The purpose of this Study is to carry out a positivist survey of the changes in sexual violence investigation practices brought on by the amendment of various sexual violence laws on June 19, 2013, which involved the abolishment of crimes not indictable without complaint, and the introduction of the court-appointed victim counsel program. The Study focuses in particular on the introduction of various protection/support programs designed to protect victims’ rights and the changes in the field brought on by such programs, and looked into how these new victim protection/support programs are applied to actual investigation process. In addition, on the basis of the findings from the positivist survey, the Study sought to contemplate on the directions of improvements required to ensure the effectiveness of the amendment. With regard to the directions, the Study derived the criteria to uate the sexual violence investigation policies and practices in South Korea and directions thereof from the international principle applied to judicial response to sexual crimes based on the gender perspective, which demands victim protection sensitive towards the unique characteristics of sexual violence and desires of female victims, and support for realizing substantive justice.
In the positivist survey, in-depth interviews were conducted with 50 experts in the field including policymakers at investigation agencies, - court-appointedvictim counsels, public officials assigned to court-appointed victim counsels, statement assistants, victims, counselors at victim support institutes. In addition, 284 police officers in charge of sexual violence crimes and 173 staffs from sexual assault victim centers, and 23 court appointed victim counsels for victims were surveyed using questionnaires.
Firstly, the changes of criminal policies on sexual violence in 2012 can be characterized by the strengthening of punishment and post-management for offenders and the expansion of protection and support for victims. The 2012 amendment is particularly significant in that it laid the foundation for granting equal access to judicial services to sexual violence victims. 1) The amendment grants equal access to judicial services to victims, especially female victims. The introduction of the court-appointed victim counsel, the statement assistants, and statements written under alias laid the foundation to enhance the safety and capabilities of sexual violence victims during criminal proceedings. 2) The establishment of the new investigation system dedicated to sexual violence, and the improvement of the comprehensive support centers for sexual violence victims represent the efforts to address the unique characteristics of sexual violence and victims’ desires. 3) The amendment removed those provisions providing for crimes not indictable without complaint, so as to ensure that sexual violence criminals answer for their crimes under the criminal justice system.
The following are the findings of this Study with regard to how the impact of the policy changes above is experienced and perceived by actors involved in investigation of sexual violence in the field, including investigators at investigation agencies, victim support centers, victims, court-appointed victim counsels, statement assistants, policymakers, etc.
Firstly, the strengthening of punishment and post-management for sexual violence criminals changed investigation practices in the following ways: police officers became more active when investigating sexual violence, a change brought on by the abolishment of crimes not indictable without a warrant and the establishment of the investigation system dedicated to sexual violence. These changed may have contributed to the increase of reported cases of sexual misconducts or unwanted photographing and more active investigation thereof, which in turn may have manifested as the apparent increase of sexual violence crimes. As for the reinforced post-management including - registration of personal information - after the enactment of the 2013 amendment, however, both the police and the prosecution expressed negative opinions. As a result of such attitude, after the abolishment of crimes not indictable with a complaint, prosecutors have been suspending indictment in an exponentially increasing number of cases. Increased in particular are indictments suspended on the condition that the offender takes the related classes, which have in a way a ‘punitive’ effect. It was found through this Study that a crucial element in deciding to suspend an indictment is whether the offender settled with the victim, which goes on to show that settlement with the victim still has relevance even after the abolishment of crimes not indictable without complaint. In addition, as a reactive response to the strengthened punishment for sexual violence, exaggerated discourses on cracking down on false accusation of sexual violence are being distributed in the society, which exacerbated the fear felt by victims of sexual violence.
Secondly, as for the changes in investigation practices brought on by the strengthened protection and support for victims during investigation proceedings, those policies and programs exerted a positive impact of caused investigation agencies to be more careful about secondary victimization. On the other hand, the respondents reported a number of negative impacts: some mentioned delay of the investigation process caused by the burden of utilizing an increasing number of protection programs, and others pointed out that victims are often required to make repeated statements. In addition, victims were often inconvenienced as the investigation schedule changed to fit the schedule of the professionals involved in the case such as the court-appointed victim counsel or statement assistant, which led some of the victims to averting the support programs prepared for them. These issues and others raised during actual proceedings seem to have undermined the efficacy of the support programs. It was also pointed out that, even though it is imperative to secure a management function to organically connect and manage various victim support programs, there is no agency or institution to assume that role. Another issue raised against the use of victim protection/support programs was the possibility of imbalance across different regions, which may get in the way of facile processing of sexual violence cases by increasing the burden of repeated statements, or increase the risk of secondary victimization for victims in certain regions. Imbalance was also found in terms of departments dedicated to investigating sexual violence crimes. Regional police agencies have set up departments dedicated to investigating sexual violence crimes such as special sexual violence investigation units. At the police station level, however, it was found that the investigators’ understanding and expertise regarding sexual violence have deteriorated, after the previous sexual violence investigation teams were reorganized into women & juvenile investigation teams in 2014.
Thirdly, with regard to the introduction of the court-appointed victim counsel program and their activities, the program was positively received by the respondents as the most helpful program in terms of supporting and protecting victims. The respondents also reported that the program is useful in preventing secondary victimization, psychologically stabilizing victims, facilitating communication with investigators, and supporting investigation activities. The court-appointed victim counsels were also found to offer appropriate protection for victims by intervening in the settlement process as the victim’s representative, in cases where the settlement, a critical element in deciding whether to suspend indictment and sentencing, may cause secondary victimization of the victim. While sone respondents complained about the defenders’ understanding of the unique characteristics of sexual violence, their attitude or activeness, the findings of this Study show that more active provision of legal assistance for victims actually strengthen the protection and support for criminal victims by revitalizing mutual cooperation between agencies and institutions dedicated to sexual violence.
In order to ensure that the equal access to judicial services granted to victims of sexual violence by the 2013 amendment produce meaningful outcomes, the following reforms are required. Firstly, in order to close the gaps across regions, agencies, and individual investigators by establishing the investigation system and securing the expertise of investigators therein, we need to establish a system to provide continued training on a regular basis, prepare standardized guidelines, and supervise and prevent burnout of personnel in charge of sexual violence investigation. Secondly, in order to achieve effective yet human rights-based punishment for sexual violence, the excessive strengthening of post-management measures need to be reconsidered through legislative means, standardized criteria for suspension of indictment should be established based on uation of the current practice, and guidelines should be adopted on the use of court-appointed victim counsels and consideration of victims’ safety during settlement processes. Thirdly, in order to enhance the efficiency of the court-appointed victim counsel program and the statement assistant program, the defenders and the assistants should be given meaningful authorities, their understanding on various programs under each criminal justice agencies should be improved, an uation system and management criteria need to be established for them, and they should be required to go through enhanced training to improve their expertise on sexual violence. Fourth, in order to revitalize protection and support for victims of sexual violence, mutual cooperation between personnel involved with sexual violence investigation, and surveys and uations need to be conducted on a regular basis to ensure continued implementation of the policies.