Sentencing sexual offences in South Korea

The sexual offence legislation in Korea has undergone significant changes over the past decade. After a number of high-profile sexual offences sparked an unprecedented public outcry, extensive legislative changes were made based on a more punitive approach. The increase in the statutory punishments and the implementation of new preventive measures were intended to increase the severity of punishment. However, ongoing criticism of sentencing outcomes has raised questions about the rationale behind the sentencing decision-making in sexual offence cases. This thesis explores the gap between the rhetoric in the law and actual sentences imposed for sexual offences by triangulating the findings from the interviews with judicial practitioners (judges, prosecutors and lawyers) and analysing court decisions. The findings indicate that practitioners have concerns about the punitive orientation in the current sexual offence legislation, with the increase in the minimum statutory punishment and the pressure to convict compelling them to be extra-cautious when judging the credibility of victims. Moreover, the conservative and strictly hierarchical organisational culture of Korea, combined with the particular dynamics among judicial practitioners, provide further justification for the maintenance of the old practices through adherence to precedents. Silencing victims’ voices during the judicial process is also facilitated by practitioners’ inherent suspicions regarding the possibility of false accusations, as well as a profoundly embedded prejudice against victims. The use of informal criminal agreements well captures how the supposedly victim-oriented approach ironically benefits the accused by reducing sentencing
outcomes. This study argues that the current sentencing practices reflect the compromised outcome of the dillema faced by practitioners between a punitive law on the one hand and their deeply rooted bias against sexual offence victims on the other. The analysis of court decisions supports this argument by revealing the tendency amongst judges to sentence offenders to the least possible
punishment, as well as their frequent use of suspended sentences.