A few months back a young U.S. soldier was sentenced to 10 years in jail for the brutal rape of an 18-year-old Korean woman. Despite the court’s statement that Korea, as America, was harsh in its punishment of such offenders, the punishment struck most Americans as too lenient considering the nature of the assault.
The local papers, perhaps in an effort to quell any suspicion of lenient or unequal treatment, quickly pointed out that the soldier’s sentence was comparable in length to that of a Korean man who had raped his elementary aged daughter and to that of repeat offender, also a Korean, who had raped a woman while wearing his electronic anklet installed due to his prior criminal offenses.
While it is heartening that the Korean judiciary at least attempted to punish these violent offenders as they deserved, it is disappointing that it took so many outrageous cases and the swell of public anger before they realized their duty.
Despite this progress, the punishment of rape as a violent offense is still misunderstood by the Korean police, prosecution and judiciary. In the soldier’s case the court discussed the fact that the soldier had not, at that time, obtained the forgiveness of his victim.
However, as I have previously argued, the forgiveness of the victim of a violent crime should be irrelevant when sentencing an offender. The fact that the court actually considers reducing or suspending the sentence of a violent offender who has paid a monetary settlement to the victim should be reprehensible to members of a society that lives under the rule of law. The offender not only violated the victim, but the rule of law that governs democratic society as well. The punishment is for that violation and the victim should not have any ability to influence the punishment given to the offender for the violation of the peace of society.
Moreover asking a victim of rape to take monetary compensation effectively equates her with a prostitute. Further the court also discussed the regret expressed by the offender and considered whether to reduce the sentence based on this factor. Perhaps it is a jaded view, but regret seems to only be genuine when the offender reports himself or herself to the police before even the victim has a chance to report the crime. Regret after being caught is only regret at being caught and should not be considered in sentencing.
Despite these serious issues, the greatest concern is the persisting view in South Korea that rape is a crime of sex or passion rather than a crime of violence.
In my position I have had the unfortunate duty to counsel young women who have been the victims of such attacks. In all cases I have advised the victim to report the attack to the police, to obtain professional counseling and to not in any case grant forgiveness to these violent and predatory criminals.
However, I have been repeatedly disappointed by the efforts of the police, the prosecution and even the judiciary to persuade these innocent victims to take monetary compensation and to forgive the violent individuals who have committed these atrocities.
Often the attempted persuasion has been based on the idea that either the offender will suffer too much should he be convicted of such a crime or that preservation of the relationship among individuals is one of the important roles of the court.
However, what relationship is there between a rapist and his victim that needs preservation? Perhaps that is the question the court should be asking instead of attempting to find justifications for reducing or suspending the prison sentences of these violent offenders.
Some commentators have attempted to justify Korea’s soft approach on rape by citing laws that more harshly punish violent offenders who sexually assault children.
However, despite their arguments and the court’s statement in the case of the young soldier that Korea punishes rape harshly, the fact is that Korean rapists who attack adult women are seldom punished severely in this country. While the victim can suffer for a lifetime, these violent and predatory criminals in far too many cases receive a fine or a suspended sentence.
As a comparison, the mandatory minimum sentences for rape in America are nine to 22 years longer than in Korea. Thus Korea also should introduce long mandatory prison sentences for these violent criminals.
While the Korean experience is unique, looking to how other countries punish these criminals is a valid way to assess the effectiveness and equality of Korea’s criminal justice system.
And should the Korean judiciary argue against mandatory sentences as a restriction on their freedom to judge, they should be reminded of their failure to adequately protect these victims in the past. Modern fully developed countries provide equal and adequate protection and equal and fair treatment for all of members of their society.
As long as the police, the prosecution and the judiciary fail to provide equal and adequate protection and equal and fair treatment for the women victims of rape, Korea will remain an underdeveloped nation.
By Daniel Fiedler
Daniel Fiedler is a professor of law at Wonkwang University. He also holds an honorary position as the lawyer representative for international marriages in Namwon, North Jeolla Province. ― Ed.
