Critical Analysis about the Publicity of Sex Offen
2010.02.16 14:35
Critical Analysis about the Publicity of Sex Offender: Focusing on Comparative Analysis of Precedents in Korea and the US
PARK, Sun-Young
(Prof. Catholic University of KOREA)
I. Rule of law and Sex Offense
Law reflects changes in society whereas it also expedites them; the essence of law in Korean society is more significant in which new laws are rather established to replace customary practices than to settle them down.
Recent emergence in prostitution and pandering of youth, production and distribution of juvenile sexual contents and sex offense on juveniles called for a Law of Youth Protection from Sexual Abuse (referred as to ‘the Korean law of youth protection from sexual abuse’ hereafter) to prevent the abovementioned illegal activities that was enacted on February 3, 2000. The Korean law of youth protection from sexual abuse was a special law established to protect youth from sexual abuse even though the Article 302 in the Korean Criminal Law clearly prohibits sexual misconduct on juveniles.
The article 20 in the Korean law of youth protection from sexual abuse states the youth protection committee may release and make personal information of sexual offenders available to the public including their names, ages, occupations and summary of their crimes upon convicting them with sentences. According to this article, the committee opened information on about 2,100 sexual offenders on juveniles from August 2001 to October 2003. Such publicity system of sex offenders created adverse criticism from the beginning. The Korean Constitutional Court finalized the disputed debate on unconstitutionality of the system by pronouncing the matter constitutional. However, the court's decision in making the matter constitutional from a perspective in constitutional logic leads to many controversial issues in several areas.
This paper, first of all, will examine fundamental problems of the Korean law of youth protection from sexual abuse in the part II, reappraise the principle of the Korean Constitutional Court's decision on the publicity of sex offenders from a critical point of view in the parts III and IV and make parallel analysis on legislative theory and discussion over policy considering unique characteristics of sexual offense on youth and progress in rehabilitation program.
Ⅱ. Korean Law of Youth Protection from Sexual Abuse
1. Insufficiency of Effectiveness on Youth Protection
The Korean law of youth protection from sexual abuse prohibits and severely punishes those who engage in sexual activities with youth. ‘Engaging in sexual activities with youth’ according to the Clause 2 of the Article 2 in the Korean Criminal Law is defined as ‘performing sexual activities with youth, performing such acts on their body parts including oral and anal sex or using tools to carry out something similar to actual sex’ upon providing or promising the youth, mediator or those who essentially shelters and supervises the youth with cash and other valuables or personal favor or convenience in public duties. Those who commit such abovementioned acts will be sentenced to less than or equal to three years' imprisonment or fined to less than or equal to 20 million won (The Korean Criminal Law, The Article 5).
The Korean law of youth protection from sexual abuse regulates more aggravated sentences to sex offenders on youth than other general criminal laws stated in the Criminal Law. Especially to those who rape a female youth, the Korean law of youth protection from sexual abuse will sentence them to more than 5 years' imprisonment (The Korean Criminal Law, The Clause 1 of The Article 10); it also convicts those who assault a youth by force and sentences them to more than a year's imprisonment or fined to greater than 5 million and less than 20 million won (The Korean Criminal Law, The Clause 2 of The Article 10); to those who commit quasi-rape and quasi-assaults by force will be sentenced in accordance to the above two clauses of the Korean law of youth protection from sexual abuse (The Korean Criminal Law, The Clause 3 of The Article 10) which also punishes attempted rapists as well (The Korean Criminal Law, The Clause 5 of The Article 10).
‘Engaging in sexual activities with youth,’ however, is on the assumption that there is a consent between a youth and a sex offender though the youth's judgement is premature and that any violence, threat or misleading plan on a youth is not associated with the crime itself. Thus, essentially, the publicity of sex offender on youth (referred as to ‘youth sex offender’) will not have any effect on warning and preventing the youth from sex offenses as a protective measure who sell their bodies in exchange for money.
2. Drawbacks in Approaches to Youth Protection
All constitutional states universally pursue the well-being of youth and protect them through legislation and policies from a national point of view since they are premature physically and mentally in the formative period and lack of judgement and rationality. In spite of pursuit of protecting the youth, it is inevitable that the purpose, range, methods and measures of the protection vary from one country to the other based on each nation's cultural, social and economic environments; general principles of law including fundamental laws of precision, balancing test and prohibition of superfluity.
Reasons for youth protection from sexual abuse are based on the following: first, most youth at risk do not attend school who are often runaway teenagers; second, they have been hurt structurally and emotionally for they have been abandoned from their schools and homes; and third, they are used to prostitution as a means of living since they are exposed to domestic violence, sexual abuse and distorted adult sex culture. On the other hand, some youths abuse their prostitution activities as a crime of personal accusation so that they blackmail those adults who have had sexual activities with them and fleece them of money and other valuables. In addition, some abet other youths the commission of prostitution. To abovementioned youth it is unavoidable for the publicity of sex offenders not to display any effect of crime prevention. Such matter regarding sexual abuse on youth will not be resolved unless separate special prevention care system and educational programs are set up and implemented.
Fundamentally Korea's youth laws have adopted protection volition as a measure of education (Erziehungsmäßregeln) on all juvenile crimes disciplining them lightly as future-oriented compliances (Weisungen) rather than severely punishing them as obligation from the past point of view in which youth sex crimes should not be dealt differently considering such position as a global trend. In spite of that, the effort to prevent sex crimes on youth to protect them from sexual abuse by causing disgrace and disorder through publicity of sex offenders rather than more active and solid criminal policies is a mere result of wrongly grasping the true essence of the issue.
Other problems of the Korean law of youth protection from sexual abuse in the general principles of law, so-called principles of balancing test and prohibition of superfluity will be mentioned later in this paper.
Ⅲ. The Korean Constitutional Court's Decision on the Publicity of Sex Offenders
1. Fact
A former public servant in Korea was arrested and under indictment for engaging in sexual activity with a thirteen-year old girl who he met through a phone lounge. He was fined to 5 million won on July 23, 2001 and received a notice from the Commission on Youth Protection about making his identity available to the general public in October 2001. He claimed that ‘he paid enough price for his action where he was fined and his family was about to fall apart.' Thus, he filed to Seoul Administrative Court for provisional disposition against suspension of executants for the publicity of his identity and the court acknowledged his provisional disposition.
Since then, Seoul Administrative Court filed a petition and asked an adjudgment on unconstitutional legal nature of the Article 20 in the Korean law of youth protection from sexual abuse to the Korean Constitutional Court upon accepting the above person's application for unconstitutional law adjudgment petition.
2. Related Laws and Reasons for Filing a Petition to Make Them Unconstitutional
Applicants, who filed for unconstitutional law adjudgment petition against the Korean law of youth protection from sexual abuse, claimed that the Clauses 2 (the subject of identity publicity), 3 (prohibition of unfair outrages on human rights of the subject and his/her family), and 4 (Prohibition of Publicity of Youth) and 5 (mandate of a Presidential decree on the time, period and regulation procedures of publicity) of the Article 20 in the Korean law of youth protection from sexual abuse all unconstitutional. However, Seoul Administrative Court filed a petition for only the Clauses 2.1, 3, 4, and 5 of the Article 20.
The scope of identity publicity according to the Korean law of youth protection from sexual abuse is defined as ‘personal information including name, age and occupation and a summary of crime’ and a means of publicizing the sex offenders' information is to ‘post a notice on a bulletin or distribute them nationwide based on the procedures in accordance with a Presidential decree.’ In addition, an Enforcement Ordinance of the law makes it a rule for the Commission on Youth Protection to institute and administer a review committee for identity publicity of sex offenders (referred as to 'the review committee') for preliminary review and advice on any publicity decision.
The reason for Seoul Administrative Court file the above petition is because ‘identity publicity possesses an attribute as a sentence for one's credibility so that it not only contradicts prohibition of double jeopardy, but also violates the principle of prohibition of superfluity and equal rights in comparison with those who engage in prostitution with adults; publicity of sex offenders by an administrative measure also violates their right for a fair trial, moreover, legal procedures as well so that the law itself is questionable to be unconstitutional.
As a response to the above claim, the Commission on Youth Protection stands on the purpose of publicity of sex offenders is to ‘raise warning on the general public about the sex crimes on youth that can be used as a preventive measure for the crime.’ The Commission also added a statement that ‘identity publicity is an administrative action so that the Commission on Youth Protection as an administrative organization can determine the subject upon review and make the list available to city, county and district based on a final judgement from a court so that it is difficult to consider such action as specified.’
3. The Focal Point of the Korean Constitutional Court's Decision of June 26, 2003 on the Case 2002Ga14 of Being Constitutional
The Korean Constitutional Court announced the Clauses 2.1 and 5 of the Article 10 in the Korean law of youth protection from sexual abuse constitutional that allow administrative organizations to release and make the identity of sex offenders on youth available to the general public. Five judges out of the nine judges of the court suggested those clauses unconstitutional and the rest constitutional; however, the clauses were determined to be constitutional due to lack of a quorum to make them unconstitutional.
(1) Court's Suggestion to Make The Clauses Constitutional
The main idea of the court's suggestion to make the above clauses constitutional is that ‘the sentence for sex offenses on youth cannot be regarded as double jeopardy besides the existed penalty, such as an additional sentence to cause disgrace or question credibility of offenders in the process of publicizing their identity for public interest. ... We cannot draw a conclusion that legislative policies including the publicity of sex offenders are unnecessary to prevent the current increase in the number of sex offenses on youth; the clauses do not violate the principle of minimal casualties to individual as well as prohibition of superfluity where sex offenders are given their chance to defend themselves as a means of legal provision.’
In addition, ‘it is hard to assert that such act of publicity will violate personal rights and privacies though their identities and crimes will be known to the public from an official record called "a criminal sentence" from an open criminal trial which have already been decided upon. Thus, the publicity of sex offenders is not a punishment which cannot be considered as a violation of one's right to receive a fair trial.’
(2) Court's Suggestion to Make The Clauses Unconstitutional
The main idea of the court's suggestion to make the above clauses unconstitutional is that ‘the publicity of sex offenders not only defames the offenders' personal rights by significantly limiting one's personal rights in social perspectives of which purpose of the definite system is ambiguous.’ The following is also stated that ‘the time, period, and procedures of publicity of sex offenders are applicable to the true nature of the overall characteristic and application of law. In addition, although the Clause 5 of the Article 20 in the Korean law of youth protection from sexual abuse is very important and has a direct influence on the personal rights of subject, it is against the mandate in the constitution governing the entire system via a Presidential decree without defining its fundamental details and scope definitely.’
Ⅵ. Criticism on the Korean Constitutional Court's Decision of June 26, 2003 on the Case 2002-14 of Being Constitutional
1. The Principle of Double Jeopardy
(1) Constitutional Definition of Punishment, Disgrace and Dishonor
The Korean Constitutional Court has already stated that ‘punishment according to the Clause 1 of the Article 13 in the Constitution is defined to penalty as an execution of national justice against a crime which cannot include the whole discipline governed by the nation or disadvantage against an accused criminal’ and declares the same standpoints on the decision of this case.
The author, then, considers such conclusion as a punishment, a type of criminal disciplines from the perspectives in the purpose and conditions of the publicity of sex offenders although the Constitution does not state any punishment as in dishonor or disgrace. Moreover, if one views the publicity of sex offenders in comparative constitutional or social aspects of law, it would not only function as actual dishonorable punishment in Korea, but also preserve functionality and characteristics of a punishment in reality.
The reasons are stated in the following.
1) Legislation Purpose of the Publicity of Sex Offenders
Korean law of youth protection from sexual abuse was established in the year 2000 based on Megan's Law, a US registration statute of sex offenders as a benchmark as sex crimes targeting youth, such as prostitution between adults and youth (so-called ‘association between an old and young’) and production of teen pornography, increased in 1999 that was considered as a serious matter in Korean society (The Law #6261). That is, the Korea law of youth protection from sexual abuse promotes warning among the general public towards sex crimes on youth through which can prevent such offenses as its purpose.
In effect, the legislation purpose of the abovementioned law is to prevent sex crimes on ‘the youth who are one of the most important public interests’ as acknowledged by the Korean Constitutional Court and help them grow as healthy and contributing members of the society by protecting them from such crimes against them. In order to carry out the purpose, the publicity system of sex offenders on youth nationwide has been introduced.
2) Conditions, Details and Means of the Publicity of Sex Offenders
In accordance with the provision of the Clause 2 of the Article 20 in the Korean law of youth protection from sexual abuse, those sex offenders under this clause whose sentence have been decided and who meet the conditions defined by the Commission on Youth Protection may be subject to the publicity of their identities and crimes. The details of such publicity include their names, addresses, ages and occupations as well as the summary of crimes where parts of their addresses including district, county and city may be open to the public (The Clause 1 of the Article 5 in the same law). The means of publicity include publication in the Official Gazette, on the homepage of Commission on Youth Protection for six months and bulletin boards of the Central Government Complex, Seoul City Hall, each megalopolis and province (The Clause 1 of the Article 5 in the same law).
The details and means of the publicity of sex offenders does not meet the abovementioned legislative purpose (crime prevention) since such publicity is a very general, abstract and national list for the whole population in Korea. This list should be something individual, definite and regional to make it available to potential victims in which information of the offenders must be public to residents of a definite region. The means of the publicity stated in the Korean law of youth protection from sexual abuse do not intend to protect possible victims from additional crimes in near future of certain people in ‘blacklist’ by opening them to public based on their residences or work places which cannot achieve the expected result, crime prevention since the list only includes sex offenders with indefinite addresses while making it available to the whole population as unspecified at large. So-called the publicity of sex offenders stated in the Korean law of youth protection from sexual abuse is a system that cannot satisfy its initial legislative purpose, crime prevention.
In reference to the matter mentioned above, the Commission on Youth Protection released a statement on its position in this case in which ‘a certain administrative branch may register and keep the records of sex offenders' list and open them to residents of a region where sex offenders on youth live instead of the nationwide general publicity, however, this method will require more definite information to be released which will not be considered less invasion of privacy.’ Such regard not only overlooks the fact that the legislative purpose of the publicity is to prevent crimes, but also is an extreme example to acknowledge the current system of publicity as a means of invading personal rights.
3) Punishment and Disgrace, Disgrace and Invasion of Personal Rights and Oppression from Society
As mentioned above, the publicity of sex offenders defined in the Korean law of youth protection from sexual abuse has been introduced to inform the general public of sex offenders on youth and humiliate them rather than to protect potential victims from possible crimes in near future or supervise sex offenders.
The view on claiming the publicity of sex offenders unconstitutional stated above makes it clear that “it is very close to punishment of disgrace as if it were a replica of ‘modern scarlet letter.’” It also criticizes that the misuse of publicity system creates a sense of disorder in society by injuring the credibility of sex offenders on youth and ostracizing them to prevent the other criminals from committing similar crimes to theirs and that they are used as a means of crime prevention.
Such publicity of sex offenders on youth is an utterly opposing conduct to the ideology of the latter half of the Article 10 in the Korean Constitution stating validation and security of dignity and merit as a human is the nation's obligation. Historically speaking, severe public execution functioned as a means of general prevention to the public before the modern age; however, one must not overlook historical recognition of human dignity made protests against such punishment. Despite of a fact how flagrant a criminal may be, he possesses natural rights of human that cannot be invaded by government; if he received a sentence for his crime and the government made his name available to the whole world, it would be a double jeopardy and abuse of public power.
In terms of comparative law, Korea considers each individual's credibility extremely important whereas the government exercises its rights to defame one's reputation. For example, the ruling, a type of an official document, not only treats the names of plaintiff, defendant and all other related personals as alias and heavily protects one's individual reputation and personal rights where national justice may be carried out upon acknowledging defamation of one's reputation to those who publicly make a true statement against others (The Korean Criminal Law, The Clause 1 of the Article 307). This phenomenon may be a result of granting merit to an individual's social characteristics upon fixing in an agricultural society, but the legal and social background of Chosun Dynasty cannot be eliminated as a factor where Confucianism functioned as the core ideology of its society for about 500 years. In other words, chronologically speaking, it is hard to deny the fact that defamation of one's reputation had been acting as a means of penalty, which can be regarded as cruel and unusual punishment as well.
To Koreans in general who consider their reputation more than any other nations and races, it is a reality to feel more cruel to make their names known to the general public than any other penalty. This may be the reason for not being able to adopt the US legal systems in Korea such as sticking drunken driving license plates or criminal representation of his door. A criminal in Korea must not only feel self-abandonment of honor and obligation of his family due to his actions, but also experience mental and physical threats, contempt, oppression and disgrace from the society.
For this reason, the publicity of sex offenders must be viewed as an ‘actual punishment’ which violates legal rights of the offenders and their family members though it is not included in the Korean Criminal Law as a type of punishments. In addition, shaming punishments and stigma from the publicity of sex offenders cause much more severe agony and effect of punishment than reputation punishments established by law such as suspension or disqualification that itself invades personal rights of the offender and his family. Especially, the problem is even greater since the family members' rights for pursuit of happiness are jeopardized as well.
The Korean Constitutional Court's decision on the publicity being constitutional claimed to follow the US Supreme Court's Decision in which ‘[the US Federal Court] allows that the Megan's Law of Alaska will enforce sex offenders to register their personal information and the court's decision on their crimes with their competent authorities (if violated, they will be arrested). Though such information should be open to the general public through the Internet, the publicity of sex offenders cannot be regarded as shaming punishments and stigma.’ However, the above claim would arise problems in the following perspectives.
First of all, the court's decision overlooked cultural differences of law in which Koreans and Americans do not share same values on reputation. Second, the Megan's Law of US and the Korean law of youth protection from sexual abuse have different means of publicity of sex offenders (that will be mentioned later in this paper). Third, since the methods of publicity are different between the two countries, the part (2) below deals with balancing test between the legislative purpose and disgrace to sex offenders where our case in Korea hardly gains any benefit or effect. Thus, those two systems of the US and Korea exhibit striking contrasts that cannot be compared from one to the other. Fourth, unlike the western nations full of individualism and liberalism, Korea is a family oriented and blood tied society so that the publicity of sex offenders brings them shame punishments, stigma and invasion of privacy along with disgrace and social contempt to their family members. Moreover, since the publicity system is not of individual or definite, there may be a problem where a different person with same name in the same region and his family's personal rights ought to be violated by the publicity of sex offenders. Last, but not least, the publicity of sex offenders, as mentioned above, damages the fundamental principle of modern criminal law, ‘enlightenment via punishment’ in which the Korean society not only excludes and stigmatizes sex offenders on youth as former convicts, but also blocks and interferes with sex offenders on youth from returning back to society due to its special characteristic. Considering the relationship between an act of deviation and social stigma reciprocally, excessive regulation of crimes will cause more cruel crimes-that is a fact or a common sense. One must remember that more sex crimes are results of impulsive and mental-pathological acts where criminals can make logical choices in other crimes.
Even the court's suggestion on this case making it constitutional acknowledges the fact that the publicity of sex offenders in Korea violates individual personal rights and privacy, and so does the Commission on Youth Protection. Thus, it is hard to understand the Korean Constitutional Court's decision in which the publicity of sex offenders on youth is not a ‘punishment’ that causes disgrace and violates one's reputation and privacy.
(2) The Publicity of Sex Offenders on Youth is a Double Jeopardy.
The principle of prohibition of a double jeopardy stated in the Clause 1 of the Article 13 in the Korean Constitution was established to secure people's fundamental rights by stopping the government to punish a person twice for the same crime. Nevertheless, the publicity of sex offenders on youth functions as an actual punishment in our society where Koreans consider their and their family's reputation more important than any other countries. Thus, it can be viewed as a ‘punishment.’ In addition, it is clearly a ‘double jeopardy’ without a doubt since personal information of sex offenders will be open to the public upon being sentenced without verifying additional any conditions in the crime and confirming further facts. The court's suggestion to make it unconstitutional pointed out the publicity as ‘excessive abuse of the national justice which allows [the publicity], a more severe means of punishment without other purpose or function on top of the punishment that has been sentenced to sex offenders.’
The court's decision on making this case constitutional, as a response to the above comment, proposed the principle of balancing test in which the publicity of sex offenders on youth is not a double jeopardy.
1) The Principle of Balancing Test
The court's decision on making this case constitutional applied the principle of balancing test in which ‘the publicity of sex offenders on youth ... gives the criminals disadvantages including disgrace and stigma. In order for such disadvantages to become shame punishments or stigma, in fact, one must carefully examine the relationship among legislative purpose of the publicity of sex offenders, available contents of the sex offenders and the court's decision in making the person guilty.’ However, such claim is not convincing since it does not satisfy the legislative purpose, the crime prevention as mentioned above in the section (1).
In addition, the court's suggestion to make it constitutional presupposed ‘if it is possible for the current law to extensively limit rights of a criminal including his right to vote who was found guilty, it should admit of arguments to broadly limit personal rights and invade privacy of certain sex offenders as long as it does not violate their fundamental rights.’ It also added that ‘invasion of general personal rights and privacy of sex offenders on youth is not greater than the public request to protect youth from sexual abuse so that it does not violate the principle of balancing test.’ However, there is not much effect of youth protection from sex crimes by violating personal rights and privacy of sex offenders on youth. In addition, it causes curiosity among the public, causes disgrace of the sex offenders and their family members and stigma, and then it would no longer possess justice of law even in terms of balancing test.
2) Division of Crime Prevention Policies and Punishments
The court's decision on making this case constitutional claimed that ‘the publicity of sex offenders on youth in Korea has only shared minimal information of the offenders with the public to prevent further crimes so that it is a mere example of case study’ which acknowledges the freedom of lawmakers' legislative establishment. From the principle point of view, it is a justified theory in which ‘the issue to define which act as a crime and which penalty to give is based on the circumstances at the time of legislation of law, the general public's values or attitudes towards law, the actual conditions and cruelty of crime, the benefit and protection of law and crime prevention effect so that legislators may have their freedom to lawmaking acts at their discretion.’
Though law should define certain acts as crimes and sentence criminals to punishments accordingly, the way to prevent possible crimes among the whole population is possible by setting up various policies and education programs rather than opening certain group's personal information to the public. This was clearly proven from statistic data introduced in the Korean Constitutional Court's decision of this case; since the publicity of sex offenders on youth was put in force on August 30, 2001 for the first time in which the number of subject of publicity was 169, then 443 in the second time and suddenly increased to 671 in the third time. Such outcome is directly opposite to the initial legislative purpose of the publicity system that will have general prevention measures from sex crimes.
The issue, therefore, holds serious problems in which the publicity of sex offenders on youth not only violates the principle of double jeopardy on one crime, but also the principle of prohibition of superfluity as follows.
2. The Principle of Prohibition of Superfluity
(1) Suitability of Means
The court's decision on this case being constitutional must be presupposed that the principle of prohibition of superfluity, as stated in the Clause 2 of the Article 37 in the Korean Constitution, must be considered in terms of lawfulness of purpose, suitability of means, minimal casualties and balancing in the benefit and protection of the law. The court acknowledged the publicity system as ‘a necessary law to protect the minimum ethics of sex culture in our society’ as lawfulness of purpose with which the author agrees as well.
The court's decision, however, cannot convince me in terms of suitability of means which stated ‘[the court] admits of arguments whether the publicity of sex offenders on youth is the most effective and suitable means to achieve the initial legislative purpose, however, we can recognize that such publicity of sex offenders to the general public from a common sense will intimidate the general public to prevent them from engaging in possible sexual activities with youth. Thus, the court acknowledges that the system meets means of suitability.’
In my opinion, the publicity of sex offenders on youth may be effective in terms of intimidation to the general public in Korea who considers his reputation very important; however, it has already been mentioned in the above that one cannot expect its preventive measures since such publicity is a very general, abstract and national list for the whole population in Korea rather than individual, definite and regional. As indicated above in the court's decision on this case being unconstitutional, the Korean Constitutional Court cannot avoid criticism in which ‘the publicity of sex offenders on youth does not need to make personal information of sex offenders available to the public if its purpose would be only to arise warning among them; if it would aim to protect possible victims by providing personal information, then the current publicity system hardly has any measure of effectiveness due to insufficient information.’ In addition, one may raise a question in argument of the publicity of sex offenders since it only degrades itself to preventive means of crimes for enlightenment of the general public by violating personal rights and privacy of certain group of people. It is only right not to use people's rights as a means of well-being for others in accordance with the obligation of the government to respect dignity rights of people and to affirm and secure people's fundamental rights (The Article 10 in the Korean Constitution). Thus, even a cruel criminal's dignity and esteem must be respected as well.
(2) Minimal Casualties
This section is to examine whether the publicity of sex offenders on youth minimizes the violation of benefit and protection of the law of the subject. The court's decision on making it constitutional stated that ‘one may consider policies for sex offenders on youth including treatment for them, establishment of effective surveillance system or counseling for the youth victims, however, it would take many hours and efforts to lead to more fundamental and general improvement in social and cultural aspects, such as insufficient number of correction facilities and professionals for sex offenders on youth, the attitude of youth towards sex and their mammonism, the wrong drift of the world making sex as a good and adults' distorted awareness of sex. Thus, such publicity system satisfies conditions for minimal casualties.’
The above logic of the court's decision is an extreme example to exhibit problems in the government's perspectives on fundamental rights of each individual. That is, it incorporates the government's position to prevent crimes at the minimum cost where it doesn't pay any price in social aspects by humiliating the sex offenders through the publicity of sex offenders on youth since systems or correctional facilities and personnel for sex offenders on youth are insufficient and means, budget and institutions to improve the current conditions do lack as well. As previously mentioned in this paper, using the fundamental rights of people as a means of crime prevention may arise many issues, moreover, it also violates the Article 10 of the Korean Constitution where the government tries to avoid basic obligation to establish and promote various policies on criminals.
In addition, as stated above, since the current publicity system is carried out with a means of general, abstract, and national measure, a different person with same name in the same name is often mistaken as a sex offender. Korea is more closely tied by kinship than any other countries so that not only the sex offender, but also his whole family will experience disgrace and stigma if a member of family becomes a subject for such publicity. Moreover, the pain from such humiliation cannot be easily recovered so that the conditions for minimal casualties are not satisfied. From this perspective, it is hard to understand what exactly ‘the subject for [the publicity of sex offenders on youth] and his family's personal rights shall not be unfairly violated’ as clearly stated in the Clause 3 of the Article 20 in the Korean law of youth protection from sexual abuse.
3. The Applications of Legislation and Precedents of Other Countries
(1) The Applications of Legislation
1) Exemplification of the Korean Constitutional Court's Decision
In the statement of its final decision, the Korean Constitutional Court introduced the UN Treaty on Children's Rights and applications of legislation from other countries including the US and Taiwan. As indicated in the court's decision on this case, efforts to eradicate commercial sexual exploitation of children worldwide. Sexual abuse on children is the clearest example to exhibit acquisition of wealth in modern civilization most of which appear to be child prostitution, trafficking of children for sexual purposes, child pornography, sex tour, and paedophilia; such activities are rapidly accelerated as the Internet has become ubiquitous to make the world into one net at once so that international resolution for the above problems has been sought in addition to depending on each country's currently available laws and regulations.
Even though protection of children from sexual abuse is a matter requiring immediate attention in many countries, general principles of law including principles of precision, prohibition of superfluity and equality must be complied when protecting such problem with laws and regulations. Therefore, as is generally known, many laws have been established only focusing on protection of children, the applications of law in other countries introduced by the Korean Constitutional Court were different from the Korean law of youth protection from sexual abuse in conditions, means and the subject of laws that will be mentioned later in this paper.
2) Megan's Law of the US
The publicity of sex offenders on youth in Korea mostly follows Megan's Law of the US. The US Federal Megan's Law provides passive release of information, such as the list of sex offenders on its Internet site, running toll-free telephone numbers (800 or 900) and offering publications on sex crime prevention and its handling to the public. Each state regulates the publicity of and punishment on sex offenders by various means through the Registration Statutes or Notification Statutes.
In New Jersey's case, where Megan's Law has come into effect, the state makes not only names and addresses of sex offenders including their residences and employments available through a local press, but also their personal information, such as distinguishing body marks, and other information including their automobile registration on flyers or via fax or computer; in some cases, this state take the most active notification actions where officials visit schools or youth organizations to inform the youth of information of sex offenders. In addition, Megan's Law of the State of California generally offers a toll-free hot-line for its residents though police officers pay a visit to areas at high-risk from crimes to notify the residents or students in these areas of personal information of sex offenders.
As mentioned above, each US state has a different publicity system of sex offenders from one another where serious violent predators, who will hardly be recovered from their crime habits, those criminals of commercial sexual exploitation of children are registered into categories of dangerous or highly dangerous sex offenders, of which publicity information includes their names, alias, body marks such as tattoos or scars, summary of their crimes and their residence. The time of registration and notification will be made available to the public at the time of their release.
It is hard to find examples of making general publicity of sex offenders into laws in other countries except the US. Nevertheless, France and Germany only accumulates and maintains database of hereditary information including DNA of producers or distributors of child pornography or second offenders on children to be in support of foreign police, such as the Interpol.
(2) Precedents
1) Decision on Megan's Law of the State of Alaska
The Alaska's Criminal Law to notify personal information of sex offenders (referred as to ‘Megan's Law of the State of Alaska’) forces those who have been sentenced for their sex crimes to register their names, alias, physical features, driver's license numbers, dates of birth, the facts constituting crimes, dates and places of the verdict and the duration of their sentence with their respective correctional facility, otherwise, they will be arrested and receive punishment again. The correctional facility organizes the above information and classifies them into a ‘dangerous registrant’ and ‘highly dangerous registrant’ that will be transferred to and kept by the police. A dangerous registrant must register and verify with the correctional facility once a year for the first 15 years upon their release from a prison and a highly dangerous registrant must do the same four times a year whose information must be open and available to the public through the Internet.
Megan's Law of the State of Alaska defines to apply it to those sex offenders who were sentenced even before its establishment. Some people have criticized its unconstitutionality against the principle of Ex Post Facto; however, the US Supreme Court rendered a decision as it being constitutional on March 5, 2003. Even though the Megan's Law might have applied to the acts prior to its establishment, it is not a criminal sanction.
2) Decision on Megan's Law of the State of Connecticut
Megan's Law of the State of Connecticut enforces those who have been imprisoned for sex crimes to register their names and address with the police upon their release. In addition, the State requires them to submit their pictures and DNA samples as well. Scholars in the field of law have claimed that the above law in Connecticut is ‘unconstitutional since it only requires the publicity of those sex offenders based on their verdicts being guilty other than a separate process of preliminary hearing that violates the due process of law.’ However, the US Supreme Court made a decision on Connecticut's law as constitutional since ‘that the State of Connecticut did not provide a process of preliminary hearing does not violate the due process of law.’
The above decision from the US Supreme Court cannot be compared to the Korean Constitutional Court's decision in parallel since it focused on the matter of process unlike the current situation in Korea.
In addition, Megan's Law of the State of California also received a decision as constitutional, its regulation is far different from similar laws of other states where it allows the state to deliver a minimum sentence of 25 years to an ex-convict of felony who commits a crime for the third time although it may be only a misdemeanor. Such act is known as the three-strikes
law which regulates the publicity of ex-sex offenders of California.
(3) Differences between the US Laws and the Korean Law of Youth Protection from Sexual Abuse
As appropriately pointed out from the unconstitutionality of the publicity of sex offenders on youth in Korea, the US Megan's Law not only differs from our current publicity system in terms of its definite direction of law and contents, but also the US Supreme Court's decision to make it constitutional was based on the due process of law and the principle of Ex Post Facto rather than the principles of prohibition of superfluity and a double jeopardy given by the Korean Constitutional Court that decided the matter constitutional. Thus, it is not adequate to compare those two. Moreover, Megan's Law of the State of Alaska, that was decided as constitutional by the US Supreme Court, registered and released personal information of general sex offenders, not limiting to sex offenders on youth in Korea's case.
As stated above, regulations in the Korean law of youth protection from sexual abuse and Megan's Law of each state of the US as well as the conditions for crimes, scope of application, and conditions, scope and means of publicity. More importantly, the subject and details to judge their unconstitutionality were completely different from one another. In other words, the US Megan's Law does not limit the subject for publicity to only sex offenders on youth, but includes general sex offenders that varies the period and means of notification based on the cruelty and name of crimes. The time of notification does not begin until the time of their release as well where Korea makes the sex offenders' information available to public right after the verdict; it also allows criminals to register with the respective correctional facility on their own whereas in Korea the administrative authorities release their information unilaterally.
In addition, although there is not any abovementioned difference, fundamentally a nation's law culture is established based on its own unique political, economic, cultural and social backgrounds. Therefore, my theory is that a constitutional case in one country may be unconstitutional in the other.
5. The Principle of Prohibition of Legislation for Comprehensive Mandate
The court's decision to make this case constitutional authorized a Presidential decree to determine the time, period and process of publicity of sex offenders on youth according to the Clause 5 of the Article 20 in the Korean law of youth protection from sexual abuse that stated ‘the specified time, period and process are incidental parts rather than essential ones.’ However, the court's suggestion to make it unconstitutional claimed as stated above that the time, period and process cover more comprehensive connotations than simple attendant details.
The fact, moreover, to entrust all the procedures including the ‘due process of law’ of the publicity of sex offenders to a Presidential decree violates the principle of prohibition of legislation for comprehensive mandate that is defined in the Article 75 of the Korean Constitution because the portions that can possibly be included in ‘... ect.’ are very important. In other words, the standards, conditions and the formation of committee to decide the subject for the publicity system, hearing from the subject and completion of ex post facto relief process are all included in the ‘... ect..’ Thus, such abovementioned requirements are very important details that influence on the fundamental rights of the subject which not only violates the principle of legislation for comprehensive mandate, but also the principle of the due process of law.
V. Proposal of Amendment to the Korean Law of Youth Protection from Sexual Abuse
1. Critical Argument on the Korean Constitutional Court's Decision
The publicity of sex offenders on youth in accordance with the Korean law of youth protection from sexual abuse, as mentioned above, itself is a double jeopardy, violates the principles of prohibition of superfluity and prohibition of legislation for comprehensive mandate so that it is not only unconstitutional, but also contrary to its initial legislative purpose. In order to achieve such legislative purpose, a more regional and detailed publicity system must be adopted to reliably protect any potential victim rather than the current national and abstract system that may cause disgrace and stigma not only to sex offenders, but also to their family members. That is, means and regulations to carry out the current publicity system must be reconsidered besides the parts which deal with sex offenders, the main issue in this case. In addition, more comprehensive policies must be established to diversify treatment methods on sex offenders, adopt a more effective surveillance system, set up various counseling and educational programs on youth and improve disrupted environment. From these aspects, I entirely agree with the suggestion to make this case unconstitutional and propose to revise the current Korean law of youth protection from sexual abuse as follows.
2. Proposal to Revise the Korean Law of Youth Protection from Sexual Abuse
(1) Subdivision of the Age Groups of Youth under Supervision
In the Korean law of youth protection from sexual abuse, a youth is defined as a boy or girl under the age of nineteen years old. Considering sex is a core element of individual rights and identity and the definition of sexual abuse is introduced as a violating act to an individual right to decide their freedom of sexuality, one may raise a question in argument whether this law can applied to all youth under the age of nineteen uniformly. Moreover, the foundation of rights is based on freedom as a fact into consideration; it would be against the domain of law if the other party were blamed for a sexual activity with free will of the youth in their late teens. Thus, the age groups of youth, who should be protected from such sexual activities, need to be subdivided.
The law must divide the youth where it should separate the youth under the age of thirteen lacking self-control, endurance and memory from the youth over sixteen with certain level of independence and self-regulation who are somewhat physically and mentally mature. As mentioned in the Korean Constitutional Court's decision, the law of prevention of children and youth from sexual activities of Taiwan regulates to notify the personal information of ‘a person over eighteen who has engaged in sexual or indecent act, and other sex related activities with children under the age of twelve or youth under eighteen.’ (The Article 34).
A judge named Hyo Sook Jeon of the Korean Constitutional Court made her position clear in a case regarding the regulation of minor according to the Criminal Law constitutional where she decided ‘under the age of fourteen being the age of reliability ignores realities considering this changeable society. Moreover, the fact that the government is not taking any actions on the crimes committed by minors under the age of twelve not only deserts its obligation to protect the lives and bodies of crime victims, but also unfairly discriminates the level of protection on victims solely based on the age of offenders.’ Her remarks above are very suggestive in many aspects.
(2) Change in Prevention of Sex Crimes on Youth
It is hard to expect to decrease the number of sex crimes on youth only by punishing those who engage in sexual activities with the youth more severely than other crimes in general. It has been proven that the increase in penalty on criminals cannot control crimes in a society. For example, the US sentenced more on rapists that only increased the number of rapes and homicides. It is essentially more important to educate the youth to have upright understanding on sex and respect towards others from the early ages that must be done in each family. In addition, more diversified programs for more effective return of a youth who has dealt other youth for prostitution, must be sought out since such youth is exposed to a danger of second offense. Expansion in public services for youth and government's support in civilian youth activities should be more efficient than the current control, supervision or surveillance of government where sex education and humane education must be reinforced in public educational programs.
(3) Improvement in Counseling on Youth
Those youths who have been subject to youth prostitution are handled by the Juvenile Department according to the Korean Juvenile Law for counseling and rehabilitation without applying other preventive laws to prohibit prostitution (The Article 13 in the Korean Law of Youth Protection from Sexual Abuse). According to such law, when a public prosecutor acknowledges the necessity to put youths in protection facilities considering the nature, motive and result of the crimes, he may consign supervision of youths to a youth protection center or rehabilitation center where the youths may receive treatment or group counseling programs to recover their mental, physical and emotional health upon their consent (The Clause 16 of the Article 15 in the Korean Criminal Law).
Nevertheless, such efforts of protective measures have not achieved the desired end result since there are not sufficient systematic means including surveillance and other counseling facilities. The shortage of foster homes, hospitals, sanatoriums, juvenile reformatories, guidance centers for youth, youth rehabilitation centers and protection centers is not only serious, but also administration and management of those facilities is extremely inadequate. Thus, the law should strengthen protection means on youth at risk as a measure of education (Erziehungsmäßregeln) in terms of future-oriented compliances rather than severely punishing them as obligation from the past point of view. In other words, various rehabilitation programs must be developed and carried out for those youths abused by sex crimes to change their wrong understanding of sex, raise the level of their communication skills in a right direction, aware the nature of their misdemeanors and become eager to correct such wrongful acts. The reason for those abovementioned is because it is inevitable for them to possess confidence and self-respect of possible and bright future. If possible, their family members ought to be treated by counseling and education; otherwise, group home or foster home systems should be recommended and available to them.
(4) Special Concerns on the Female Youth
Most of recent crimes of sexual activities on youth are committed by male adults; however, the number of such acts has increased through active anticipation and seduction of female youths. Thus, misconducts and correction of those girls have become another issue in the Korean society. In order to prevent their misdemeanors, special programs must be researched and developed for them that promote a better understanding of adolescent experience and female development based on sex. A new measure of remedial education must be introduced and adopted to strengthen their self-respect and prepare for their future through mentoring with a woman from a same region, education on pregnancy, sex and parenting, counseling for those who suffered from sexual and physical abuse, communications, counseling for anger management and domestic violence.
In conclusion, establishment of laws and policies must be enforced for the better protection of youth from the perspectives and views of welfare of people, which the Korean Constitution pursues, rather than of defending offenders.
PARK, Sun-Young
(Prof. Catholic University of KOREA)
I. Rule of law and Sex Offense
Law reflects changes in society whereas it also expedites them; the essence of law in Korean society is more significant in which new laws are rather established to replace customary practices than to settle them down.
Recent emergence in prostitution and pandering of youth, production and distribution of juvenile sexual contents and sex offense on juveniles called for a Law of Youth Protection from Sexual Abuse (referred as to ‘the Korean law of youth protection from sexual abuse’ hereafter) to prevent the abovementioned illegal activities that was enacted on February 3, 2000. The Korean law of youth protection from sexual abuse was a special law established to protect youth from sexual abuse even though the Article 302 in the Korean Criminal Law clearly prohibits sexual misconduct on juveniles.
The article 20 in the Korean law of youth protection from sexual abuse states the youth protection committee may release and make personal information of sexual offenders available to the public including their names, ages, occupations and summary of their crimes upon convicting them with sentences. According to this article, the committee opened information on about 2,100 sexual offenders on juveniles from August 2001 to October 2003. Such publicity system of sex offenders created adverse criticism from the beginning. The Korean Constitutional Court finalized the disputed debate on unconstitutionality of the system by pronouncing the matter constitutional. However, the court's decision in making the matter constitutional from a perspective in constitutional logic leads to many controversial issues in several areas.
This paper, first of all, will examine fundamental problems of the Korean law of youth protection from sexual abuse in the part II, reappraise the principle of the Korean Constitutional Court's decision on the publicity of sex offenders from a critical point of view in the parts III and IV and make parallel analysis on legislative theory and discussion over policy considering unique characteristics of sexual offense on youth and progress in rehabilitation program.
Ⅱ. Korean Law of Youth Protection from Sexual Abuse
1. Insufficiency of Effectiveness on Youth Protection
The Korean law of youth protection from sexual abuse prohibits and severely punishes those who engage in sexual activities with youth. ‘Engaging in sexual activities with youth’ according to the Clause 2 of the Article 2 in the Korean Criminal Law is defined as ‘performing sexual activities with youth, performing such acts on their body parts including oral and anal sex or using tools to carry out something similar to actual sex’ upon providing or promising the youth, mediator or those who essentially shelters and supervises the youth with cash and other valuables or personal favor or convenience in public duties. Those who commit such abovementioned acts will be sentenced to less than or equal to three years' imprisonment or fined to less than or equal to 20 million won (The Korean Criminal Law, The Article 5).
The Korean law of youth protection from sexual abuse regulates more aggravated sentences to sex offenders on youth than other general criminal laws stated in the Criminal Law. Especially to those who rape a female youth, the Korean law of youth protection from sexual abuse will sentence them to more than 5 years' imprisonment (The Korean Criminal Law, The Clause 1 of The Article 10); it also convicts those who assault a youth by force and sentences them to more than a year's imprisonment or fined to greater than 5 million and less than 20 million won (The Korean Criminal Law, The Clause 2 of The Article 10); to those who commit quasi-rape and quasi-assaults by force will be sentenced in accordance to the above two clauses of the Korean law of youth protection from sexual abuse (The Korean Criminal Law, The Clause 3 of The Article 10) which also punishes attempted rapists as well (The Korean Criminal Law, The Clause 5 of The Article 10).
‘Engaging in sexual activities with youth,’ however, is on the assumption that there is a consent between a youth and a sex offender though the youth's judgement is premature and that any violence, threat or misleading plan on a youth is not associated with the crime itself. Thus, essentially, the publicity of sex offender on youth (referred as to ‘youth sex offender’) will not have any effect on warning and preventing the youth from sex offenses as a protective measure who sell their bodies in exchange for money.
2. Drawbacks in Approaches to Youth Protection
All constitutional states universally pursue the well-being of youth and protect them through legislation and policies from a national point of view since they are premature physically and mentally in the formative period and lack of judgement and rationality. In spite of pursuit of protecting the youth, it is inevitable that the purpose, range, methods and measures of the protection vary from one country to the other based on each nation's cultural, social and economic environments; general principles of law including fundamental laws of precision, balancing test and prohibition of superfluity.
Reasons for youth protection from sexual abuse are based on the following: first, most youth at risk do not attend school who are often runaway teenagers; second, they have been hurt structurally and emotionally for they have been abandoned from their schools and homes; and third, they are used to prostitution as a means of living since they are exposed to domestic violence, sexual abuse and distorted adult sex culture. On the other hand, some youths abuse their prostitution activities as a crime of personal accusation so that they blackmail those adults who have had sexual activities with them and fleece them of money and other valuables. In addition, some abet other youths the commission of prostitution. To abovementioned youth it is unavoidable for the publicity of sex offenders not to display any effect of crime prevention. Such matter regarding sexual abuse on youth will not be resolved unless separate special prevention care system and educational programs are set up and implemented.
Fundamentally Korea's youth laws have adopted protection volition as a measure of education (Erziehungsmäßregeln) on all juvenile crimes disciplining them lightly as future-oriented compliances (Weisungen) rather than severely punishing them as obligation from the past point of view in which youth sex crimes should not be dealt differently considering such position as a global trend. In spite of that, the effort to prevent sex crimes on youth to protect them from sexual abuse by causing disgrace and disorder through publicity of sex offenders rather than more active and solid criminal policies is a mere result of wrongly grasping the true essence of the issue.
Other problems of the Korean law of youth protection from sexual abuse in the general principles of law, so-called principles of balancing test and prohibition of superfluity will be mentioned later in this paper.
Ⅲ. The Korean Constitutional Court's Decision on the Publicity of Sex Offenders
1. Fact
A former public servant in Korea was arrested and under indictment for engaging in sexual activity with a thirteen-year old girl who he met through a phone lounge. He was fined to 5 million won on July 23, 2001 and received a notice from the Commission on Youth Protection about making his identity available to the general public in October 2001. He claimed that ‘he paid enough price for his action where he was fined and his family was about to fall apart.' Thus, he filed to Seoul Administrative Court for provisional disposition against suspension of executants for the publicity of his identity and the court acknowledged his provisional disposition.
Since then, Seoul Administrative Court filed a petition and asked an adjudgment on unconstitutional legal nature of the Article 20 in the Korean law of youth protection from sexual abuse to the Korean Constitutional Court upon accepting the above person's application for unconstitutional law adjudgment petition.
2. Related Laws and Reasons for Filing a Petition to Make Them Unconstitutional
Applicants, who filed for unconstitutional law adjudgment petition against the Korean law of youth protection from sexual abuse, claimed that the Clauses 2 (the subject of identity publicity), 3 (prohibition of unfair outrages on human rights of the subject and his/her family), and 4 (Prohibition of Publicity of Youth) and 5 (mandate of a Presidential decree on the time, period and regulation procedures of publicity) of the Article 20 in the Korean law of youth protection from sexual abuse all unconstitutional. However, Seoul Administrative Court filed a petition for only the Clauses 2.1, 3, 4, and 5 of the Article 20.
The scope of identity publicity according to the Korean law of youth protection from sexual abuse is defined as ‘personal information including name, age and occupation and a summary of crime’ and a means of publicizing the sex offenders' information is to ‘post a notice on a bulletin or distribute them nationwide based on the procedures in accordance with a Presidential decree.’ In addition, an Enforcement Ordinance of the law makes it a rule for the Commission on Youth Protection to institute and administer a review committee for identity publicity of sex offenders (referred as to 'the review committee') for preliminary review and advice on any publicity decision.
The reason for Seoul Administrative Court file the above petition is because ‘identity publicity possesses an attribute as a sentence for one's credibility so that it not only contradicts prohibition of double jeopardy, but also violates the principle of prohibition of superfluity and equal rights in comparison with those who engage in prostitution with adults; publicity of sex offenders by an administrative measure also violates their right for a fair trial, moreover, legal procedures as well so that the law itself is questionable to be unconstitutional.
As a response to the above claim, the Commission on Youth Protection stands on the purpose of publicity of sex offenders is to ‘raise warning on the general public about the sex crimes on youth that can be used as a preventive measure for the crime.’ The Commission also added a statement that ‘identity publicity is an administrative action so that the Commission on Youth Protection as an administrative organization can determine the subject upon review and make the list available to city, county and district based on a final judgement from a court so that it is difficult to consider such action as specified.’
3. The Focal Point of the Korean Constitutional Court's Decision of June 26, 2003 on the Case 2002Ga14 of Being Constitutional
The Korean Constitutional Court announced the Clauses 2.1 and 5 of the Article 10 in the Korean law of youth protection from sexual abuse constitutional that allow administrative organizations to release and make the identity of sex offenders on youth available to the general public. Five judges out of the nine judges of the court suggested those clauses unconstitutional and the rest constitutional; however, the clauses were determined to be constitutional due to lack of a quorum to make them unconstitutional.
(1) Court's Suggestion to Make The Clauses Constitutional
The main idea of the court's suggestion to make the above clauses constitutional is that ‘the sentence for sex offenses on youth cannot be regarded as double jeopardy besides the existed penalty, such as an additional sentence to cause disgrace or question credibility of offenders in the process of publicizing their identity for public interest. ... We cannot draw a conclusion that legislative policies including the publicity of sex offenders are unnecessary to prevent the current increase in the number of sex offenses on youth; the clauses do not violate the principle of minimal casualties to individual as well as prohibition of superfluity where sex offenders are given their chance to defend themselves as a means of legal provision.’
In addition, ‘it is hard to assert that such act of publicity will violate personal rights and privacies though their identities and crimes will be known to the public from an official record called "a criminal sentence" from an open criminal trial which have already been decided upon. Thus, the publicity of sex offenders is not a punishment which cannot be considered as a violation of one's right to receive a fair trial.’
(2) Court's Suggestion to Make The Clauses Unconstitutional
The main idea of the court's suggestion to make the above clauses unconstitutional is that ‘the publicity of sex offenders not only defames the offenders' personal rights by significantly limiting one's personal rights in social perspectives of which purpose of the definite system is ambiguous.’ The following is also stated that ‘the time, period, and procedures of publicity of sex offenders are applicable to the true nature of the overall characteristic and application of law. In addition, although the Clause 5 of the Article 20 in the Korean law of youth protection from sexual abuse is very important and has a direct influence on the personal rights of subject, it is against the mandate in the constitution governing the entire system via a Presidential decree without defining its fundamental details and scope definitely.’
Ⅵ. Criticism on the Korean Constitutional Court's Decision of June 26, 2003 on the Case 2002-14 of Being Constitutional
1. The Principle of Double Jeopardy
(1) Constitutional Definition of Punishment, Disgrace and Dishonor
The Korean Constitutional Court has already stated that ‘punishment according to the Clause 1 of the Article 13 in the Constitution is defined to penalty as an execution of national justice against a crime which cannot include the whole discipline governed by the nation or disadvantage against an accused criminal’ and declares the same standpoints on the decision of this case.
The author, then, considers such conclusion as a punishment, a type of criminal disciplines from the perspectives in the purpose and conditions of the publicity of sex offenders although the Constitution does not state any punishment as in dishonor or disgrace. Moreover, if one views the publicity of sex offenders in comparative constitutional or social aspects of law, it would not only function as actual dishonorable punishment in Korea, but also preserve functionality and characteristics of a punishment in reality.
The reasons are stated in the following.
1) Legislation Purpose of the Publicity of Sex Offenders
Korean law of youth protection from sexual abuse was established in the year 2000 based on Megan's Law, a US registration statute of sex offenders as a benchmark as sex crimes targeting youth, such as prostitution between adults and youth (so-called ‘association between an old and young’) and production of teen pornography, increased in 1999 that was considered as a serious matter in Korean society (The Law #6261). That is, the Korea law of youth protection from sexual abuse promotes warning among the general public towards sex crimes on youth through which can prevent such offenses as its purpose.
In effect, the legislation purpose of the abovementioned law is to prevent sex crimes on ‘the youth who are one of the most important public interests’ as acknowledged by the Korean Constitutional Court and help them grow as healthy and contributing members of the society by protecting them from such crimes against them. In order to carry out the purpose, the publicity system of sex offenders on youth nationwide has been introduced.
2) Conditions, Details and Means of the Publicity of Sex Offenders
In accordance with the provision of the Clause 2 of the Article 20 in the Korean law of youth protection from sexual abuse, those sex offenders under this clause whose sentence have been decided and who meet the conditions defined by the Commission on Youth Protection may be subject to the publicity of their identities and crimes. The details of such publicity include their names, addresses, ages and occupations as well as the summary of crimes where parts of their addresses including district, county and city may be open to the public (The Clause 1 of the Article 5 in the same law). The means of publicity include publication in the Official Gazette, on the homepage of Commission on Youth Protection for six months and bulletin boards of the Central Government Complex, Seoul City Hall, each megalopolis and province (The Clause 1 of the Article 5 in the same law).
The details and means of the publicity of sex offenders does not meet the abovementioned legislative purpose (crime prevention) since such publicity is a very general, abstract and national list for the whole population in Korea. This list should be something individual, definite and regional to make it available to potential victims in which information of the offenders must be public to residents of a definite region. The means of the publicity stated in the Korean law of youth protection from sexual abuse do not intend to protect possible victims from additional crimes in near future of certain people in ‘blacklist’ by opening them to public based on their residences or work places which cannot achieve the expected result, crime prevention since the list only includes sex offenders with indefinite addresses while making it available to the whole population as unspecified at large. So-called the publicity of sex offenders stated in the Korean law of youth protection from sexual abuse is a system that cannot satisfy its initial legislative purpose, crime prevention.
In reference to the matter mentioned above, the Commission on Youth Protection released a statement on its position in this case in which ‘a certain administrative branch may register and keep the records of sex offenders' list and open them to residents of a region where sex offenders on youth live instead of the nationwide general publicity, however, this method will require more definite information to be released which will not be considered less invasion of privacy.’ Such regard not only overlooks the fact that the legislative purpose of the publicity is to prevent crimes, but also is an extreme example to acknowledge the current system of publicity as a means of invading personal rights.
3) Punishment and Disgrace, Disgrace and Invasion of Personal Rights and Oppression from Society
As mentioned above, the publicity of sex offenders defined in the Korean law of youth protection from sexual abuse has been introduced to inform the general public of sex offenders on youth and humiliate them rather than to protect potential victims from possible crimes in near future or supervise sex offenders.
The view on claiming the publicity of sex offenders unconstitutional stated above makes it clear that “it is very close to punishment of disgrace as if it were a replica of ‘modern scarlet letter.’” It also criticizes that the misuse of publicity system creates a sense of disorder in society by injuring the credibility of sex offenders on youth and ostracizing them to prevent the other criminals from committing similar crimes to theirs and that they are used as a means of crime prevention.
Such publicity of sex offenders on youth is an utterly opposing conduct to the ideology of the latter half of the Article 10 in the Korean Constitution stating validation and security of dignity and merit as a human is the nation's obligation. Historically speaking, severe public execution functioned as a means of general prevention to the public before the modern age; however, one must not overlook historical recognition of human dignity made protests against such punishment. Despite of a fact how flagrant a criminal may be, he possesses natural rights of human that cannot be invaded by government; if he received a sentence for his crime and the government made his name available to the whole world, it would be a double jeopardy and abuse of public power.
In terms of comparative law, Korea considers each individual's credibility extremely important whereas the government exercises its rights to defame one's reputation. For example, the ruling, a type of an official document, not only treats the names of plaintiff, defendant and all other related personals as alias and heavily protects one's individual reputation and personal rights where national justice may be carried out upon acknowledging defamation of one's reputation to those who publicly make a true statement against others (The Korean Criminal Law, The Clause 1 of the Article 307). This phenomenon may be a result of granting merit to an individual's social characteristics upon fixing in an agricultural society, but the legal and social background of Chosun Dynasty cannot be eliminated as a factor where Confucianism functioned as the core ideology of its society for about 500 years. In other words, chronologically speaking, it is hard to deny the fact that defamation of one's reputation had been acting as a means of penalty, which can be regarded as cruel and unusual punishment as well.
To Koreans in general who consider their reputation more than any other nations and races, it is a reality to feel more cruel to make their names known to the general public than any other penalty. This may be the reason for not being able to adopt the US legal systems in Korea such as sticking drunken driving license plates or criminal representation of his door. A criminal in Korea must not only feel self-abandonment of honor and obligation of his family due to his actions, but also experience mental and physical threats, contempt, oppression and disgrace from the society.
For this reason, the publicity of sex offenders must be viewed as an ‘actual punishment’ which violates legal rights of the offenders and their family members though it is not included in the Korean Criminal Law as a type of punishments. In addition, shaming punishments and stigma from the publicity of sex offenders cause much more severe agony and effect of punishment than reputation punishments established by law such as suspension or disqualification that itself invades personal rights of the offender and his family. Especially, the problem is even greater since the family members' rights for pursuit of happiness are jeopardized as well.
The Korean Constitutional Court's decision on the publicity being constitutional claimed to follow the US Supreme Court's Decision in which ‘[the US Federal Court] allows that the Megan's Law of Alaska will enforce sex offenders to register their personal information and the court's decision on their crimes with their competent authorities (if violated, they will be arrested). Though such information should be open to the general public through the Internet, the publicity of sex offenders cannot be regarded as shaming punishments and stigma.’ However, the above claim would arise problems in the following perspectives.
First of all, the court's decision overlooked cultural differences of law in which Koreans and Americans do not share same values on reputation. Second, the Megan's Law of US and the Korean law of youth protection from sexual abuse have different means of publicity of sex offenders (that will be mentioned later in this paper). Third, since the methods of publicity are different between the two countries, the part (2) below deals with balancing test between the legislative purpose and disgrace to sex offenders where our case in Korea hardly gains any benefit or effect. Thus, those two systems of the US and Korea exhibit striking contrasts that cannot be compared from one to the other. Fourth, unlike the western nations full of individualism and liberalism, Korea is a family oriented and blood tied society so that the publicity of sex offenders brings them shame punishments, stigma and invasion of privacy along with disgrace and social contempt to their family members. Moreover, since the publicity system is not of individual or definite, there may be a problem where a different person with same name in the same region and his family's personal rights ought to be violated by the publicity of sex offenders. Last, but not least, the publicity of sex offenders, as mentioned above, damages the fundamental principle of modern criminal law, ‘enlightenment via punishment’ in which the Korean society not only excludes and stigmatizes sex offenders on youth as former convicts, but also blocks and interferes with sex offenders on youth from returning back to society due to its special characteristic. Considering the relationship between an act of deviation and social stigma reciprocally, excessive regulation of crimes will cause more cruel crimes-that is a fact or a common sense. One must remember that more sex crimes are results of impulsive and mental-pathological acts where criminals can make logical choices in other crimes.
Even the court's suggestion on this case making it constitutional acknowledges the fact that the publicity of sex offenders in Korea violates individual personal rights and privacy, and so does the Commission on Youth Protection. Thus, it is hard to understand the Korean Constitutional Court's decision in which the publicity of sex offenders on youth is not a ‘punishment’ that causes disgrace and violates one's reputation and privacy.
(2) The Publicity of Sex Offenders on Youth is a Double Jeopardy.
The principle of prohibition of a double jeopardy stated in the Clause 1 of the Article 13 in the Korean Constitution was established to secure people's fundamental rights by stopping the government to punish a person twice for the same crime. Nevertheless, the publicity of sex offenders on youth functions as an actual punishment in our society where Koreans consider their and their family's reputation more important than any other countries. Thus, it can be viewed as a ‘punishment.’ In addition, it is clearly a ‘double jeopardy’ without a doubt since personal information of sex offenders will be open to the public upon being sentenced without verifying additional any conditions in the crime and confirming further facts. The court's suggestion to make it unconstitutional pointed out the publicity as ‘excessive abuse of the national justice which allows [the publicity], a more severe means of punishment without other purpose or function on top of the punishment that has been sentenced to sex offenders.’
The court's decision on making this case constitutional, as a response to the above comment, proposed the principle of balancing test in which the publicity of sex offenders on youth is not a double jeopardy.
1) The Principle of Balancing Test
The court's decision on making this case constitutional applied the principle of balancing test in which ‘the publicity of sex offenders on youth ... gives the criminals disadvantages including disgrace and stigma. In order for such disadvantages to become shame punishments or stigma, in fact, one must carefully examine the relationship among legislative purpose of the publicity of sex offenders, available contents of the sex offenders and the court's decision in making the person guilty.’ However, such claim is not convincing since it does not satisfy the legislative purpose, the crime prevention as mentioned above in the section (1).
In addition, the court's suggestion to make it constitutional presupposed ‘if it is possible for the current law to extensively limit rights of a criminal including his right to vote who was found guilty, it should admit of arguments to broadly limit personal rights and invade privacy of certain sex offenders as long as it does not violate their fundamental rights.’ It also added that ‘invasion of general personal rights and privacy of sex offenders on youth is not greater than the public request to protect youth from sexual abuse so that it does not violate the principle of balancing test.’ However, there is not much effect of youth protection from sex crimes by violating personal rights and privacy of sex offenders on youth. In addition, it causes curiosity among the public, causes disgrace of the sex offenders and their family members and stigma, and then it would no longer possess justice of law even in terms of balancing test.
2) Division of Crime Prevention Policies and Punishments
The court's decision on making this case constitutional claimed that ‘the publicity of sex offenders on youth in Korea has only shared minimal information of the offenders with the public to prevent further crimes so that it is a mere example of case study’ which acknowledges the freedom of lawmakers' legislative establishment. From the principle point of view, it is a justified theory in which ‘the issue to define which act as a crime and which penalty to give is based on the circumstances at the time of legislation of law, the general public's values or attitudes towards law, the actual conditions and cruelty of crime, the benefit and protection of law and crime prevention effect so that legislators may have their freedom to lawmaking acts at their discretion.’
Though law should define certain acts as crimes and sentence criminals to punishments accordingly, the way to prevent possible crimes among the whole population is possible by setting up various policies and education programs rather than opening certain group's personal information to the public. This was clearly proven from statistic data introduced in the Korean Constitutional Court's decision of this case; since the publicity of sex offenders on youth was put in force on August 30, 2001 for the first time in which the number of subject of publicity was 169, then 443 in the second time and suddenly increased to 671 in the third time. Such outcome is directly opposite to the initial legislative purpose of the publicity system that will have general prevention measures from sex crimes.
The issue, therefore, holds serious problems in which the publicity of sex offenders on youth not only violates the principle of double jeopardy on one crime, but also the principle of prohibition of superfluity as follows.
2. The Principle of Prohibition of Superfluity
(1) Suitability of Means
The court's decision on this case being constitutional must be presupposed that the principle of prohibition of superfluity, as stated in the Clause 2 of the Article 37 in the Korean Constitution, must be considered in terms of lawfulness of purpose, suitability of means, minimal casualties and balancing in the benefit and protection of the law. The court acknowledged the publicity system as ‘a necessary law to protect the minimum ethics of sex culture in our society’ as lawfulness of purpose with which the author agrees as well.
The court's decision, however, cannot convince me in terms of suitability of means which stated ‘[the court] admits of arguments whether the publicity of sex offenders on youth is the most effective and suitable means to achieve the initial legislative purpose, however, we can recognize that such publicity of sex offenders to the general public from a common sense will intimidate the general public to prevent them from engaging in possible sexual activities with youth. Thus, the court acknowledges that the system meets means of suitability.’
In my opinion, the publicity of sex offenders on youth may be effective in terms of intimidation to the general public in Korea who considers his reputation very important; however, it has already been mentioned in the above that one cannot expect its preventive measures since such publicity is a very general, abstract and national list for the whole population in Korea rather than individual, definite and regional. As indicated above in the court's decision on this case being unconstitutional, the Korean Constitutional Court cannot avoid criticism in which ‘the publicity of sex offenders on youth does not need to make personal information of sex offenders available to the public if its purpose would be only to arise warning among them; if it would aim to protect possible victims by providing personal information, then the current publicity system hardly has any measure of effectiveness due to insufficient information.’ In addition, one may raise a question in argument of the publicity of sex offenders since it only degrades itself to preventive means of crimes for enlightenment of the general public by violating personal rights and privacy of certain group of people. It is only right not to use people's rights as a means of well-being for others in accordance with the obligation of the government to respect dignity rights of people and to affirm and secure people's fundamental rights (The Article 10 in the Korean Constitution). Thus, even a cruel criminal's dignity and esteem must be respected as well.
(2) Minimal Casualties
This section is to examine whether the publicity of sex offenders on youth minimizes the violation of benefit and protection of the law of the subject. The court's decision on making it constitutional stated that ‘one may consider policies for sex offenders on youth including treatment for them, establishment of effective surveillance system or counseling for the youth victims, however, it would take many hours and efforts to lead to more fundamental and general improvement in social and cultural aspects, such as insufficient number of correction facilities and professionals for sex offenders on youth, the attitude of youth towards sex and their mammonism, the wrong drift of the world making sex as a good and adults' distorted awareness of sex. Thus, such publicity system satisfies conditions for minimal casualties.’
The above logic of the court's decision is an extreme example to exhibit problems in the government's perspectives on fundamental rights of each individual. That is, it incorporates the government's position to prevent crimes at the minimum cost where it doesn't pay any price in social aspects by humiliating the sex offenders through the publicity of sex offenders on youth since systems or correctional facilities and personnel for sex offenders on youth are insufficient and means, budget and institutions to improve the current conditions do lack as well. As previously mentioned in this paper, using the fundamental rights of people as a means of crime prevention may arise many issues, moreover, it also violates the Article 10 of the Korean Constitution where the government tries to avoid basic obligation to establish and promote various policies on criminals.
In addition, as stated above, since the current publicity system is carried out with a means of general, abstract, and national measure, a different person with same name in the same name is often mistaken as a sex offender. Korea is more closely tied by kinship than any other countries so that not only the sex offender, but also his whole family will experience disgrace and stigma if a member of family becomes a subject for such publicity. Moreover, the pain from such humiliation cannot be easily recovered so that the conditions for minimal casualties are not satisfied. From this perspective, it is hard to understand what exactly ‘the subject for [the publicity of sex offenders on youth] and his family's personal rights shall not be unfairly violated’ as clearly stated in the Clause 3 of the Article 20 in the Korean law of youth protection from sexual abuse.
3. The Applications of Legislation and Precedents of Other Countries
(1) The Applications of Legislation
1) Exemplification of the Korean Constitutional Court's Decision
In the statement of its final decision, the Korean Constitutional Court introduced the UN Treaty on Children's Rights and applications of legislation from other countries including the US and Taiwan. As indicated in the court's decision on this case, efforts to eradicate commercial sexual exploitation of children worldwide. Sexual abuse on children is the clearest example to exhibit acquisition of wealth in modern civilization most of which appear to be child prostitution, trafficking of children for sexual purposes, child pornography, sex tour, and paedophilia; such activities are rapidly accelerated as the Internet has become ubiquitous to make the world into one net at once so that international resolution for the above problems has been sought in addition to depending on each country's currently available laws and regulations.
Even though protection of children from sexual abuse is a matter requiring immediate attention in many countries, general principles of law including principles of precision, prohibition of superfluity and equality must be complied when protecting such problem with laws and regulations. Therefore, as is generally known, many laws have been established only focusing on protection of children, the applications of law in other countries introduced by the Korean Constitutional Court were different from the Korean law of youth protection from sexual abuse in conditions, means and the subject of laws that will be mentioned later in this paper.
2) Megan's Law of the US
The publicity of sex offenders on youth in Korea mostly follows Megan's Law of the US. The US Federal Megan's Law provides passive release of information, such as the list of sex offenders on its Internet site, running toll-free telephone numbers (800 or 900) and offering publications on sex crime prevention and its handling to the public. Each state regulates the publicity of and punishment on sex offenders by various means through the Registration Statutes or Notification Statutes.
In New Jersey's case, where Megan's Law has come into effect, the state makes not only names and addresses of sex offenders including their residences and employments available through a local press, but also their personal information, such as distinguishing body marks, and other information including their automobile registration on flyers or via fax or computer; in some cases, this state take the most active notification actions where officials visit schools or youth organizations to inform the youth of information of sex offenders. In addition, Megan's Law of the State of California generally offers a toll-free hot-line for its residents though police officers pay a visit to areas at high-risk from crimes to notify the residents or students in these areas of personal information of sex offenders.
As mentioned above, each US state has a different publicity system of sex offenders from one another where serious violent predators, who will hardly be recovered from their crime habits, those criminals of commercial sexual exploitation of children are registered into categories of dangerous or highly dangerous sex offenders, of which publicity information includes their names, alias, body marks such as tattoos or scars, summary of their crimes and their residence. The time of registration and notification will be made available to the public at the time of their release.
It is hard to find examples of making general publicity of sex offenders into laws in other countries except the US. Nevertheless, France and Germany only accumulates and maintains database of hereditary information including DNA of producers or distributors of child pornography or second offenders on children to be in support of foreign police, such as the Interpol.
(2) Precedents
1) Decision on Megan's Law of the State of Alaska
The Alaska's Criminal Law to notify personal information of sex offenders (referred as to ‘Megan's Law of the State of Alaska’) forces those who have been sentenced for their sex crimes to register their names, alias, physical features, driver's license numbers, dates of birth, the facts constituting crimes, dates and places of the verdict and the duration of their sentence with their respective correctional facility, otherwise, they will be arrested and receive punishment again. The correctional facility organizes the above information and classifies them into a ‘dangerous registrant’ and ‘highly dangerous registrant’ that will be transferred to and kept by the police. A dangerous registrant must register and verify with the correctional facility once a year for the first 15 years upon their release from a prison and a highly dangerous registrant must do the same four times a year whose information must be open and available to the public through the Internet.
Megan's Law of the State of Alaska defines to apply it to those sex offenders who were sentenced even before its establishment. Some people have criticized its unconstitutionality against the principle of Ex Post Facto; however, the US Supreme Court rendered a decision as it being constitutional on March 5, 2003. Even though the Megan's Law might have applied to the acts prior to its establishment, it is not a criminal sanction.
2) Decision on Megan's Law of the State of Connecticut
Megan's Law of the State of Connecticut enforces those who have been imprisoned for sex crimes to register their names and address with the police upon their release. In addition, the State requires them to submit their pictures and DNA samples as well. Scholars in the field of law have claimed that the above law in Connecticut is ‘unconstitutional since it only requires the publicity of those sex offenders based on their verdicts being guilty other than a separate process of preliminary hearing that violates the due process of law.’ However, the US Supreme Court made a decision on Connecticut's law as constitutional since ‘that the State of Connecticut did not provide a process of preliminary hearing does not violate the due process of law.’
The above decision from the US Supreme Court cannot be compared to the Korean Constitutional Court's decision in parallel since it focused on the matter of process unlike the current situation in Korea.
In addition, Megan's Law of the State of California also received a decision as constitutional, its regulation is far different from similar laws of other states where it allows the state to deliver a minimum sentence of 25 years to an ex-convict of felony who commits a crime for the third time although it may be only a misdemeanor. Such act is known as the three-strikes
law which regulates the publicity of ex-sex offenders of California.
(3) Differences between the US Laws and the Korean Law of Youth Protection from Sexual Abuse
As appropriately pointed out from the unconstitutionality of the publicity of sex offenders on youth in Korea, the US Megan's Law not only differs from our current publicity system in terms of its definite direction of law and contents, but also the US Supreme Court's decision to make it constitutional was based on the due process of law and the principle of Ex Post Facto rather than the principles of prohibition of superfluity and a double jeopardy given by the Korean Constitutional Court that decided the matter constitutional. Thus, it is not adequate to compare those two. Moreover, Megan's Law of the State of Alaska, that was decided as constitutional by the US Supreme Court, registered and released personal information of general sex offenders, not limiting to sex offenders on youth in Korea's case.
As stated above, regulations in the Korean law of youth protection from sexual abuse and Megan's Law of each state of the US as well as the conditions for crimes, scope of application, and conditions, scope and means of publicity. More importantly, the subject and details to judge their unconstitutionality were completely different from one another. In other words, the US Megan's Law does not limit the subject for publicity to only sex offenders on youth, but includes general sex offenders that varies the period and means of notification based on the cruelty and name of crimes. The time of notification does not begin until the time of their release as well where Korea makes the sex offenders' information available to public right after the verdict; it also allows criminals to register with the respective correctional facility on their own whereas in Korea the administrative authorities release their information unilaterally.
In addition, although there is not any abovementioned difference, fundamentally a nation's law culture is established based on its own unique political, economic, cultural and social backgrounds. Therefore, my theory is that a constitutional case in one country may be unconstitutional in the other.
5. The Principle of Prohibition of Legislation for Comprehensive Mandate
The court's decision to make this case constitutional authorized a Presidential decree to determine the time, period and process of publicity of sex offenders on youth according to the Clause 5 of the Article 20 in the Korean law of youth protection from sexual abuse that stated ‘the specified time, period and process are incidental parts rather than essential ones.’ However, the court's suggestion to make it unconstitutional claimed as stated above that the time, period and process cover more comprehensive connotations than simple attendant details.
The fact, moreover, to entrust all the procedures including the ‘due process of law’ of the publicity of sex offenders to a Presidential decree violates the principle of prohibition of legislation for comprehensive mandate that is defined in the Article 75 of the Korean Constitution because the portions that can possibly be included in ‘... ect.’ are very important. In other words, the standards, conditions and the formation of committee to decide the subject for the publicity system, hearing from the subject and completion of ex post facto relief process are all included in the ‘... ect..’ Thus, such abovementioned requirements are very important details that influence on the fundamental rights of the subject which not only violates the principle of legislation for comprehensive mandate, but also the principle of the due process of law.
V. Proposal of Amendment to the Korean Law of Youth Protection from Sexual Abuse
1. Critical Argument on the Korean Constitutional Court's Decision
The publicity of sex offenders on youth in accordance with the Korean law of youth protection from sexual abuse, as mentioned above, itself is a double jeopardy, violates the principles of prohibition of superfluity and prohibition of legislation for comprehensive mandate so that it is not only unconstitutional, but also contrary to its initial legislative purpose. In order to achieve such legislative purpose, a more regional and detailed publicity system must be adopted to reliably protect any potential victim rather than the current national and abstract system that may cause disgrace and stigma not only to sex offenders, but also to their family members. That is, means and regulations to carry out the current publicity system must be reconsidered besides the parts which deal with sex offenders, the main issue in this case. In addition, more comprehensive policies must be established to diversify treatment methods on sex offenders, adopt a more effective surveillance system, set up various counseling and educational programs on youth and improve disrupted environment. From these aspects, I entirely agree with the suggestion to make this case unconstitutional and propose to revise the current Korean law of youth protection from sexual abuse as follows.
2. Proposal to Revise the Korean Law of Youth Protection from Sexual Abuse
(1) Subdivision of the Age Groups of Youth under Supervision
In the Korean law of youth protection from sexual abuse, a youth is defined as a boy or girl under the age of nineteen years old. Considering sex is a core element of individual rights and identity and the definition of sexual abuse is introduced as a violating act to an individual right to decide their freedom of sexuality, one may raise a question in argument whether this law can applied to all youth under the age of nineteen uniformly. Moreover, the foundation of rights is based on freedom as a fact into consideration; it would be against the domain of law if the other party were blamed for a sexual activity with free will of the youth in their late teens. Thus, the age groups of youth, who should be protected from such sexual activities, need to be subdivided.
The law must divide the youth where it should separate the youth under the age of thirteen lacking self-control, endurance and memory from the youth over sixteen with certain level of independence and self-regulation who are somewhat physically and mentally mature. As mentioned in the Korean Constitutional Court's decision, the law of prevention of children and youth from sexual activities of Taiwan regulates to notify the personal information of ‘a person over eighteen who has engaged in sexual or indecent act, and other sex related activities with children under the age of twelve or youth under eighteen.’ (The Article 34).
A judge named Hyo Sook Jeon of the Korean Constitutional Court made her position clear in a case regarding the regulation of minor according to the Criminal Law constitutional where she decided ‘under the age of fourteen being the age of reliability ignores realities considering this changeable society. Moreover, the fact that the government is not taking any actions on the crimes committed by minors under the age of twelve not only deserts its obligation to protect the lives and bodies of crime victims, but also unfairly discriminates the level of protection on victims solely based on the age of offenders.’ Her remarks above are very suggestive in many aspects.
(2) Change in Prevention of Sex Crimes on Youth
It is hard to expect to decrease the number of sex crimes on youth only by punishing those who engage in sexual activities with the youth more severely than other crimes in general. It has been proven that the increase in penalty on criminals cannot control crimes in a society. For example, the US sentenced more on rapists that only increased the number of rapes and homicides. It is essentially more important to educate the youth to have upright understanding on sex and respect towards others from the early ages that must be done in each family. In addition, more diversified programs for more effective return of a youth who has dealt other youth for prostitution, must be sought out since such youth is exposed to a danger of second offense. Expansion in public services for youth and government's support in civilian youth activities should be more efficient than the current control, supervision or surveillance of government where sex education and humane education must be reinforced in public educational programs.
(3) Improvement in Counseling on Youth
Those youths who have been subject to youth prostitution are handled by the Juvenile Department according to the Korean Juvenile Law for counseling and rehabilitation without applying other preventive laws to prohibit prostitution (The Article 13 in the Korean Law of Youth Protection from Sexual Abuse). According to such law, when a public prosecutor acknowledges the necessity to put youths in protection facilities considering the nature, motive and result of the crimes, he may consign supervision of youths to a youth protection center or rehabilitation center where the youths may receive treatment or group counseling programs to recover their mental, physical and emotional health upon their consent (The Clause 16 of the Article 15 in the Korean Criminal Law).
Nevertheless, such efforts of protective measures have not achieved the desired end result since there are not sufficient systematic means including surveillance and other counseling facilities. The shortage of foster homes, hospitals, sanatoriums, juvenile reformatories, guidance centers for youth, youth rehabilitation centers and protection centers is not only serious, but also administration and management of those facilities is extremely inadequate. Thus, the law should strengthen protection means on youth at risk as a measure of education (Erziehungsmäßregeln) in terms of future-oriented compliances rather than severely punishing them as obligation from the past point of view. In other words, various rehabilitation programs must be developed and carried out for those youths abused by sex crimes to change their wrong understanding of sex, raise the level of their communication skills in a right direction, aware the nature of their misdemeanors and become eager to correct such wrongful acts. The reason for those abovementioned is because it is inevitable for them to possess confidence and self-respect of possible and bright future. If possible, their family members ought to be treated by counseling and education; otherwise, group home or foster home systems should be recommended and available to them.
(4) Special Concerns on the Female Youth
Most of recent crimes of sexual activities on youth are committed by male adults; however, the number of such acts has increased through active anticipation and seduction of female youths. Thus, misconducts and correction of those girls have become another issue in the Korean society. In order to prevent their misdemeanors, special programs must be researched and developed for them that promote a better understanding of adolescent experience and female development based on sex. A new measure of remedial education must be introduced and adopted to strengthen their self-respect and prepare for their future through mentoring with a woman from a same region, education on pregnancy, sex and parenting, counseling for those who suffered from sexual and physical abuse, communications, counseling for anger management and domestic violence.
In conclusion, establishment of laws and policies must be enforced for the better protection of youth from the perspectives and views of welfare of people, which the Korean Constitution pursues, rather than of defending offenders.
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