One of the fundamental bases of a democracy is the right to free expression or free speech. This right allows the people to engage in open and uncensored discussions on the conduct of the government, on the conduct of politicians, on economic and social issues, on political issues and often on issues that may be offensive to many of their fellow citizens. The importance of this right is reflected by its enshrinement in both the United States and the
South Korean constitutions. However, while both constitutions include the concept of free speech, the South Korean constitution limits free speech that violates the honor or rights of another individual or that undermines public morals or social ethics.
It is this honor and morality limitation that accounts for the difference between the United States and South Korea on the ability of each government to regulate pornography. While the U.S. harshly punishes the production, distribution and possession of child pornography, the right of free speech protects almost every other kind of pornography as a form of personal expression. Thus pornography involving adult actors or actresses who portray themselves as teenagers is protected, as is pornography where computers modify the images to simulate child pornography. The U.S. Supreme Court has reasoned that the purpose of the ban on child pornography is to protect children and children are not endangered by simulated child pornography.
However, the South Korean constitution permits the government to crack down on all pornography that undermines public morals. Thus the police authorities have recently broadened their crackdown on child pornography to include images that merely suggest the involvement of teenagers, such as those with school outfits or in school settings. Further, even computer animations and computer games are included in the crackdown. At the same time and in an eerily familiar echo of the war on drugs in the U.S., the South Korean prosecution has stated there will be no leniency for possession or distribution of such pornographic material, even for first time offenders.
Despite its constitutionality, the broad inclusive nature of the crackdown is controversial. Many young South Korean men have expressed concerns about whether they have inadvertently viewed material that will be considered child pornography. There is also the issue of sexting between teenagers and whether the government has carefully considered the implications of criminalizing a large segment of the population. However, perhaps the most important outcome of this controversy is to bring into sharp relief the real issue of whether this broad crackdown on pornography will accomplish the stated purpose of reducing the rate of sex offenses against children.
When considering the statements of South Korean child sex offenders it initially appears this crackdown would reduce offenses against children. The South Korean police reported that one offender confessed to having watched over 50 videos of child pornography the night before kidnapping, raping and killing an 8-year-old girl. Other child sex offenders have been found to have hundreds or thousands of pictures or videos of children engaged in sex acts on their computers. These offenders have stated that viewing such material made them want to engage in sexual activities with children. These lurid reports contribute to the impression that such pornography creates child sex offenders.
However, in contrast to the anecdotal stories from those offenders, there are studies in a number of countries throughout the world that show a decrease in sex crimes, including sex crimes against children, after the legalization of pornography. This paradoxical result was most recently documented in a study on the rates of sex crimes in the Czech Republic over a 35-year span encompassing periods both before and after the collapse of the Soviet Union in 1989. Prior to the collapse of the Soviet Union all pornography was illegal and punishment was harsh. However, after the collapse, pornography, including child pornography, became legal. Contrary to expectations the widespread availability of pornography coincided with a slight decrease in sex crimes in general and a marked decrease in sex crimes against children. The authors of the study posited that the availability of such material allowed individuals who would have otherwise committed an offense to satisfy their desires without the use of an actual victim.
Similar studies in a number of other countries including Croatia, Finland, Denmark, Sweden, West Germany and the U.S. showed the same reduction in sex crimes concurrent with an increase in the availability of pornography. In an effort to see if such effects held consistent over different cultures, the crime statistics of Japan and of the cities of Shanghai, China and Hong Kong were analyzed. Those studies also showed that the rate of sex crimes decreased as the amount and availability of pornography increased.
In contrast, studies of convicted child molesters in the United States revealed that the recidivism rate was significantly higher for those who frequently used pornography, and the more deviant the pornography the greater the increase in the recidivism rate. These studies also revealed that many individuals convicted of using or distributing actual child pornography had prior criminal sex offenses involving children. Finally the studies show that child molesters who had convictions involving child pornography were the most likely to reoffend.
What can the South Korean authorities learn from all of these statistics and studies? Perhaps simply that child molesters are often consumers of pornography but those who consume pornography are not often child molesters. Instead of declaring a broad war on pornography that risks criminalizing large segments of the population they should consider the criminal offense data of many jurisdictions where sex offenses, including child sex offenses, decreased after the legalization of pornography. A more focused approach would ban actual child pornography while also permanently banning convicted child sex offenders from using computers or accessing the internet. The South Korean government has a duty to protect the children of South Korea even if doing so requires policies that sometimes counter the prevailing popular feeling.
By Daniel Fiedler
Daniel Fiedler has been a professor of law in South Korea since 2006 and a licensed attorney in California since 2000 and Arizona since 1998. ― Ed.
