexual freedom is represented as the protection of a right to self-determination of sexual freedom. The right to self-determination of sexual freedom is two-fold: active and passive. On one hand, in the active protection side of self-determination of sexual freedom, it is imperative to ensure autonomy so that a person can freely exercise his/her right to self-determine sexual freedom in human relations. On the other hand, the passive protection side of self-determination of sexual freedom means cases involving the inhibition of a person’s sexual freedom for the reasons of coercion, immaturity for young age, debilitating state of mind and body, inability to resist, the relationship between subordinates and superiors, etc. Accordingly, it is necessary for government authorities to proactively step in to protect a person’s self-determination of sexual freedom. Elements of sexually violent crimes under the Criminal Act directly refer to such cases noted above. This article will mainly discuss the protection of a person’s right to self-determination of sexual freedom on the passive side.
A person’s right to self-determination of sexual freedom is categorized into the protection of those who can exercise their rights to self-determination of sexual freedom and the protection of those who cannot.
First, the protection of those who can exercise their right to self-determination of sexual freedom targets people who possess capabilities and autonomy for self-determination. They shall be protected provided that they become subject to coercion, or meet the elements of a sex offense. Since they are presumed to be capable of exercising their rights to self determination, higher level of coercion is required to constitute sex crimes including rape and an indecent act by compulsion, compared with the level required for those who cannot exercise their rights to self-determination.
Second, the protection of those who are incapable of exercising their right to self-determination are divided into two groups; those who are completely incapable of self-determination and those who are restricted in self-determination. Specifically, the first group includes minors under the age of 13 years, and females under confinement, in other words, those who are incapable of self-determination or unable to express their mind under confinement for the reasons of debilitating state of mind and body and inability to resist, for example, quasi-rape or quasi-indecent act by compulsion. The second group refers to those who are restricted in their right to exercise sexual freedom, in other words, those who are under custody, or supervision for reasons of business, or employment etc., minors, or the disabled. Rape and indecent acts by compulsion as well as relatively minor sex offenses such as an indecent sexual act through fraudulent means, or by the threat of occupational authority are provided in sex offenses against the second group. Moreover, unlawful acts may constitute a sex offense even if a victim under the second group consents to the act.
The protection of those who can exercise their right to self determination discussed the following matters; whether the object of rape will be extended to males, whether a wife in marital relationships can become an object of rape, whether an attack and a threat, the elements of a rape, should be interpreted in the narrowest scope, which is the current legal standard of a rape crime determined on the severity of attack, threat, and a victim’s resistance against such illegal conduct. Above all, the extension of the object of rape crimes to males requires the discussion of atypical sexual act for sexual gratification similar to but other than normal sexual intercourse. Considering that it is rare as a matter of fact, that a female rapes a male against his will, using her physical force, seemingly, such discussion is of no practical use. In addition thereto, recently, with regard to rape crimes against a wife, the Supreme Court of Korea rendered a decision which acknowledges a rape crime against a wife at the breakdown of marital relationships. Although it is possible to acknowledge a rape crime against a wife during marital relationships under the relevant laws in terms of interpretation thereof, it is imperative to specify a rape crime of that type in the relevant law to provide a clear application. Lastly, the interpretation theory of the narrowest scope, the current legal standard for rape crimes, may not punish an unlawful act by force without consent as a rape crime, and therefore, the legal standard needs to be lowered to an interpretation theory of narrow scope rather than the narrowest scope.
According to a majority view of the academia as well as case laws, although an indecent act by compulsion requires the same degree of attack as required for a rape crime, in other words, the degree which makes impossible or substantially debilitates the victim to resist such unlawful act, an act of attack and of itself may suffice as an act of molestation. An indecent act committed unexpectedly and to the surprise of the victim is regarded as an act of directly inhibiting the victim’s sexual freedom and accordingly constitutes an indecent act by compulsion.
With regard to the protection of the first group of people who are incapable of exercising a right to self-determining their sexual freedom, an indecent act by compulsion on a minor under the age of 13 years does not require a subjective motive or purpose and in addition thereto, we need to reconsider a view that a female under confinement is completely deprived of a self-determination right of her sexual freedom. Those who are in debilitating status psychologically and physically, and those who are incapable of resistance can be categorized into the group of people who are completely incapable of exercising self-determination in sexual freedom considering the feeble status of mind and body or the status of inability to resist at the time of offense. In comparison therewith, with regard to the protection of the second group of people who are restricted in self-determination of their sexual freedom since they are under custody or supervision of another person for reasons of business, employment, etc., the Supreme Court made a decision, acknowledging an indecent act on a victim of the second group by the threat of occupational authority. In addition thereto, there is a contrary precedent by the Supreme Court which does not recognize a crime of sexual intercourse with minor through fraudulent means where a victim was tricked into having sexual intercourse for a false promise of KRW 500,000 in payment. The rational of the Supreme Court’s decision goes that sexual intercourse with minor through the threat of occupational authority under the Article 302 of the Criminal Act means misconception, delusion, or ignorance about sexual intercourse itself rather than about any condition lacking inseparable relation with sexual intercourse, which can be admitted to the court of law. However, the term of fraudulent means should not be interpreted narrowly as noted in the above example.
Moreover, sanctions against crimes interfering a person’s right to self-determination of sexual freedom are considered necessary measures to prevent another conviction of a second-time offender considering negative implications of punishment under the Criminal Act and accordingly, this writing discusses the following mechanisms; the registration of sex offender’s personal information and public disclosure thereof, wearing of electronic location tracing device on an offender’s person, and medication treatment for sex drive. As for the registration and public disclosure of sex offender’s personal information, it is necessary to introduce a procedure that allows a sex offender to seek the withdrawal of a registration order during registration period and before the expiration date thereof. In addition thereto, with the use of the postal system for residents, it is also necessary to inform the victim of the release of sex offender from prison.
Although electronic location tracing system to be installed on a sex offender after the completion of prison term is taken as a measure for security purpose, it substantially inhibits the freedom of sex offenders. For this reason, we need to take caution not to violate sex offenders’ basic rights and adopt differential electronic surveillance system considering the level of freedom restriction. If the electronic surveillance system applies in retrospect to offenders who are already sentenced or offenders against whom criminal execution is completed, it can trigger the problem of legitimacy of an electronic anklet for a sex offender and in addition, the wearing of electronic anklet at the close of prison term requires medication treatment from the execution stage of the sentence. Furthermore, the medication treatment for sex drive creates the following problems; the effectiveness as sex crime preventive measures, who will impose an order of medication treatment, omission of sex offender’s consent thereto, the permission of medication treatment to the first-time offender, a treatment order related to parole and provisional suspension of treatment, as well as approval of medication treatment on feeble offenders psychologically and physically, side effects of chemical castration, effectiveness thereof, etc.
With regard to the protection of a person’s right to self-determination of sexual freedom from the observation of de lege ferenda, the section on the establishment and change of (new) elements of such protection takes the extension of object of a rape crime as related to whether atypical sexual act for sexual gratification similar to but other than usual sexual intercourse can be recognized as a rape crime and (or) an indecent act by compulsion and together therewith, this section provides a necessity to specify a rape crime in marital relationships in order to include a wife as an object of sex crimes in relevant laws. Moreover, with regard to an act of rape, it is necessary to divide atypical sexual act for sexual gratification similar to but other than usual sexual intercourse into three levels; fornication, atypical sexual act, and an indecent act. In addition it is also necessary to adopt the concept of atypical sexual act applicable to adults. As for fornication without consent, some are for the establishment of this crime and others are against. It is reasonable for the Criminal Act to stay out of the controversy according to the principle of subsidiarity.
With the requirements of sex crimes, I proposed the following to complement the deficiencies of requirements: the introduction of atypical sexual act for sexual gratification to be applied to those over 19 years of age, application of same sentence for a rape crime and an indecent act by compulsion to be determined depending on the degree of unlawfulness, making same the sentences allowed by law for rape and fornication offenses by fraudulent means or through the threat of occupational authority, the rejection of radically upward modification toward maximum sentence allowed by law and the organization of sentences by law in accordance with tendency thereof.
Concerning the incorporation of special laws in the Penal Code, I provided the following suggestion: the inclusion in the Penal Code of aggravated penalty regulations under the Special Law on Sexual Violence, streamlining of the requirements of combined crime under Article 3 of Special Law on Sexual Violence, inclusion in the Penal Code of fornication, and an indecent act by compulsion crimes through fraudulent means or by the threat of occupational threat on minors, minors under the age of 13 years, minors under the age of 19 years, and the disabled, streamlining of bodily injury, battery, and assault including a rape, etc. as well as battery, assault and homicide including a rape, etc., inclusion of molestation in crowded, public places, an obscene act through communication media, a crime of taking a (moving) picture using a camera etc. under the Special Law on Sexual Violence and, streamlining of regulations involving an attempted crime, and an offense subject to complaint.