Stepfather in 40s Molests Stepdaughter's Friend... Child Sexual Crime Victim's 'Video Testimony' Deemed Unconstitutional, Conviction Overturned

1st and 2nd Trials Reject Claim of 'No Similar Sexual Acts or Molestation' and Sentence to 7 Years Imprisonment
Supreme Court: "Evidence from Videos Not Admissible Due to Constitutional Court's Unconstitutionality Ruling"

[Asia Economy Reporter Heo Kyung-jun] Following a constitutional court ruling that declared unconstitutional the legal provision allowing video recordings of statements from child and adolescent victims to be used as court evidence, the Supreme Court overturned the prison sentence given to a man in his 40s who molested his stepdaughter's friend.

The Supreme Court's 3rd Division (Presiding Justice Kim Jae-hyung) announced on the 8th that it overturned the lower court's ruling sentencing Mr. A (49), who was charged with violating the Sexual Violence Punishment Act (coercion and molestation of a minor under 13), and remanded the case to the Busan High Court.

In 2020, Mr. A was prosecuted for molesting B (then 12 years old), a friend of his stepdaughter, by touching her body while she was asleep and committing quasi-sexual acts through coercion. Both the first and second trials last year rejected Mr. A's claim that "there was no quasi-sexual act or molestation" and sentenced him to seven years in prison. The courts did not accept Mr. A's claims due to video recordings of B's testimony and the investigative process filmed by law enforcement agencies.

Although Mr. A did not consent to the use of the video and transcripts as evidence, the lower courts did not summon B to court in order to protect the minor victim of sexual violence. The courts based their decision on the former Sexual Violence Punishment Act Article 30, Paragraph 6, which allows the use of testimony from sexual violence victims under 19 years old or those with disabilities who have limited capacity for object discrimination or decision-making, as evidence if it is recognized as "genuine" by a trusted person present during the investigation or a testimony assistant.

However, the Constitutional Court ruled unconstitutional in December last year?about two months after the second trial's verdict in this case?the part of Article 30, Paragraph 6 of the Sexual Violence Punishment Act concerning "sexual violence victims under 19 years old." The court acknowledged the provision's legitimacy in preventing secondary harm to minor sexual violence victims testifying in court but found that it excessively restricted the defendant's right to cross-examination, thereby unduly limiting the right to defense. Consequently, the "sexual violence victims under 19 years old" clause lost its effect immediately upon the Constitutional Court's decision.

The Supreme Court judged that the second trial's ruling, which used the video and transcripts as evidence of guilt, was incorrect. The effect of the unconstitutional ruling applies retroactively to this case, which was still under trial at the time of the decision. In other words, if the appeal trial had already begun and was ongoing when the constitutional ruling was made, the ruling must be applied retroactively.

The court stated, "The unconstitutional legal provision cannot serve as grounds to recognize the evidentiary value of the video in this case, nor can it justify the evidentiary value of the transcripts."

Furthermore, the Supreme Court also raised concerns about Article 26, Paragraph 6 of the Youth Protection Act, which preserves video recordings of statements and investigative processes of victims of sexual crimes against children and adolescents, and allows the victim's testimony recorded in the video to be used as evidence if its authenticity is recognized through testimony by the victim or a trusted person present during the investigation at the preparatory or trial hearing.

While the Supreme Court acknowledged that Article 26, Paragraph 6 of the Youth Protection Act remains valid law, it considered that it might violate the principle of proportionality for the same reasons as the Sexual Violence Punishment Act.

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