Ministry of Justice Digital Sexual Crime Expert Committee Recommends Removing the Term 'Sexual Shame' from the Law

Suggested Alternative for '사람의 신체를 성적 대상으로 하는'

Ministry of Justice, Government Gwacheon Complex. [Photo by Yonhap News]

[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] The term 'sexual shame' is expected to disappear from laws punishing sex crimes and criminal verdicts in the future.

The Ministry of Justice's Digital Sex Crime Expert Committee (hereinafter referred to as the Committee) recommended to the Ministry of Justice on the 24th to "replace inappropriate terms such as 'sexual shame' specified in the legal basis for criminal judicial actions related to sex crime punishment laws with gender-neutral legal terms focused on the perpetrator's actions."

This is the Committee's eighth recommendation following the 'Improvement Plan for the Seizure System of Digital Sex Crime Victim Videos' announced on the 17th.

The Committee proposed deleting the term 'sexual shame' used in sex crime punishment laws such as the Sexual Violence Punishment Act and the Youth Protection Act, investigation and execution-related regulations such as the Human Rights Protection Investigation Rules and the Enforcement Rules of the Penal Execution Act, as well as laws like the Child Welfare Act, the Elderly Welfare Act, and the Act on the Prohibition of Discrimination against Persons with Disabilities and Remedy of Rights, and replacing it with the gender-neutral term focused on the infringed legal interest and perpetrator's actions: 'sexual objectification of a person's body.'

For example, Article 13 of the Sexual Violence Punishment Act (Obscene Acts Using Communication Media), which currently states, "A person who, for the purpose of arousing or satisfying their own or another person's sexual desire, delivers words, sounds, writings, pictures, videos, or objects that cause sexual shame or disgust to another person via telephone, mail, computer, or other communication media shall be punished by imprisonment for up to two years or a fine of up to 20 million won," should be revised to state, "A person who, for the purpose of arousing or satisfying their own or another person's sexual desire, delivers words, sounds, writings, pictures, videos, or objects that are sexual objectifications of a person's body to another person via telephone, mail, computer, or other communication media shall be punished by imprisonment for up to two years or a fine of up to 20 million won."

The Committee also recommended revising Article 14-3, Paragraph 1 of the Sexual Violence Punishment Act (Threat or Coercion Using Videos, etc.), which currently states, "A person who threatens another person using videos or copies (including copies of copies) that can arouse sexual desire or shame shall be punished by imprisonment for at least one year," to, "A person who threatens another person using videos or copies (including copies of copies) that are sexual objectifications of a person's body shall be punished by imprisonment for at least one year."

Additionally, Article 14, Paragraph 1 of the same law (Filming Using Cameras, etc.), which currently states, "A person who films a person's body that can arouse sexual desire or shame against the will of the filming subject using a camera or other similar mechanical device shall be punished by imprisonment for up to seven years or a fine of up to 50 million won," should be revised to, "A person who films a person's body as a sexual object without the consent of the filming subject using a camera or other similar mechanical device shall be punished by imprisonment for up to seven years or a fine of up to 50 million won."

The reason the Committee made this decision is that the term 'sexual shame' has been criticized as a gender-discriminatory term that alienates the diverse and complex emotional damages experienced by sex crime victims?such as fear, anger, unreality, guilt, helplessness, and shame?and forces victims to conform to a victim stereotype, thereby suppressing them.

In a survey conducted last year by the Korean Women's Association United targeting 503 women, 59.2% of respondents said that the term 'sexual shame' should be replaced with expressions emphasizing the perpetrator's actions, and 39.2% said it should be changed to other terms such as 'discomfort,' indicating a majority favoring deletion or change.

Moreover, a 2018 survey by the Korea Institute of Criminology Policy targeting 48 experts including professors, prosecutors, judges, police officers, lawyers, and NGOs found that many respondents believed the term 'sexual shame' should be changed to 'sexual discomfort' (65.2%) or 'sexual insult' (63%).

According to the Standard Korean Language Dictionary, 'shame' means "having no face to show others or feeling unworthy oneself, or such a matter."

The use of 'sexual shame' as a necessary element for establishing sex crimes in various laws punishing sex crimes and its inclusion in criminal verdicts have revealed many practical problems.

It has caused misunderstandings as if whether the victim felt 'sexual shame' determines the criminal responsibility of the sex crime perpetrator, leading lawyers in practice to encourage victims to testify that they "felt sexual shame" when drafting complaints or during witness examinations.

There have also been criticisms that prosecutors or investigators asking victims during investigations or trials, "Did you feel sexual shame at the time of the crime?" can constitute secondary victimization by forcing a distorted victim identity on the victim.

The use of the term 'sexual shame' in Korean criminal law originates from the influence of the Japanese Penal Code referenced during the enactment of the Korean Penal Code.

Japan regulates sexual violence crimes such as rape and sex-related public order crimes in the same chapter and uses 'obscenity' as an element of sexual violence crimes, whereas Korean criminal law separately regulates crimes infringing personal legal interests such as rape and molestation and crimes infringing social legal interests such as public obscenity and the now-deleted adultery crime.

However, due to the influence of the Japanese Penal Code, deriving the concept of 'molestation,' a sexual violence crime, from the 'obscenity' concept used in sex-related public order crimes caused problems. The Supreme Court defines 'obscene acts' as "acts that stimulate the sexual desire of an average person, cause sexual excitement, violate normal sexual shame, and go against sexual morality," but since the protected legal interests differ between sexual violence crimes and sex-related public order crimes, the Committee believes crimes infringing sexual self-determination under criminal law should be judged by different standards.

Looking at foreign cases, Germany and the United Kingdom have deleted the concepts of 'obscenity' and 'indecency' from crimes infringing sexual self-determination through legal amendments and introduced the concept of 'sexual acts.'

Accordingly, the Committee judged that a neutral concept focusing on 'violence mediated by sex' rather than sex itself needs to be established and proposed replacing the term 'sexual shame' with the gender-neutral term focused on the infringed legal interest and perpetrator's actions, 'sexual objectification of a person's body.'

As stated in the Committee's fifth recommendation, the term 'sexual harassment,' currently used in many laws, is inappropriate as it trivializes sex crimes and dilutes their criminality, so the Committee reiterated its recommendation to replace it with 'sexual bullying.'

The Committee stated, "If this recommendation is realized, it will protect sex crime victims from stereotypes and secondary victimization demanding victim identity stemming from the term 'shame,' and promote social understanding of the differences and diversity of emotions felt by sex crime victims, contributing to the realization of therapeutic justice such as substantial crime victim recovery."

It also expressed expectations that "by clearly establishing the criteria for criminal responsibility for sex crimes as a legal concept that can objectively judge the perpetrator's actions themselves, trust in criminal justice will be restored."

The Ministry of Justice stated, "We will meticulously review laws and internal regulations affecting citizens' rights and obligations to identify and improve any prejudices or gender-discriminatory concepts against sex crime victims, and will continuously strive to improve misconceptions about sex crimes."

This content was produced with the assistance of AI translation services.