What is the future of sex offender punishment and justice in South Korea?

Discusses the problem and definition of sex offender punishment, examining three theories of justice: utilitarianism, free marketism, and moral and political philosophy. In doing so, we explore how sex crimes are punished and how legal justice is realized in Korean society.

 

Recently, heinous crimes in South Korea have been on the rise. Not only sex crimes against adult women, but also sex crimes against infants and adolescents have been in the news. As a result, the issue of sentencing for sex offenders and the treatment of sex offenders after they have served their sentences has become controversial. In the recent case of Oh Won-chun, who brutally murdered a woman in her 20s, the court’s decision to reduce his sentence from the death penalty to life imprisonment and the possibility of incarceration in a prison for foreigners has raised calls for justice. Despite this growing thirst for justice in our society, few people can give a clear answer to the question of what justice is, so before we can discuss the treatment of sex offenders, we need to know what justice is and how sex crimes are currently punished in Korea.
Michael Sandel’s book What is Justice presents three ways to understand justice academically. These three ways are happiness maximization, free marketism, and moral political philosophy.
Happiness maximization holds that justice is the choice that maximizes the happiness of individuals and society as a whole by calculating the happiness that every choice and its consequences will bring to individuals and society as a whole. This is based on utilitarian ideas, and is predicated on the premise that the consequences of choices can be reduced and calculated in a single currency: happiness. However, this approach has the potential to lead to a number of moral dilemmas. For example, in a situation where five people can survive at the expense of one person, the utilitarian position is that it is beneficial to save five lives at the expense of one. However, this implies an extreme outcome: that it is justified to kill one person so that five people can survive. Most people would have strong moral objections to this judgment. Utilitarians believe that this moral objection is not a flaw in utilitarianism, but rather an emotional flaw in the individual practicing it. There is also a problem with how happiness is calculated as a single currency, because happiness is relative, not absolute.
Free-market economics places the highest value on freedom and tries to understand justice from the perspective of freedom, which means that it depends on respecting and supporting the voluntary agreements of adults. But this approach also presents moral dilemmas. For example, if justice is the voluntary agreement of all adults, then a person should be able to trade some or all of their body parts as they choose – for example, a person could hire an indigent veteran to replace their two years of military service for money. Such an arrangement cannot be called “voluntary” because it is an unavoidable act of survival, but the question then becomes whether “voluntary choice” can exist in the real world.
The moral political philosophy approach sees justice as closely linked to virtue and the good life, meaning that a just society must have a clear view of virtue and the good life. This approach eventually leads to codifying virtue and the good life in law. This would be difficult to accept in South Korea, which is currently a liberal democracy. This approach also has the limitation that it is almost impossible to achieve social consensus on the definition of virtue and the good life.
The ultimate purpose of punishing sex offenders in Korea is to prevent the recurrence of the crime and rehabilitate the offender. These goals are the same in almost every country’s laws, but even with the same goals of punishment, the sentences for sex offenders vary widely from country to country. Sentences for sex offenders in Korea are lighter than in other countries, with a statutory maximum of 30 years in prison, but only about 10 years are actually served. For child sex offenses, the average sentence is 6-9 years. There are no additional penalties for sex offenders who have served their time. In the U.S., sentences for child sex offenses can range from 25 years to life in prison, although this varies by state. Some states practice chemical castration. Switzerland adopted a law by referendum in 2004 that permanently isolates dangerous sex offenders from society. China has an unconditional death penalty for sexual assault of children under 14. The only country with lighter sentences compared to Korea is Japan, where the statutory sentence is 10 years, while actual sentences tend to be heavier.
So how should sex crimes be punished in terms of justice? In the happiness maximization approach, punishing sex offenders increases the happiness of society as a whole, including the victims and their families, and causes suffering to the offender and their families. Therefore, imposing a sentence that maximizes the sum of happiness and suffering is justice. Considering that the recidivism rate of sex crimes in Korea is close to 45%, allowing sex offenders to return to society at large would cause more pain to society than happiness to the sex offenders and their families, so sanctions such as public disclosure of their identities, chemical castration, or social isolation, such as in foreign countries, are likely to follow. In free market terms, sex offense punishments are defined by the consensus of society’s members, meaning that the appropriate sex offense punishment is defined by what society’s members would do if they thought they might be a sex offender. In this case, people are unlikely to choose extreme punishments such as the death penalty, life imprisonment, or chemical castration because they think they might be a sex offender. Instead, they would presumably serve longer prison terms than they currently do because of the expectation that they are not a sex offender. However, this approach has the disadvantage that it is nearly impossible to objectively investigate. Alternatively, we could examine the appropriate punishments for sex offenders and nonoffenders and derive an average, but this is not strictly speaking a definition derived from free market economics. If we derive a definition from moral and political philosophy, then the punishment of sex offenses begins with our society’s definition of morality and the good life. Sex crimes cannot be morally right, but given our society’s moral system that values tolerance, relief for sex offenders will be prioritized, meaning that early release and full reintegration into society can be defined as justice in terms of moral and political philosophy, as long as the offender is not likely to reoffend, such as through mental feelings towards the offender while serving time. On the other hand, if the overall moral climate of our society is one of thorough punishment for the crime and prevention of the possibility of recurrence, then justice would be heavier sentences and sanctions for reintegration into society.
There are differences in our society’s definition of justice based on the three ways of looking at justice, but the most important thing in all of them, except for the double happiness maximization, is for each member of society to have a clear definition of his or her own justice and to build a social consensus. If the supreme goal of the law is to achieve social justice, then justice is derived by careful social consensus and can therefore change with the times and circumstances. Currently, trials and sentences in Korea are often socially controversial because people’s sentiments and sentences do not match. For true justice to be realized in Korea, members of society must think about justice in a careful and serious manner, not be swayed by temporary emotions or public opinion, and the law must respect this social consensus, not be bound by outdated laws.