Case on Sexual intercourse by force with a female child or juvenile

[27-1(A) KCCR 112, 2013Hun-Ba107, February 26, 2015]

In this case, the Constitutional Court held that the part of Article 7 Section 5 of the former Act on the Protection of Children and Juveniles against Sexual Abuse which punished anyone who had sex with a female child or juvenile by force in the same manner as applied to anyone who raped a female child or juvenile did not violate rule of clarity, principle against excessive restriction and principle of equality.

Background of the Case

(1) The petitioner was indicted on charges of having sex or attempt to have sex with a 14-year-old girl. He was sentenced to imprisonment for a maximum of two years and a minimum of one and half year and 80 hours in a treatment program for sex offenders.

(2) While the case was pending at the Supreme Court, the petitioner filed a motion to request for a constitutional review of Article 7 Section 5 of ‘Act on the Protection of Children and Juveniles against Sexual Abuse’, but the motion was denied. Subsequently, the petitioner filed this constitutional complaint.

Provision at Issue

The subject matter of this case is whether the part of ‘any person who had sex with a female child or juvenile by force shall be punished in the same manner as prescribed in Section 1’ (hereinafter the ‘Instant Provision’) in Article 7 Section 5 of the former Act on the Protection of Children and Juveniles against Sexual Abuse (revised by Act No. 9765 on June 9, 2009 and before being revised by Act No. 11047 on

September 15, 2011) violates the Constitution. The provision at issue in this case is as follows:

Provision at Issue

(5)Any person who has sex withor commits an indecent act againsta female child or juvenileby a deceptive scheme orby force shall be punished in the same manner as prescribed in Section 1through Section (3).

Summary of the Decision

1. Whether the Instant Provision violates the rule of clarity

In general, ‘force’ is construed to mean ‘any kind of power or influence that can be used to subdue and/or confuse the free will of other person.’ The Supreme Court has also construed the meaning of force in the Instant Provision as ‘any kind of physical or intangible influence that can be used to suppress and/or confuse the free will of a person’ and ‘force’ includes not only physical violence or intimidation but also any kind of pressure exerted from one’s social, economic or political authority and status. The precedents of the Supreme Court has consistently held that circumstantial factors such as the degree of influence, the status or authority of the person who exerts such force, victim’s age, prior relationship between victim and perpetrator, reasons for having sexual intercourse, substantive types of action, situation at the time of crime, etc., should be considered to determine whether a person has a sex by force. As a reasonable person with general legal awareness and proper common sense would easily infer the meaning of ‘force’ from the above mentioned explanation, the definition is not unclear. Therefore, we find that the Instant Provision is not against the rule of clarity

2.Whether the Instant Provision violates the Principle against excessiverestriction

Female children or juveniles are considered immature in terms of personality, emotional, intellectual and physical development and social adjustment and it is possible for them to engage in sexual activity by force even without physical violence or intimidation due to lack of ability to physically and socially defense themselves. In reality, there have been many cases of sex crimes against female children or juveniles by force without physical violence or intimidation. The Instant Provision, which was legislated to protect female children and juveniles from being victims of sex offense and help them become good and mature members of society as adults, has legitimate legislative purposes and the means to achieve the legislative purposes are proper.

Also, having sex with a female child or juvenile by force is a serious crime that can cause profound psychological trauma and emotional damage to the victimized child or juvenile and their family members and even become a threat to society, and the nature of the crime is very demoralizing. Further, considering the criminological need to provide special measures to deal with sex crimes against female children and juveniles and the difficulty to have a clear-cut age demarcation as an objective indication to be considered as children or juveniles, it is hard to conclude that the Instant Provision imposes excessive punishment on the crime compared to its culpability.

3. Whether the Instant Provision violates the principle of equality

The Instant Provision is different from the crime of ‘sexual intercourse with minors’ punished by Article 302 of the Criminal Code in terms of the object (target) of the criminal act as it is not applied to ‘anyone for whom the first day of January of the year in which he/she reaches 19 years of age has arrived.’ Moreover, the possible unconstitutionality of the statutory punishment, if any, can be resolved through sentencing

judge’s discretion to mitigate punishment such as a suspended sentence if there are extenuating circumstances in relation to the commission of the crime. As such, the Instant Provision, in comparison to the crime of sexual intercourse with minors under Article 302 of the Criminal Code, does not impose excessive punishment that is clearly out of proportion to the crime being punished and therefore, does not violate the principle of equality.

Given the tremendous traumatizing effects of the crime on victims and their families, the illegality of having sex with a child or juvenile by force is serious and the nature of the crime is so demoralizing that it can be considered as blamable as the crime of rape. Also, as the scope of the act of having sex with a child or juvenile by force is very wide, depending on specific cases, punishment for the crime can be severer than or at least same as for that of rape. The possible unreasonableness in the imposition of sentence that the Instant Provision imposes the same punishment as rape can be cured by judge’s case-specific decision with reference to surrounding circumstances. Therefore, the fact that the punishment for the crime imposed by Instant Provision is the same as that for rape does not necessarily mean that the Instant Provision violates the principle of equality, running afoul of systemic legitimacy and balance in criminal punishment.

The Instant Provision was legislated in consideration of the fact thatrape is generally committed by men due to the physical and physiologicaldifference between men and women; social and ethical perception of having sexual relations; and the recognized difference of the nature or severity of damage between men and women. Therefore, the legislature’s decision to impose grave punishment on having sex with a female child or juvenile cannot be considered arbitrary beyond the scope of legislative discretion.

Summary of the Dissenting Opinion by Three Justices

1. Violation of the rule of clarity

There are various types of activities classified as the crime of having sex with a child or juvenile by force and all the children and juveniles do not share the same level of intellectual, physical, emotional and moral maturity, thereby showing great difference based on their personal traits or ages. Therefore, the crime of having sex with a child or juvenile by force includes not only activities involving tremendously severe culpability or illegality but also activities entailing relatively less harm or lower level of illegality. The Instant Provision, however, uniformly provides for punishment by imprisonment for more than 5 years simply because victims are female children and juveniles under 19 years old, without consideration of the aforementioned differences. The Instant Provision, which indiscriminately imposes severe punishment even on less culpable acts by ignoring the diverse types of activities included in the crime, violates the principle of proportionality between responsibility and criminal punishment.

2. Violation of the principle of equality

In relation to the crime of sexual intercourse with minors under Article 302 of the Criminal Code, the Instant Provision does not provide any other additional factors for aggregating punishment than the exclusion of ‘anyone for whom the first day of January of the year in which he/she reaches 19 years of age has arrived’ from its application even though he/she is considered as a minor. Even the objects of crimes under the Instant Provision and the provision of the Criminal Code are mostly overlapped because there is no such a big difference in the age element between the two provisions. Moreover, as the legal age of majority has been lowered to 19 years since July 1, 2013, it became harder to find any difference between the two crimes.

This shows that we have two different statutory provisions for the same type of criminal activity, one in the Criminal Code and another in the special act. Under our current situation where application of law is only in the hands of prosecutors who have discretion to indict, prosecutor’s choice of any one of the provisions for indictment could finally result in disadvantage to the related parties. Therefore, the Instant Provision violates the principle of equality, running afoul of systemic legitimacy and balance in criminal punishment.

Meanwhile, although there are various types of activities classified as the crime of having sex with a child or juvenile by force and the gap between the nature and degree of illegality in them is clearly recognized, the Instant Provision stipulates a uniform punishment even on the less intrusive crime of sexual intercourse in terms of violating the right to sexual autonomy compared to rape only because victims are female children and juveniles under 19 years, failing to take into consideration of the nature and degree of illegality and the difference in the ability of victims to exercise sexual autonomy. As such, the Instant Provision treats different things same and therefore, violates the principle of equality, running afoul of systemic legitimacy and balance in criminal punishment.

Supplementary Opinion to the Dissenting Opinion by One Justice

All the people who have sex with children or juveniles by force should be equally punished regardless of whether the victim is female or male. Nevertheless, the Instant Provision stipulates that only ‘female’ children and juveniles are the objects of crimes, and due to this limitation, while a case of having sex with female children and juveniles by force is punished in the same manner as punished against the crime of rape, a case of having sex with male children or juveniles by force is punished in the same manner as done against the crime of forced indecent assault, not against the crime of rape. This is a clear violation of the principle of equality as it provides different punishment simply on

the basis of victims’ sex.

The majority opinion argues that the heavier punishment imposed by the Instant Provision on the crime of sexual intercourse with female children and juveniles is resulted from the consideration that rape is generally committed by men due to the physical and physiological difference between men and women and the nature or severity of damage between men and women are different. But this opinion, which considers the act of having sexual intercourse with children or juveniles as a violation of chastity or as a cause of unwanted pregnancy, overlooks the fact that the essence of sex crime is not about loss of one’s chastity but about infringement of one’s freedom to sexual autonomy. Considering the fact that both men and women can engage in sexual intercourse and the degree of harm caused by having sexual intercourse by force is not related to the victims’ sex, I believe that such argument is improper.