Court/Judicial body: Constitutional Court of Korea
Date: 26 June 2003 CRC
Provisions: Article 34: Sexual exploitation
Domestic provisions: Article 5 of the Juvenile Sex Protection Act: Offence of acquiring sex from a minor (under the age of 19) Article 20(2) of the Juvenile Sex Protection Act: Mandatory disclosure of the identity of sex offenders convicted of acquiring sexual favours from minors in exchange for monetary compensation Article 13 of the Constitution: Principle of double jeopardy – an offender shall not be punished for the same offence twice
Case summary
Background: This was an appeal from a decision of the Seoul Administrative Court where the petitioner was convicted of acquiring sexual favours from a minor in exchange for payment and sentenced to a fine. The petitioner appealed to the Constitutional Court to revoke the legal requirement of disclosing his identity, arguing that such disclosure is, amongst other things, disproportionate, excessive, and violates the principle of double jeopardy.
Issue and resolution: Child sexual exploitation. The Constitutional Court held that the mandatory disclosure of the identity of an offender convicted of acquiring sex from a minor is constitutional.
Court reasoning: The legislative purpose of disclosing the identity of convicted offenders is not to punish the offender, but instead to increase awareness and protect the sexual integrity of minors in the public interest, and to “guide the public not to commit such crimes as acquiring sexual favours from minors in exchange for monetary payment”. The shame and dishonour that may follow serves as a deterrent, and is merely incidental to the legislative purpose and not itself a primary punishment. Therefore, disclosure does not violate the double jeopardy principle. Disclosure does not manifestly infringe upon the right to personality or privacy of convicted offenders as the information disclosed would already be in the public domain by reason of the trial being a public process. Furthermore, the public interest of protecting the sexual integrity of minors outweighs the individual privacy rights of a convicted offender. Therefore, such disclosure is not disproportionate or excessive. The Court also observed that child sexual abuse is an international concern, and that Article 34 of the CRC imposes an obligation on Member States to protect the child from sexual exploitation and abuse. The Republic of Korea’s measures regarding public disclosure of offenders is consistent with measures adopted in the United States, Taiwan and other countries.
Excerpt citing CRC and other relevant human rights Today the problem of sexual abuse of children including the purchase of sex is at the center of the concern all over the world and various adopt new legislative measures similar to the identity disclosure system. The United Nations Convention on the Right of the Child of 1989 provides for an obligation of the member states to protect the child from all forms of sexual exploitation and sexual abuse ( Article 34). Also, the participating in the ‘First World Congress Against Commercial Sexual Exploitation of Children’ held in Stockholm, Sweden in 1996 declared that they would develop within five years measures to decrease the number of the children falling victims to commercial sexual exploitation.
CRIN comments: CRIN believes this decision is consistent with the CRC. Article 34 requires States to protect children from all forms of sexual exploitation and sexual abuse, and to take all appropriate measures to prevent the inducement or coercion of a child to engage in any unlawful sexual activity.
Citation: 15-1 KCCR 624, 2002 Hun-Ka14, 26 June 2003
Link to full judgement: http://search.ccourt.go.kr/ths/pr/ths_pr0103_Print.do?cId=010400&seq=1&cname=%EC%98%81%EB%AC%B8%ED%8C%90%EB%A1%80&eventNo=2002%ED%97%8C%EA%B0%8014&pubFlag=0&eventNum=9056&selectFont=normal&showHide