Legal and Institutional Measures to Reform Participatory Trials for Sex Crime Cases

1) The Implementation of Participatory Trials

A defendant may request a participatory trial in accordance with Article 5¹¹ (Eligible Cases) of the Act, and the court may decide to exclude or withdraw such a request pursuant to Article 9¹² of the Act.

In the statistical data on requested, excluded, and withdrawn cases among eligible cases, it is observed that 2,232 out of 41,691 eligible cases were filed for as participatory trials (5.4%). Table 1 illustrates the number of requested, excluded, and withdrawn cases by crime type.¹³

If the combined number of excluded and withdrawn cases are subtracted from all requested cases, a total of 979 cases remains. According to the data, among the 2,232 requested cases, 848 cases (38.0%) were tried with a jury (despite some minor discrepancies, these figures illustrate the trends of participatory trials for sex crimes).¹⁴

Among the total of 10,272 sexual crime cases (bodily injury by or resulting from rape, in addition to violation of the Sexual Crime Punishment Act), defendants requested a participatory trial in 452 cases (4.4%), which is 1% lower than the average request rate of 5.4%. In sexual offense cases, the rate of exclusion against requests was 25.4% (115 out of 452), exceeding the overall average (17.8%). The statistical analysis shows that not only defendants but also victims in sex crimes tend to avoid a participatory trial.¹⁵

Thus, the cases related to bodily injury resulting from robbery, homicide, etc., account for a relatively high share in the total participatory trials, while sexual crimes hold a low share. The numbers of cases tried with a jury are categorized by offense type as shown in Table 2 below.¹⁶

Out of all cases tried by jury, sexual crimes numbered only 144 cases or 16.9%. This also means that a mere 1.4% of the entire 10,272 sexual crime cases eligible for a participatory trial were actually tried before a jury.

2) Results of Participatory Trials

Table 3 shows that the actual prison sentences were pronounced for 644 out of 848 persons, meaning that 75.9% of the defendants in participatory trials received actual prison sentences. The distribution of sentences by offense type is illustrated in Table 3 below.¹⁷

In the case of sex crimes, the rate of actual prison sentences was 71.3%, second only to homicide cases (82.5%). In particular, among the entire 48 cases that received non-guilty verdicts (5.7% of the total participatory trial cases), 19 cases were sex crimes, accounting for 39.6% of the total acquittals in participatory trials. This figure of 39.6% was a lot higher than 3.2%, the rate of not guilty rulings delivered by collegiate panels in criminal courts of the first instance across the nation during the same period.¹⁸ The reason for such a discrepancy in sex crime trial results is that it is difficult to collect evidence or offer proof beyond a reasonable doubt due to the distinct nature of sexual crime cases (Heo & Jo, 2012, p. 381; C. H. Lee, 2011, p. 68; Ryu, 2008, p. 366).

In addition, there may be an explanation for the phenomenon in which the defendants of sex crimes in participatory trials actively claim their innocence to the jurors who give a guilty or non-guilty verdict on the crimes, unlike bench trials in which defendants of sexual crimes tend to admit to their crimes and challenge for sentencing. However, we believe that there are few criminal defendants who would adopt such a trial strategy in a situation in which the trial procedures for the verdict and for sentencing are not separate (Moon, 2013, pp. 193-194; H. J. Lee, 2011, p. 225).

The judges’ rulings matched the jury’s verdicts in 782 out of 848 cases (92.3%). In most of the 66 cases in which the verdicts and rulings did not match, the jury rendered a not guilty verdict, whereas the judge found defendants guilty (62 cases in total).¹⁹ Jury verdicts by offense type are shown in Table 4 below.²⁰

When the jury fails to reach a unanimous verdict, they reach a decision through majority vote. In sex crime trials, the rate of verdicts based on a majority vote is relatively higher than that of other criminal cases. For example, the rate is 28.4% (23 out of 81 cases) in guilty verdicts while it reaches 41.9% (13 out of 31 cases) in not guilty verdicts. The reason for a relatively low rate of unanimous verdicts in sex crime cases can be attributed to differing personal views regarding sex crimes (C. H. Lee, 2011, p. 69).

3) Appeals against Decisions by Participatory Trials

The appeal rate of the cases in civil participatory trials was 82.0%, higher than that of collegiate panels in criminal courts of the first instance (58.1%) during the same period.²¹

In addition, appeals by prosecutors (45.5%) were almost twice as frequent as those for ordinary bench trials (24.7%). The rate of appeals by defendants (63.9%) also exceeded that of ordinary trials (48.6%). Furthermore, as illustrated in Table 6, 476 out of 628 cases²² (75.8%) processed in the appellate courts were dismissed, while the rate of reversal was 23.6% (148 out of 628 cases) as shown in Table 7. The fact that this figure was lower than the rate of reversal at a High Court (40.4%) during the same period was analyzed to mean that appellate courts tend to respect rulings by a court of first instance in which citizens participated.²³

The relatively high rate of appeal against the rulings by participatory trials, both by prosecutors or defendants, reveals that both sides tend not to accept the rulings of a first instance court with jury. Along with this, the visible trend in which the appellate courts tend to respect the decision of the first instance courts with jury actually leads to the suspicion that this judicial reform, i.e., the introduction of participatory trials, yet remains enclosed in a so-called “league of their own,” instead of enhancing the public’s trust in judicial practices and promoting the democratic legitimacy of the judiciary.

1) Current Status

Before the Act was amended by Act No. 11155 on January 17, 2012, it had taken a dual approach, expressly prescribing criminal cases eligible for a participatory trial while delegating some crimes to the Rules of the Supreme Court within a certain scope.²⁴ However, the Act, which came into effect on July 1, 2012, has extended the scope of eligible cases to those under jurisdiction of a collegiate panel under Article 32 (1) (excluding Subparagraphs 2 and 5) of the Court Organization Act in order to improve public confidence in the judiciary. When the purport of amending the Act is considered along with the interpretation of the structure of relevant provisions, sexual crime cases that are eligible for a participatory trial are the cases that fall under jurisdiction of a collegiate panel under Article 32 (1) of the Court Organization Act (cases falling under the capital punishment or imprisonment with or without prison labor for life or for not less than one year) among “sexual crimes prescribed under Article 2 of the Sexual Crime Punishment Act” that may be subject to a decision to exclude.²⁵

2) Issues

However, when applying the above interpretation, a logical error occurs in that cases of murder, homicide, and rape by committing piracy²⁶ (Article 340 (3) of the Criminal Act) — which logically should be eligible for a trial with jury — become ineligible for a participatory trial. The problem does not lie in the scope of eligible cases; rather, it lies in fact that the victims of murder, homicide, and rape by committing piracy or their legal representatives cannot apply for the court’s decision to exclude the case since such a crime does not fall under the category of “sexual crimes” under Article 2 of the “Sexual Crime Punishment Act.”

In the amendment²⁷ of the Act, Subparagraph 3 was added under Article 9 (Decision to Exclude) (1) to prevent secondary victimization, as victims’ personal information and crime details are disclosed in the participatory trial procedure. In the same context, the court should also be allowed to exclude the case when the victims or their legal representatives of the murder, homicide, and rape by piracy case do not desire a participatory trial.²⁸

3) Improvement Measures

a) To correct the matter above, a revised bill (Bill No. 1904043) of the Act was recently submitted to the National Assembly and referred to the 1st Subcommittee of Legislative Proposal Review in the Legislation and Judiciary Committee.²⁹ According to evaluation reports on the bill or discussions conducted by the Legislation and Judiciary Committee, Bill No. 1904043, which aims to add murder, homicide, and rape by committing piracy to the category of crimes subject to a decision to exclude, is being viewed as “appropriate to protect victims” and a “reasonable legislation” (Lim, 2013, p. 4).³⁰ Although the authors of this article completely agree with the purpose of Bill No. 1904043, certain issues need to be pointed out in regard to the form or technique of legislation.

The current Act adopts a legislative format that extends the scope of eligible cases from expressly enumerated crimes to cases under jurisdiction of a collegiate panel pursuant to Article 32 (1) of the Court Organization Act and adds sexual crimes prescribed under Article 2 of the “Sexual Crime Punishment Act” to the cases subject to the decision to exclude in order to prevent secondary victimization of sex crime victims. When this format is considered, Bill No. 1904043 should instead be revised in a way that murder, homicide, and rape by committing piracy is inserted into Article 2 (Definition) of the Sexual Crime Punishment Act; this is because Bill No. 1904043 was proposed since murder, homicide, and rape by committing piracy is not expressly prescribed as “sexual crimes” under Article 2 of the Sexual Crime Punishment Act.

b) Furthermore, the Partially Revised Bill of the Ministry of Justice,³¹ which is based on the final form confirmed and resolved in the 8th meeting (March 6, 2013) of the Committee for Citizens’ Participation in the Judicial System of the Supreme Court, revises the requirement for a participatory trial, which is currently proceeded only upon the defendant’s request. In other words, it allows a criminal case to be tried with jury either by the court ex officio or at the request of the prosecutor, even without the defendant’s request.³² Such a “partially forced” mechanism, however, raised concerns about a possible infringement of the defendant’s constitutional rights (i.e., the defendant’s right not to be tried in a participatory trial) at the public hearing held on February 18, 2013. Accordingly, a proviso was added to mandatorily grant the defendant an opportunity to state his/her opinion before the court decides to transfer the case to a participatory trial, aiming to dispel the worries about the infringement of the constitutional rights.³³

In accordance with the Partially Revised Bill of the Ministry of Justice revised and proposed as above, a participatory trial must be held when the court makes a decision³⁴ to transfer the case either by ex officio or by the prosecutor’s request, or when the defendant applies for a participatory trial, and the foregoing shall not apply if the court makes a decision to exclude the case. As such, whether by the court’s decision to transfer or by the defendant’s application, a participatory trial is held when the defendant desires to be tried with jury in an eligible case. When it comes to exclusion, however, a court may decide on its own discretion to not exclude the case even when victims, and sex crime victims in particular, do not wish for a participatory trial (a reverse interpretation of Article 9 (1) of the Act), and an immediate appeal may be filed against a decision to exclude (Article 9 (3) of the Act). In other words, by law, when it comes to the participatory trial procedure, protecting a criminal defendant’s request for a participatory trial eventually precedes the respect for a sex crime victim’s objection to a participatory trial. To dispel worries over the secondary and even tertiary victimization of sex crime victims in a participatory trial, considerations should be taken to equally deal with both the defendant’s right to request and the victim’s right to object to a participatory trial.³⁵

1) Current Status

It is essential to select jurors for a participatory trial proceeding. Under the current law, jurors are selected “among citizens of the Republic of Korea who shall be not less than 20 years of age” (Article 16 of the Act). Nine jurors shall participate in a participatory trial for an eligible case the statutory punishment for which shall be death penalty or life imprisonment with or without prison labor; seven jurors shall take part in a participatory trial for the remainder of criminal cases; and five jurors are allowed if the defendant admits the charges (Article 13 of the Act).

Given that the percentage of cases tried with five jurors was less than 10% of all participatory cases³⁶v, the Committee for Citizens’ Participation in the Judicial System has decided to abolish juries made up of five jurors. On the other hand, the committee has resolved to maintain the current jury of nine jurors in principle in regard to crimes for which the statutory punishment includes the death penalty or life imprisonment with or without prison labor, while allowing a choice of seven or nine jurors regardless of statutory punishment, if agreed by the parties.³⁷ Thus, the partially revised bill of July 4, 2013, drafted by the Ministry of Justice has deleted the proviso of Article 13 (1), making a participatory trial by nine jurors the basic form.

2) Issues

Neither the current Act nor the finally drafted Partially Revised Bill of the Ministry of Justice contains a “composition of jurors” intended to protect sex crime victims and prevent their secondary victimization. The revised bill (Bill No. 1904043) recently submitted to the National Assembly makes the participation of female jurors mandatory in certain criminal cases like sex crimes, aiming to implement an institutional mechanism through which to reflect a sound gender-sensitive perspective in the composition of jurors. Pursuant to the revised bill, a certain number of female jurors must take part in a participatory trial for sex crimes or domestic violence cases. Since distorted notions including paternalism, Confucian sense of ethics, and gender-based different point of view on sex, can influence a participatory trial for such crime cases, the bill prescribes the participation of at least four females out of nine jurors, three out of seven jurors, and two out of five jurors.³⁸

3) Improvement Measures

Following the proposal of the revised bill mentioned above, the Criminal Act was partially amended (by Act No. 11731 on April 5, 2013) and came into force on June 19, 2013. Under the amended Criminal Act, the scope of a potential victim of sex crime has been expanded from a “woman” to a “person,” signifying that a man can also become a victim of a sex crime. In addition, after reviewing statistics for the experimental period, the Committee for Citizens’ Participation in the Judicial System agreed upon a recommendation to eliminate five-member juries in the final form of the Korean citizen participatory trial system.

The data on participatory trials held over the last five years show an even distribution of gender in juries. To be more specific, 6,803 (28.6%) persons were selected as jurors or alternate jurors among 23,778 juror candidates.³⁹ In addition, as in Table 9, women accounted for 49.3% of juror candidates and 49.7% of jurors and alternate jurors, indicating no significant imbalance in gender composition.⁴⁰

Also, no significant difference between male and female jurors has been reported in their perception of the judge’s opinion and the impact of the judge’s opinion on their decisions.⁴¹ Under the current law, the jury may hear opinions of judges who take part in the trial when a majority of jurors requests to do so during deliberation (the proviso of Article 46 (2); if the jury fails to reach a unanimous verdict of guilt or non-guilt, the jury must hear opinions of judges who take part in the trial before delivering a verdict (the first sentence of Article 46 (3)). As for the impact of the judge’s opinion on jurors’ decision on guilt or non-guilt, it was surveyed as illustrated in Table 10 that female jurors are influenced by it slightly, while male jurors are impacted only a little.⁴², ⁴³

Therefore, although mandating a certain number of female jurors in a participatory trial for specific crime cases may be necessary to ensure a fair composition of jurors, such a decision should first thoroughly review the facts stated above and the accumulated data on the operation of participatory trials up to now.

1) Current Status

The nature of sexual crimes means they are usually committed in circumstances, which often leads to a lack of evidence or the victim being the only witness to the crime (Chung, 1999, p. 310 et ss). In addition, alleged sex offenders often aim at a favorable ruling by undermining the credibility of the victim/witness’s statement. Therefore, a crucial aspect of protection for the victim of a sex crime is to prevent secondary victimization during the trial and investigation procedures (Chung, 2000, p. 192 et ss).

The danger of secondary victimization during trial proceedings for a sex crime case can first be reduced by conducting closed-door sessions.⁴⁴ That is, the judge panel can decide to conduct a participatory trial for sex crime cases without disclosing the proceedings to the public; this does not mean, of course, that the trial is closed to the jury as well. In a participatory trial, the victim’s identity and other private matters are inevitably revealed to the jurors. For this reason, the Act imposes upon all jurors the duty to not divulge confidential information gained while performing their duties (Article 12 (3) of the Act), prescribing that any juror violating this duty shall be punished by imprisonment with prison labor for not more than six months or by a fine not exceeding three million won (Article 58 of the Act).

As is well known, while the right to be tried in an open-door trial is guaranteed for a criminal defendant, the request for a closed-door trial is prescribed in law as a victim protection measure to prevent secondary victimization of a sex crime victim.⁴⁵ Even if a sex crime victim requests a closed-door session for a participatory trial, the trial proceedings are open to jurors. If the purpose of a closed-door session is to prevent secondary victimization in the procedure of an investigation or a trial, the victim should be granted the right to object to the defendant’s request for a participatory trial for the case in which such a victim is involved.⁴⁶

The provision on the victim’s right of objection was newly established in the Amendment of the Act on January 17, 2012. The victim’s objection accounts for 27 (21.8%) out of 124 cases excluded in 2012, and 27 (6.8%) out of a total of 398 cases excluded during the five-year experimental period.⁴⁷ In addition, out of a total of 327 cases during the five-year pilot period for participatory trials, there were 28 cases (8.6%) in which a court excluded the case as “it was considered inappropriate to proceed to a participatory trial” (Article 9 (1) 4 of the Act) despite the defendant’s request for such a trial.⁴⁸

These institutional guarantees⁴⁹ to prevent secondary victimization during criminal procedures, however, have not been sufficient to wholly negate the psychological burden felt by the victims in regard to their identity and the facts of the crime being disclosed. This is because even the limited disclosure of their information remains a psychological burden for the victims/witnesses of sex crimes.⁵⁰

As mentioned above, witness protection programs, introduced mainly to safeguard victims as witnesses in the existing ordinary proceedings, have been insufficient to prevent secondary victimization of sex crime victims or eliminate psychological stress on the part of victims/witnesses( T. K. Kim, 2008, p. 140 et ss; C. H. Lee, 2011, p. 77 et ss).

Thus, even though some argued that preparing stronger and more detailed measures is necessary to protect sex crime victims and their families in cases tried by jurors (who are selected from among a large number of unspecified candidates) (In particular, see C. H. Lee, 2011, p. 78 et ss),⁵¹ this opinion was not reflected in the Partially Revised Bill of the Ministry of Justice.

2) Review of Improvement Measures

a) A view holds that, in order to reduce the psychological burden experienced by sexual crime victims, a limit should be placed on using the sexual behavior or predisposition of a sex crime victim as evidence in a criminal trial(Cho, 2002, p. 178 et ss; Cho, 2004, p. 97 et ss). This is because the defendant in a sex crime case will generally opt to present the victim’s sexual history or sexual predisposition as evidence to weaken the reliability of his/her statement and cast responsibility on the victim, infringing the victim’s personal rights and leading to secondary victimization (Ryu, 2008, p. 373).

The aforesaid issue requires appropriate action since a sexual crime victim’s right to object to a participatory trial is not acknowledged currently. Under the current law, infringement of a sex offense victim’s personal rights can be prevented to a certain degree through the presiding judge’s restriction of unnecessary oral proceedings (Article 299 of the Criminal Procedure Act) (C. H. Lee, 2011, p. 79). Such restriction is, however, allowed only “when a statement or inquiry of the parties is repetitious or is a matter irrelevant to the trial,” to the “extent that it does not harm the substantial rights of the parties connected with the lawsuit.” Thus, it is more likely to remain as a theoretical possibility, since the presiding judge’s restriction of irrelevant oral proceedings should not limit the exercise of the defendant’s actual right to defend. In addition, even such a theoretical possibility is insufficient to prevent the victims completely from stress. In effect, the only appropriate solution becomes a legislative measure.⁵² In coming up with such a legislative measure, the rape shield law of the U.S. can serve as a reference.

In order to guarantee the defendant’s rights, prevent infringement of the victim’s personal dignity and secondary victimization, and have trial proceedings be concentrated on discovering substantive matters of truth such as the defendant’s guilt or innocence, not on the victim’s morality in the criminal procedure of a sex offense case, a newly established provision on prohibited use of a sexual crime victim’s previous records of sexual relationship as evidence should include the following: a victim’s history of sexual behavior and predisposition shall not be offered as evidence except ① when the evidence is to prove that the source of semen or injury is someone other than the defendant; ② when the evidence is to prove the victim’s consent to sexual behavior with the defendant; and ③ when the evidence is to prove that the victim’s accusation of rape is false. However, ④ evidence may be admissible if the judge determines that such prohibited use of evidence seriously violates the defendant’s constitutional rights (Cho, 2004, p. 109).⁵³

When the 2013 amendment to the Sexual Crime Punishment Act is taken into account, some might argue that the opinion above is hardly in harmony with the criminal procedure system of Korea. However, it is still necessary to make a legislative and policy-wise decision on whether to delegate the protection of sex crime victims from secondary victimization in the trial proceedings, an important issue in the participatory trials for sex crimes and even in the relation with the jury, only to the judge panel’s discretion or whether to prescribe in law that the use of evidence in such a hearing that may lead to secondary victimization in the trial procedure shall be prohibited.

b) There is an argument to implement a measure that prohibits depositions by child or juvenile victims of sex crimes (C. H. Lee, 2011, p. 79). Supporters of this view find their model in the Act Relating to Improving Vermont’s Sexual Abuse Response System of the U.S. The Vermont legislature revised Vermont’s Rules of Criminal Procedure (V.R.Cr.P.) in 2009 to prohibit depositions of child victims of sex crimes without agreement of the parties or an order of a court (Mongeon, 2011, p. 4).⁵⁴

V.R.Cr.P. prohibits depositions of victims under the age of 16 in a criminal prosecution involving lewd and lascivious conduct, lewd and lascivious conduct with a child, sexual assault, aggravated sexual assault, or aggravated sexual assault of a child, except by agreement of the parties or by order of the court.⁵⁵ In order for the court to order the deposition of a child victim, the court must find: ① that the testimony of the child is necessary to assist the trial; ② that the evidence sought is not reasonably available by any other means; and, ③ that the probative value of the testimony outweighs the potential detriment to the child of being deposed (Mongeon, 2011, p. 8). It provides that in making these findings, the court must consider both the availability of recorded statements of the victim and the complexity of the issues involved.⁵⁶

Furthermore, V.R.Cr.P. 15(e)(5)(C)(i) prescribes that whenever a deposition of a child victim of sex crimes occurs, the court must issue a protective order “to protect the deponent from emotional harm, unnecessary annoyance, embarrassment, oppression, invasion of privacy, or undue burden of expense or waste of time.”⁵⁷ In addition, in accordance with V.R.Cr.P. 15(e)(5)(C)(ii), an attorney must be appointed for such a victim whenever a deposition occurs.

The amendment of V.R.Cr.P. by the Vermont legislature received strong support from the Vermont Department of State’s Attorney and Sheriffs. Before the amendment, meritorious cases had been often dismissed because children could not endure the painful experience of a deposition. The revision prevented such cases from happening, and consequently, the 2009 amendment to the deposition rule is regarded as being highly successful(See Mongeon, 2011, p. 4).

c) The authors of this article, however, believe that those who argue for introducing the prohibition of depositions by child victims of sex crimes fail to understand the legislative purport of V.R.Cr.P. or abandon the prosecution of sex offenders, as well as the pursuit of substantive truth, solely for the sake of protecting child victims of sex crimes. As mentioned previously, in most sex crime cases, the victim serves as the only evidence available. Thus, the argument for the establishment of a provision prohibiting depositions of child victims without consent of the parties or a court’s order can lead to an unexpected result which can nearly amount to giving up on punishing sex crimes against children.

In addition, Korea has already prescribed special cases in the “Act on the Protection of Children and Juveniles from Sexual Abuse (hereinafter the “Children and Juveniles Act”)” (wholly amended by Act No. 11572 on December 18, 2012) to prevent infringement of privacy of child and juvenile victims and their secondary victimization.⁵⁸ In particular, the law includes provisions on recording or preservation, etc. of video (Article 26), special cases concerning preservation of evidence (Article 27), obtainment of the president judge’s approval for reading or printing documents or evidence (Article 29), and special cases pertaining to appointment of lawyers for child and juvenile victims (Article 30), striking a good balance between protection of child and juvenile victims of sex crimes and finding of substantive truth.

For instance, the Constitutional Court of Korea ruled that Article 18-2 (5) (currently Article 26 (6)) of the Children and Juveniles Act — under which the video recording of eight- and nine-year-old child victims in a sex crime case is acknowledged as evidence without statement in court made by the child victims — does not violate the defendant’s right to a fair trial, pronouncing the provision to be constitutional.⁵⁹ After a comprehensive consideration of the gravity of the public interest to protect child victims of sex crimes, the level of limitation on the right to cross-examination, and the actual impact of the video recording on the exercise of the defendant’s right to defend, the Court ruled that the provision may limit the defendant’s rights to a certain extent but does not breach the principle of proportionality, although the Court recognized the importance of defendants’ constitutional rights. Therefore, given the legislative purport and tenor of the Children and Juveniles Act, a more considerate approach will be necessary in regard to improvement measures aiming to prohibit depositions of child or juvenile victims of sex crimes in the manner of V.R.Cr.P.