In this blog post, we will consider various perspectives on justice surrounding the punishment of sex offenders and the direction our society should take.
Recently, violent crimes have been on the rise in South Korea. Not only are sex crimes against adult women becoming more frequent, but sex crimes against infants and adolescents are also becoming more common, and related incidents are frequently reported in the news. As a result, the issue of sentencing for sex offenders and the treatment of sex offenders who have served their sentences has become a subject of controversy. In particular, in the case of Oh Won-chun, who brutally murdered a woman in her 20s, the court reduced his sentence from death to life imprisonment, and the possibility of him being imprisoned in a prison exclusively for foreigners has been raised, leading to growing calls for justice. Although there is a growing desire for justice in our society, few people can give a clear answer to the question, “What is justice?” Therefore, before discussing the treatment of sex offenders, we must first understand what justice is and how sex crimes are currently punished in Korea.
In his book What Is Justice?, Michael Sandel presents three ways of understanding justice from an academic perspective. These approaches are the maximization of happiness, free market capitalism, and moral political philosophy.
First, the maximization of happiness is the view that justice is the maximization of happiness for individuals and society. In other words, all choices and their consequences are considered just when they maximize the happiness of society and individuals. This is based on utilitarianism and assumes that outcomes can be converted into a single measure of happiness. However, this approach is likely to lead to various moral dilemmas. For example, in a situation where five people can be saved by sacrificing one person, a utilitarian approach may conclude that sacrificing one person is beneficial. This implies the extreme conclusion that killing one person to save five people is justified, and most people find it difficult to accept such a decision as morally acceptable. Utilitarians see this moral aversion not as a flaw in utilitarianism, but as an emotional flaw in the individuals who practice it. Furthermore, since the concept of happiness itself is relative rather than absolute, using it as a single criterion can be problematic.
Second, free market capitalism places the highest value on freedom and seeks to understand justice through freedom. It sees justice as respecting voluntary agreements and choices between adults. However, this approach also has its dilemmas. If voluntary agreements between all adults are just, then people can choose to trade part or all of their bodies. For example, one could argue that it is possible to hire someone to serve in the military in exchange for money. However, this is a choice forced by survival, so it is difficult to consider it “voluntary.” The question is whether “completely voluntary choice” can exist in reality.
Third, moral political philosophy views justice as closely related to virtue and the good life. A just society must be one with a firm view of virtue and the good life. This approach ultimately leads to the legal definition of virtue and the good life, which is difficult to accept in a free democratic society. Furthermore, if the standards of virtue and the good life are legally defined, it is almost impossible to reach a social consensus.
In Korea, the ultimate goal of punishing sex offenders is to prevent recidivism and facilitate their reintegration into society. Most countries share these goals, but the severity of punishment varies greatly from country to country. In Korea, the sentences for sex offenders are relatively light compared to other countries, with a maximum sentence of 30 years, but the actual prison term is around 10 years. In the case of child sex crimes, the average sentence is 6 to 9 years, with no additional punishment after serving the sentence. In contrast, in the United States, although there are differences between states, child sex offenders can be sentenced to anywhere from 25 years to life in prison, and their personal information is disclosed and they are chemically castrated. Switzerland has adopted a law through a national referendum to permanently isolate dangerous sex offenders, and China imposes the death penalty without exception for sexual assault of children under the age of 14. Japan is the only country with lighter sentences than Korea, with a statutory sentence of 10 years, but actual sentences tend to be quite heavy.
So, from the perspective of justice, how should sex crimes be punished? In the happiness maximization approach, punishing sex offenders promotes the happiness of society as a whole, including victims and their families, and causes suffering to sex offenders and their families. Therefore, it can be considered just to impose sentences that maximize social happiness.
Considering that the recidivism rate for sex crimes in Korea is about 45%, sanctions such as public disclosure of personal information, chemical castration, and social isolation, as in other countries, may be a better option than allowing sex offenders to return to society completely. From a free market perspective, punishment for sex crimes is based on the consensus of society. In other words, it is just to determine appropriate punishment based on the assumption that any member of society could be a sex offender.
Under this assumption, most people would consider the possibility of becoming a sex offender and refrain from extreme punishment, choosing instead to increase the severity of punishment. However, this method has the disadvantage of making objective investigation nearly impossible. As an alternative, the appropriate level of punishment for sex offenders and non-sex offenders could be investigated to derive an average, but this cannot be considered justice derived strictly from free market capitalism.
If justice is derived from a moral and political philosophical perspective, punishment for sex crimes begins with establishing standards of morality and good living in our society. Sex crimes are morally unacceptable, but considering the moral system of our society, which values tolerance, the rehabilitation of sex offenders may take priority. Early release and full reintegration into society may be considered just for sex offenders who are deemed unlikely to reoffend based on psychological evaluations conducted while they are serving their sentences. On the other hand, if the overall moral climate of our society is one of strict punishment and prevention of recidivism, then heavier sentences and restrictions on reintegration into society would be considered just.
From the three perspectives of justice, the justice pursued by our society differs. However, except for the maximization of happiness, what is important in the other two approaches is for each member of society to establish their own sense of justice and, through this, reach a social consensus. If the ultimate goal of law is to realize social justice, then justice can change based on careful social consensus. There are many controversial cases in Korea’s current trials and sentencing, which are due to the discrepancy between public sentiment and legal sentencing. In order for true justice to be realized in our society, its members must carefully consider justice without being swayed by temporary emotions or public opinion, and the law must also change in accordance with the social consensus of the times.
