Video Recording Statement of Child Victim of Sexual Assault

[25-2(B) KCCR 621, 2011Hun-Ba108, December 26, 2013]

In this case, the Constitutional Court of Korea held that Article 18-2(5) of the Act on the Protection of Children and Juveniles Against Sexual Abuse, which restricts the defendant's right to confrontation by allowing courts to admit into evidence video-recorded material containing the statements of the child victim of sexual assault without requiring the child to appear in court for a statement, does not infringe on the defendant's right to a fair trial.

Background of the Case

1.The complainant was accused of forcibly sexually assaulting the children victims who are aged 8 and 9. The court of first instance (Gongju Branch of Daejun District Court, 2010GoHap51) admitted into evidence and reviewed the video-recorded material containing the child victims' statements. There was, however, no direct examination of the child victim witnesses.

2.Upon conviction in the court of first instance, the complainant appealed (Daejun High Court 2010No573) and moved the High Court to request constitutional review of Article 18-2 (5) of the former Act on the Protection of Children and Juveniles Against Sexual Abuse. The complainant argued the provision restricts the defendant's right to confrontation by allowing courts to admit into evidence video-recorded material containing statements of the child victim of sexual assault without requiring the child to appear in court for a statement. When the High Court denied the motion, the complainant filed this constitutional complaint in accordance with Article 68(2) of the Constitutional Court Act.

Provision at Issue

The subject matter of review is the constitutionality of the part in Article 18-2 (5) of the former Act on Sexual Protection of Children and Youth (amended as Act No. 10260 on April 15, 2010, but before revised as Act No. 11287 on February 1, 2012) that allows courts to admit into evidence the statement of victim contained in video-recorded material when the credibility is established by the statement of someone who is in fiduciary relationship and has sat in company with the victim at the time of investigation (hereinafter the “Provision”). The contents are as follows.

Former Act on the Protection of Children and Juveniles against Sexual Abuse (amended as Act No. 10260 on April 15, 2010, but before revised as Act No. 11287 on February 1, 2012)

Article 18-2(Recording, Keeping, etc. of Images) (5)The statement of a victim contained in the images recorded in accordance with the procedures provided for in paragraphs (1) through (3) may be used as evidence when the credibility is established on the date of preparation of a trial or on the date of a trial, by the statement ofthe victim ora person who is in fiduciary relationship and has sat in company with the victim at the time of investigation.

Summary of the Decision

1. The right to confrontation and the right to a fair trial

The Provision restricts the right of the defendant to cross-examination by authorizing that video-recorded material containing a child victim's statement be admitted into evidence without requiring the child victim to appear in court for a statement. The Criminal Procedure Act limits the admissibility of hearsay evidence in order to realize the right to a fair trial under Article 27 of the Constitution by meaningfully guaranteeing

the right to confrontation. The issue is, therefore, whether the Provision infringes on the complainant's right to a fair trial by exceeding the constitutionally permitted level of restriction.

2. Whether the principle against excessive restriction is violated

The Provision restricts the right of a defendant to cross-examination, which is intended to prevent secondary victimization that could affect the child victim of sexual assault when the child has to appear in court and testify. The legislative purpose is legitimate and the means adopted to achieve the purpose is proper.

The Provision does not intend to forbid the defendant from exercising his or her right to cross-examination; rather, it only aims to harmonize between the requests to guarantee the defendant's rights in criminal procedure and to protect the child victim of sexual assault from harm, by preventing a situation in which every child victims are invariably forced to appear in court. A court, after it considers all the circumstances including the need to discover the substantive truth and to safeguard the child victim from any harm, may question a child victim as a witness, in which case the defendant's rights to participation and to confrontation would be guaranteed.

Children's statements are distinctive in character in that they are easily affected by implication and are highly likely to be distorted due to their limited cognitive intelligence and memory. It is more effective in discovering the substantive truth when the courts use a scientific, professional approach to analyze the video-recorded material, which preserves the lively statements at an early stage of the case, rather than a harsh cross-examination. The video-recorded material also reveals the process of obtaining the statements and thereby offers sufficient information to determine the credibility of the child's statements. It is for this reason why the video-recorded material would not necessarily work

disadvantageously toward the defendant.

Additionally, because the video-recorded material mechanically reproducesthe actual scenes of making the statements, it reduces the need to verify them through cross-examination compared to other forms of evidence.

Other means such as conducting cross-examination through video transmission would not be an alternative to replace the Provision, because such system cannot protect the child from being repeatedly required to remember the horrible incident in which the child was victimized.

As such, the Provision does not infringe on the defendant's right to fair trial in violation of the principle against excessive restriction.

Dissenting Opinion of Three Justices

Allowing the defendant to be convicted based on the victim's unilateral statements, without giving the defendant the opportunity to impeach, falls short of the minimum level of fairness and procedural justice required by the right to a fair trial and the principle of due process guaranteed under the Constitution, and thus in principle cannot be permitted.

Because children are prone to suggestions in making statements and are highly likely to fail to correctly remember the source of the memory, there is a strong necessity to have the statements tested by cross-examination. The Provision nevertheless completely restricts the defendant's right to cross-examination for the protection of the child victim.

The Provision allows the courts to render a conviction against the defendant solely based on the victim's unilateral statements while restricting the defendant's right to cross-examination. Even if the legislative purpose bears great importance, there exist no unavoidable circumstances that justify such restriction, nor does it make a reasonable

and appropriate means to achieve the legislative purpose. The significance of the right to cross-examination lies in the fact that it allows the courts to obtain ‘worthy evidence’ to discover the substantive truth and to secure procedural legitimacy that would make the defendant concede the result of the trial. Protection afforded to one party which eliminates the above mentioned aspects may threat the discovery of substantive truth, which ultimately would not serve for the benefit of the victim nor would make the defendant be convinced to accept the trial result.

In addition, other provisions in the law offer various means to prevent secondary victimization of child victims without totally depriving the defendant of the right to cross-examination. These include conducting witness examination using video transmission, preventing disclosure of the proceedings, and allowing a person in fiduciary relationship to sit in company. Further, the legislative purpose of the Provision can be achieved by actively using, from the early stages of the proceedings, the evidence preservation procedure set out under the Criminal Procedure Act, which ensures the defendant's right to participation.

In the end, the special provision on admissibility of evidence deprives the defendant of the right to cross-examination, which is the most important right in criminal procedure derived from the right to a fair trial, by solely focusing on the protection of the child victim. Thereby it fails to achieve procedural justice mandated by the right to a fair trial.