[Opinion] Fresh View on Protection of Youth Sex

Recently, the Commission on Youth Protection (CYP) published biographies of 169 sex offenders against youth. Debates are continuing as to whether such a measure is effective for the protection against the teen sexual exploitation, or whether it is a cruel punishment that disregards the criminal`s individuality.

Unlike an active measure of the CYP, the court seems to take a passive measure on the sex offenders. For instance, the court declared five men in their 20s not guilty, who gave 4,000 won or 14,000 won to a 15 year-old runaway girl after having sex with her, saying that `they did not give her money for compensation`. Regarding a case in which a man broke his promise of giving money to a 16 year-old girl after having a sexual relationship, the court also said that it was `not a fornication with a youth by a deceptive plan`.

Opposing to an insistence that if the youth sex is not protected broadly, the youth can easily become a prey of sexual exploitation, a counter argument asserts that if protection of the youth sex is broadened, basic rights such as private life or freedom of love can be threatened. What should we do?

Sex morals are changing as rapidly as the development speed of science and technology. Illicit love, which is often dealt in soap operas, tends to be regarded as an individual private matter. A flood of `love hotels`, chatting on Internet, and a boom of buying and selling of youth sex are the examples of changes of sex morals. Words like chastity or fidelity are even avoided by adults. Violation of sex morals, such as adultery and brokering of prostitution, are destined either to have disappeared from the list of crimes or to disappear under the motto of post-moralization of criminal law.

Unlike tolerance to crimes of violation of sex morals, punishment of sex crimes is gaining strength worldwide. Special law on sexual violence in South Korea reflects this trend. Moreover, despite the tendency of non-criminalization of violation of sex morals, sex crimes against the youth, such as child prostitution, child porno and homosexual activities with the youth, become the subject of surveillance and punishment. `Modern version of Scarlet`s Letter`, began with the Megan Law in New Jersey, the U.S., in 1996, which requires the sex offenders to register the change of residence and the public notification, tells us the seriousness of sexual exploitation and abuse against the youth and the urgent need for taking effective countermeasures. Special law on the protection of the youth sex in the nation is a part of such countermeasures.

According to a classical scheme of modern criminal law, the last resort of social policy is criminal policy, and the last resort of criminal policy is criminal law. This indicates that if social consciousness and values change, social policy, criminal policy and criminal law should change as well. From this perspective, strengthening of punishment according to the special law is clearly contradictory to the liberalization of sex morals.

Teen sex is a topic in the postmodern era, which discourse of modern criminal law cannot accept. It is as if a contradiction that cannot be solved by the general trend of liberalization of sex. This contradiction cannot be solved by the criminal law, which is the last resort. The contradiction belongs to either new dangers or knotty subjects in the postmodern society. This is as if a delta that is formed by clashing with waves of post-modernity in the estuary after coming down riding on waterway of modernity.

However, special laws, which are legislated to solve difficult problems of a delta that strayed from the waterway of the modern criminal law, have their own logics that are contradictory to the ideological system of the modern criminal law. From this perspective, law on the sex protection of the youth is a typical case of postmodern law. Therefore, regulation of law is not a universal discourse of freedom for offenders.

Rather, it should be interpreted and applied from the perspective of discourse that is for the youth sex. Then, publication of biographies of sex offenders against the youth can be understood from the changed paradigm. The issue is degree, range and method of publication of biographies of sex offenders. Although crimes of sex morals against the youth should be restricted more seriously then now, publication of biographies is not necessary. However, besides the heavy punishment, publication of biographies, which is a kind of punishment for security, is necessary for the criminals of sexual violence against the youth as long as there is a danger of repetition of an offense.

However, it is questionable if the current level of publication of biographies is effective for the prevention of repetition of an offense since it is focused to trigger the ethical sense of shame of the criminals rather than the safety of potential victims. Public notice should be backed up, which is at least concrete enough to warn the people around the criminal. This is because publication of biographies should fulfill the function of the danger notice mark.

Kim Il-Soo (Law Professor of Korea University, Visiting editorialist of Dong-a Ilbo)