Author: Jihyun Choo (Assistant Professor, Department of Sociology, Seoul National University)
Source: Journal of Korean Women's Studies, 30(3), 45-84.
1. Framing the problem
Punitiveness, the discourse and practice of focusing on penalties, social isolation, and zero tolerance towards criminals, has been an ongoing trend in criminal policy, including policy related to sexual violence. Though there is the prevailing shift towards punitiveness in the media and government, those opposed argue that punitiveness might not be as effective for preventing crime as previously believed. On the other hand, feminists criticize punitiveness for its limitations with regards to the structure of gender relationships and the significance of sexual violence. However, compared to the critical discussions regarding the limitations of punitiveness, structural approaches to the specific discourses used to justify punitiveness and historical approaches for identifying points of differentiation between contemporary and prior discourses on the topic have not been fully explored until now. Additionally, some have argued that the overall trend toward punitiveness in Korean criminal policy is a result of the anti-sexual violence campaigns of the 1990s.
What is missing in the discourse, in this respect, is the factors which have influenced the transformation of public sentiment regarding sexual violence, crime, and the law. In order to fill in the gaps in research in this field, the objective of this paper is to examine the specific discourses which enable and justify the recent punitiveness towards perpetrators of sexual violence in a relation to the overall paradigm shift with regards to sexual violence policy.
2. Literature review
Loic Wacquant, who is responsible for bringing the concept of punitiveness into the popular consciousness of Korean society, pointed out that the American Zero-Tolerance policies enacted in the late 1980s, the most classic example of the phenomenon of punitiveness, has a direct link with the re-construction of the neoliberal market economy. According to Garland, welfare experts in the 1970s, who supported the ideal of a market-centered society, played leading roles in producing moral panic about crime control, which resulted in increased punitiveness. Previous discussions, like these, either mention sexual violence as the core reason for punitive criminal policies or designate perpetrators of sexual violence as a type of underclass, but the impact of the punitive policies is not touched upon. On the other hand, feminists such as Davis, Haney, Fisher, and Reese raise the question of how the general policy trend towards punitiveness is related to gender issues.
3. Data and methodology
All legislation that incorporate a problem diagnosis regarding sexual violence as one of the objectives of the legislative proposal serve as the main sources of data for this paper. (Examples of sexual violence include, sexual assault, sexual molestation, rape, sexual abuse, sexual harassment, homewrecking.) Until September 2013, 683 legislative bills that include one or more of these keywords in its proposal objectives have been counted.
II. The shape and trajectory of the discourse on punitiveness with regards to sexual violence
From the establishment of the Constitution of the Republic of Korea until 1988, no legislative bills regarding sexual violence were proposed or approved in the National Assembly. The first piece of relevant legislation was the Social Protection Act and the Act on the Additional Punishment etc. of Specific Crimes were ratified in March 1989. Both laws refer to rapists as homewreckers and brutal criminals, and proclaim that they are the cause of social anxiety. Thus, additional punishment and protective custody is required in their cases. In particular, under the President Roh Tae-woo, as his government sought to bolster public safety, sexual violence became one of five major crimes counted in official statistics for the police and prosecution. To rephrase, sexual violence policy emerged in the late 1980s as public safety policies created by the conservative government which emphasized the necessity of law and order.
Starting in 2005, this gradual process of making and amending laws on sexual violence dramatically increased (see Figure 1). In addition, as is visible in Figure 1, media reports and legislation demonstrate corresponding patterns since 2006, indicating that the lawmaking process of the National Assembly is becoming increasingly sensitive to the influences of public opinion.
However, not all sexual violence cases reported in the media are framed as sexual violence in the course of legislation. For example, in the case of Yoo Young-chul, in 2004, he was presented as a serial killer instead of as a perpetrator of sexual violence. For most cases, sexual violence perpetrated on children and teenagers has been the focus of policy discourse, except when the perpetrator occupies a high social status.
III. What is the problem? And why does it exist?
1. Legal emotions and punishment of the offender equaling protection for the victim
Sexual violence has been referred to an offence against society and humanity, however, that is not a sufficient explanation for the rise of punitiveness. In the middle of the 1990s, a trend emerges, as well as public resentment. First, as concepts such as victimhood and human rights began to emerge in society, retaliation prevention and other protection measures for victims were gradually implemented in policy. This reflects the atmosphere of Korea in the 1990s, when victimology and discourse regarding protection measures for victims was first being explored. Second, there is a new problem in which the court’s rulings and handling of the law cannot match the changing legal emotions of the public. At the 17th National Assembly, this appeal to legal emotionality demonstrated that punitiveness had been discussed, not for the purpose of preventing future crime, but to deal with public emotion surrounding a case. This legal emotionality utilizes the identity of victimhood to justify the penalties placed on criminals. With sexual violence identified as the most fatal offense, the discourse of protecting victims became the main rationale for punitiveness. In other words, since 2005, a new paradigm has emerged in which the punishment of an offender is equated to protection of the victim has appeared since 2005, which demands that the criminal’s face and name are revealed to the public in order to protect the human rights of victims, not the offenders.
2. Selecting a victim worthy of protection
As legal emotionality itself became more important, the standards for determining the victims of sexual violence and who to punish severely whether the harm to the victim was fatal or not. For example, sexual violence on women over 60, the elderly, and disabled has been recognized particularly brutal and it requires harsh punishment. As a result, sexual harassment is eliminated from the category of sexual violence, because sexual violence should be met with severe punishment. Additionally, if a victim does not fit the model of victimhood, it become more difficult to recognize the harm.
IV. Who is the problem?
1. Risk of repeat offenders: from penalties on actions to the existence of perpetrators
The problem of sexual violence used to be framed as an unequal gender relationship or a gendered action. That frame of view has shifted to viewing some people as possessing dangerous characteristics, thus, research and knowledge produced by experts focusing on the possibility of a repeat offenses has been used in order to determine who are likely perpetrators. Knowledge and statistics about the perpetrators of sexual violence are used as a standard to decide the likelihood of the crime. The prosecution has specific treatments and custody procedures for dangerous criminals with a high chance of being a repeat offender. Before 2005, only 10% of those accused of sexual violence were accused of rape, which increased to around 20%, after 2005, and reached 65.3%, by 2012.
2. Ordinary self-indulgence and intemperance as the signs of a monster
Sexual violence is no longer considered a crime perpetrated by only a particular type of monster, but rather, a monstrous crime that could be committed by anyone. In this way of viewing things, ordinary self-indulgence and intemperance should be monitored and controlled by oneself. The boundary between minor crimes that anyone could commit and monstrous crimes possible only by a monster, is fading away.
V. What is the solution?
1. Judicial reform and indirect reinforcement on the determination of punishment
In order to consider legal emotionality while determining a criminal punishment, the punishment must be reinforced in three specific ways. First, maximum sentences must be high. Second, to achieve the pragmatic effect of reinforcing the determined punishment through expanding the means of disposition. Third, apply civic participation in sexual violence criminal trials.
2. Social isolation and control of situation as prevention
The reconstruction of ordinary spaces has been demanded so that they may be safely managed. For example, having CCTV installed in playgrounds, public toilets, alleys, and in other exposed areas. In addition to this, work opportunities are limited for sexual violence perpetrators, preventing their return to ordinary social life.
3. Maternal instinct as governance
Some argue that children are victimized because of poor social policy, thus, the childcare system is discussed as a solution to sexual violence against children. Regardless of these discussions, no child care service has applied to this legislation, so that instead of these official services, mother own child care services must be used as a substitute. Through this, the mother becomes the agent that must prevent sexual violence and protect children from it.
Punitiveness, with regards to sexual violence, has, since the middle of the 2000s, emerged as a combination of discourses on anti-authoritarianism, neoliberalism, and on protections for victims. In these matters, the issue of who to protect from sexual violence is replaced by the problem of legal emotionality. The democratic process of weighing in on the magnitude of an offense and the value of protecting victims seem to be achieved through severe punishment, but, in fact, punitiveness turns the matter of dealing with sexual violence into another opportunity for control.