Case on Production, Distribution, etc. of Virtual Child or Juvenile Pornography

[27-1(B) KCCR 402, 2013Hun-Ka17ㆍ24, 2013Hun-Ba85 (Consolidated), June 25, 2015]

In this case, the Constitutional Court held that the portion of the former Act on the Protection of Children and Juveniles against Sexual Abuse which provides for criminal punishment of actions that produce, distribute, etc. child and juvenile pornography and involves the “depiction of persons or representations that can be obviously perceived as children or juveniles, engaging in any other sexual act” is not contrary to the void-for- vagueness doctrine under thenulla poena sine legeprinciple and the rule against excessive restriction, and is therefore not in violation of the Constitution.

Background of the Case

(1) The petitioner of 2013Hun-Ka17, who had been indicted on charges of exhibiting or displaying pornography containing sexual acts by women dressed up in school uniforms, filed a motion for constitutional review of Article 2 Section 5 and Article 8 Section 2 of the former Act on the Protection of Children and Juveniles against Sexual Abuse, which prescribe punishment for acts such as distribution of videos or films which depict persons or representations that can be perceived as children or juveniles, or virtual images of children or juveniles (amended by Act No. 11047, September 15, 2011, later amended by Act No. 11572, December 18, 2012). Then, the competent court granted the motion and filed for constitutional review with the Constitutional Court.

(2) The petitioner of 2013Hun-Ka24 had been accused of distributing a pornographic animated film displaying sexual intercourses between

female and male students in school uniforms by uploading it on online file-sharing websites and thereafter filed a motion requesting constitutional review of Article 2 Section 5 and Article 8 Section 4 of the aforementioned Act. The court in question granted this motion and filed a request for constitutional review with the Constitutional Court.

(3) The petitioner of 2013Hun-Ba85, having been indicted on charges of uploading and publicly exhibiting a pornographic video titled “A uniform beautiful Girl Club”, which depicts persons or representations that may be perceived as children or juveniles, on an online file storage service for users to view or download it, petitioned for constitutional review of Article 2 Section 5 and Article 8 Section 4 of the aforementioned Act. As this motion was denied by the competent court, the petitioner filed a constitutional complaint challenging the constitutionality of the said provisions with the Constitutional Court pursuant to Article 68 Section 2 of the Constitutional Court Act.

Subject Matter of Review

The subject matter of review in this case is the constitutionality of the portion of Article 8 Section 2 and 4 of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 11047, Sept. 15, 2011 and later wholly amended by Act No. 11572, Dec. 18, 2012, hereinafter the “former Children and Juveniles Protection Act”) concerning the “depiction of persons or representations that can be obviously perceived as children or juveniles, engaging in any other sexual act (hereinafter the “Provision at Issue”)”, which is laid out below:

Former Act on the Protection of Children and Juveniles against Sexual Abuse

Article 8 (Production, Distribution, etc. of Child or Juvenile Pornography)

(2) Any person who sells, lends, distributes, or provides child or

juvenile pornography for commercial purposes, or possesses or transports them for any of such purposes, or publicly exhibits or displays them, shall be punished by imprisonment with labor for not more than seven years.

(4) Any person who distributes, publicly exhibits or displays child or juvenile pornography shall be punished by imprisonment with labor for not more than three years or by a fine not exceeding 20 million won.

Relevant Provisions

Former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 11047, Sep. 15, 2011, later wholly amended by Act No. 11572, Dec. 18. 2012)

Article 2 (Definitions)

The terms used in this Act shall be defined as follows:

(Section 1-3 omitted)

4. The term “purchasing sex from a child or juvenile” means doing any of the following acts to a child or juvenile or compelling a child or juvenile to do such act, in return for offering or promising to offer money, valuables or other property gains, services or favors to those who arrange the purchase sex from a child or juvenile, or those who actually protect and supervise the child or juvenile, or any third person:

(a) Sexual intercourse;

(b) Pseudo-sexual intercourse using part of the body, such as the mouth and anus, or implements;

(c) Contacting or exposing all or part of the body, which causes sexual humiliation or repugnance of ordinary people;

(d) Masturbation;

5. The term “child or juvenile pornography” means depiction of children or juveniles, or persons or representations that can be obviously perceived as children or juveniles, doing any act defined in any ofsubparagraph 4 or engaging in any other sexual act, in the form of a film,

video, game software, or picture, image, etc. displayed on computers or other communications media;

(Section 6-9 omitted)

Summary of Decision

A. Conformity with the void-for-vagueness doctrine required under thenulla poena sine legeprinciple

Considering factors such as the legislative purpose, the regulatory background of virtual child or juvenile pornography, and the level of relevant statutory punishment associated with the Children and Juveniles Protection Act, it can be acknowledged that the phrase “persons that can be obviously perceived as children or juveniles” implies a depiction of those who are highly likely to be misperceived as children or juveniles by any ordinary person given their looks, identity, as well as motivation and background of pornography production. In addition, the portion of the Act concerning “representations that can be obviously perceived as children or juveniles” is, when taking into account the circumstances such as motivation and background of production, level of sexual acts depicted, overall background or storyline, and obscenity of the media contents that display a variety of sexual acts in different forms of representations, confined to acts that are fully capable of arousing abnormal sexual desire toward children or juveniles and thus likely to cause sex crimes targeting them. The portion can also be clarified by a more detailed judgment criteria determined by the supplementary interpretation of judges based on their style or reasons. This, in fact, hardly indicates any lack of clarity.

In consideration of its legislative purpose, level of relevant statutory punishment, etc., the portion concerning “any other sexual act” of the Provision at Issue can be perceived as obscenity that is highly likely to be sexually humiliating and repulsive to an ordinary person and that corresponds to the level of “sexual intercourse, pseudo-sexual intercourse

using part of the body, contacting or exposing all or part of the body which causes sexual humiliation or repugnance of ordinary people, and masturbation” as enumerated in Article 2 Section 4 of the Children and Juveniles Protection Act, and it is difficult to categorically define in law what constitutes an obscene action involving children or juveniles. It is therefore, to an extent, inevitable that a comprehensive form of regulation stating “any other sexual act” has been adopted.

Thus, the Provision at Issue is not in violation of the void-for-vaguenessdoctrine required under thenulla poena sine legeprinciple.

B. Conformity with the rule against excessive restriction

At issue is whether the Provision at Issue violates the rule against excessive restriction by overly limiting the freedom of expression and failing to comply with the principle of proportionality between crime and punishment. Even for virtual or pseudo child and juvenile pornography, continuous distribution and exposure to expression materials using the image of children and juveniles as sexual objects may develop distorted perception and abnormal attitude toward the sex of children and juveniles. Moreover, comprehensive review of research and study results involving sexual criminals targeting children and juveniles suggests that it is necessary to impose heavy penalties on distribution and dissemination of virtual child and juvenile pornography in order to protect children and juveniles from potential sex crimes and send out a warning signal to society.

In addition, virtual child or juvenile pornography is fully capable of developing abnormal sexual desires toward children or juveniles as much as real child or juvenile pornography, and the punishment for such pseudo pornography is limited to the minimum necessary, to unavoidable circumstances where such restriction is essential for protecting children or juveniles from sex crimes. Because the gravity of crime and reprehensibility of such virtual pornography differs from that of regular pornography, the Provision at Issue, which imposes heavier statutory

punishment than the Criminal Act that prohibits the distribution of obscene pictures or the Act on Promotion of Information and Communication Network Utilization and Information Protection that bans circulation of obscene information, does not violate the principle of proportionality of criminal punishment. It also achieves the balance of interests when taking into account the significance of public interest involved in the protection of children and juveniles.

Thereupon, the Provision at Issue does not breach the rule against excessive restriction.

C. Conformity with principle of equality

The Provision at Issue prescribes the same statutory punishment for the distribution of both virtual and real child pornography and, furthermore, applies the same penalties for virtual child pornography irrespective of the different levels of sexual acts depicted. However, the two types of pornography are barely different in terms of their gravity of crime and reprehensibility in that they both can cause abnormal sexual desire toward children or juveniles and give rise to sex crimes that involve children or juveniles, and, since only the maximum sentence is laid out in the provision, judges have the discretion to determine the sentence within the scope of statutory punishment based on their consideration specific to cases. Therefore, the Provision at Issue is not considered to breach the principle of equality by failing to maintain the proportionality between crime and punishment.

Summary of Dissenting Opinion by Four Justices

A. Conformity with void-for-vagueness doctrine required under thenulla poena sine legeprinciple

We agree with the majority opinion regarding the view that the portion stating “persons that can be obviously perceived as children or juveniles”

in the Provision at Issue is clearly defined. However, as to the portion “expression materials that can be perceived as children or juveniles”, it is hard to judge whether it refers only to the expression materials that are highly likely to be misperceived as real children or juveniles or whether it also includes pictures or cartoons insofar as they depict the images of children or juveniles as sexual objects, and, consequently, it is hardly predictable what types of acts are punishable. Additionally,because this discerning judgment is entirely entrusted to the complementaryinterpretation of law enforcement agencies or judges, there is also the concern that laws may be interpreted or executed in an arbitrary manner.

Also, considering the purpose of the Act’s amendment on December 29, 2005 (Act No. 7801) to establish a comprehensive scope of sexual acts and thereby not confine it to depictions of obscene contents, the portion stating “any other sexual act” cannot be readily determined as obscenity as the majority opinion does. Furthermore, Article 2 Section 4 of the Children and Juveniles Protection Act serves as an open and comprehensive provision as it states “contacting or exposing all or part of the body, which causes sexual humiliation or repugnance of ordinary people”, which makes it difficult for persons with decent judgment to predict what “any other sexual act” subject to punishment refers to. Therefore, this portion is also unclear.

Even if “any other sexual act” is not considered unclear, the ambiguity of “expression materials that can be obviously perceived as children or juveniles” renders it difficult even for law enforcement entities as well as ordinary citizens as norm addressees to clearly distinguish what is applicable under the Provision at Issue, specifically the scope and limitations of virtual child or juvenile pornography. Consequently, the Provision at Issue is void for vagueness.

B. Conformity with rule against excessive restriction

Criminal punishment prescribed by an ambiguous legislation may result in unnecessary punishment of even the acts that should originally

be protected under the Constitution, which is inconsistent with the rule against excessive restriction.

Applying the same serious statutory punishment to virtual pornography as the one imposed for real pornography, which victimizes real children or juveniles as objects of sexual exploitation and puts their interests at stake, despite the lack of substantiated causal relationship between the exposure to pseudo pornography and the occurrence of sex crimes involving children or juveniles constitutes an extensive regulation of expression materials solely based on vague assumption or possibility of their harmfulness, and this is unacceptable.

Even if there is a need for regulation, prescribing the same heavy penalties for virtual pornography although children or juveniles are in effect not used as sexual objects in the process of its production solely on grounds that it can potentially encourage sex crimes is also not appropriate in terms of the proportionality of crime and punishment.

Yet, the portions of the Provision at Issue stating “expression materials that can be perceived as children or juveniles” and “any other sexual act” are, as reviewed above, ambiguously defined and thus may result in an overly extensive scope of punishment. This extensiveness, in turn, may even lead to punish or discourage the expressions that require protection. Thus, the Provision at Issue is likely to result in an excessive restriction on the freedom of expression and excessive criminal punishment.

Furthermore, the Provision at Issue also fails to balance the competing interests in that the level of statutory punishment or the extensive scope of punishable acts laid out in the provision have resulted in a serious level of restriction on freedom of expression and disproportionality of criminal punishment. The Provision at Issue, for this reason, also fails to meet the balance of interests requirement and thereby violates the rule against excessive restriction.