1. Purpose

  This study aims to examine the feasibility of the Ministry of Justice's proposed residence restriction policy for high-risk sexual offenders based on the existing evidence from prior research in the United States and Germany and to provide policy implications. The research focuses on four key areas: 1) the effectiveness of residence restriction policies, 2) the challenges of residence restriction policies, 3) the constitutional validity of residence restriction policies, and 4) a preliminary uation of residence restriction policies using the Delphi method.

2. Effectiveness of Residence Restriction Policy

  The U.S. residence restriction policy for high-risk sexual offenders is a sex crime policy that prohibits high-risk sex offenders from residing within or near areas densely populated with children. The policy is designed to enhance public safety by reducing access to potential victims. However, studies on residence restriction revealed that the policy has limited crime prevention effects. The key findings can be summarized as follows:

  ① The likelihood of sexual offenders intentionally residing near child-dense areas such as schools and daycare centers is low, and there is no relationship between the number of sexual offenders in a given location and the rates of sexual offenses.

   ② Existing research shows that sex offenders rarely find potential victims in child-dense locations, and even when they select victims in such locations, they travel to other locations to complete the sexual offense.

  ③ Studies examining the impact of residence restriction policies on sexual offenses do not show statistically significant changes in adult or child sexual offense rates at city and state levels. In some regions, sexual offenses even increased after the policy was enacted. 

  ④ Research investigating the effects of residence restriction policies on sex offense recidivism reveals that residence restrictions have no significant impact on sexual offense recidivism against both adults and children.

3. Issues with Residence Restriction Policy

  The evidence from the U.S. research, where residence restriction policies are already in place, represents unintended collateral consequences of residence restrictions, which are as follows:

  ① Residence restriction policies exacerbate housing instability and homelessness among sexual offenders. Approximately 2-3% of registered sexual offenders in the U.S. are reported to be homeless or have uncertain housing, and this figure can be even higher in specific regions.

  ② Residence restriction policies can lead to sex offender clustering. Sex offenders subject to residence restrictions are often left with very few areas where they can legally reside. This leads them to live closer to other sex offenders, resulting in increased clustering of sex offenders, especially in rural areas with limited restriction zones or economically depressed urban areas with affordable housing.

  ③ Residence restriction policies are found to isolate sexual offenders from supportive family members and increase their emotional stress. Sex offenders are forced to live far away from work, creating financial hardship. Financial hardship can disrupt family life.

  ④ Residence restriction policies pose significant challenges for offenders in finding employment. The stigma associated with being a sexual offender already makes it difficult for them to secure suitable housing and jobs, and residence restriction policies exacerbate this problem.

  ⑤ Residence restriction policies make it difficult for offenders to access social welfare facilities. Active engagement with social welfare institutions is crucial for rehabilitating offenders, but the policies hinder access to public transportation and facilities concentrated in densely populated areas.

4. Constitutional Validity of Residence Restriction Policy

  In assessing the constitutionality of the residence restriction policy, a crucial factor involves weighing the public interest (the degree of social protection achieved through the policy) and the private interest (the extent of the infringement on the fundamental rights of the affected individuals). Looking at cases from the United States, which have implemented the policy, there is a divergence of opinions among the courts.

  The key divergence point is how to perceive the preventive effect and the degree to which the fundamental rights of individuals affected by the residence restriction policy are inherently infringed. Even in Germany, which does not directly enforce a residence restriction policy, a similar judgment of unconstitutionality was made in relation to compliance requirements for probation that are similar to residence restrictions. If, due to the imposition of compliance requirements, it becomes extremely difficult for the individuals to carry out their daily lives normally, it is considered a violation of the principle of excessive prohibition. Considering this comparative legal analysis and the empirical evidence from the United States, it is likely that implementing the residence restriction policy proposed by the Ministry of Justice would be deemed unconstitutional. This is because, firstly, the empirical findings from the United States reveal that the preventive effect of residence restriction policy is limited. Secondly, in the case of the original proposal presented by the Ministry of Justice, Republic of Korea has a much higher population density and dense residential areas in certain urban areas compared to the United States, so implementing a residence restriction policy would essentially limit living space or severely restrict freedom of residence and movement. Thirdly, in the case of the revised bill, there is a high possibility of a fundamental infringement on the freedom of residence and movement, as it forces residence in specific facilities.

5. Preliminary uation of Residence Restriction Policy

  The findings from a Delphi as a preliminary uation of the residence restriction policy for high-risk sexual offenders are as follows:

  The uation criteria included the policy's constitutionality, effectiveness, efficiency, and implementation methods. The average perception of Delphi panel members on the residence restriction policy for high-risk sexual offenders, considering each uation factor, was mainly negative, except for the fear reduction effect (4.657) and the necessity of the policy (4.139).

  Regarding the fear reduction effect, although the content validity (CVR) and convergence were below the threshold, the agreement level was above the threshold (0.8). Therefore, it can be concluded that the residence restriction policy may be somewhat effective in reducing fear of crime. When the sample was split into academic and practitioner groups, and the subsample analyses were conducted, the academic group generally held a negative view except for the fear reduction effect (4.708) and the potential infringement of fundamental rights (4.083). The results also suggest that the academic group perceived lower effectiveness, efficiency, and relative efficiency. In contrast, the practitioner group uated positively on aspects such as the proportionality principle (4.167), the principle of last resort (4.167), specific deterrent effects (4.250), the fear reduction effects (4.500), and the necessity of the policy (4.417). Efficiency and relative efficiency were considered low by both groups.

6. Policy Recommendations and Conclusion

  Based on the findings reviewed, it can be concluded that when the residential restriction policy is implemented to prevent sexual crimes, the policy may have a reassuring effect on citizens. However, the desire for safety is insatiable, so this sense of reassurance may not last in the long run. Moreover, considering its crime prevention effects, existing evidence reveals that residential restriction policies have limited effectiveness. Regarding policy efficiency, there may be issues with the overlap of electronic monitoring and the targeted individuals and the potential for a negative net cost due to the increased workload for probation officers and police. Furthermore, this policy can lead to issues such as an increase in homelessness or clustering problems, and the overall instability in housing situations may hinder the reintegration of the targeted individuals into society. Given these factors, implementing the residential restriction policy, which the Ministry of Justice originally announced in its 2023 annual report, is less likely to be feasible. Recently (as of October 25, 2023), the Ministry of Justice made a pre-announcement of legislation to introduce a Korean version of Jessica’s Law, which designates residential facilities within the community rather than residence restrictions in child-dense areas. When the parliament discusses the legislation of the Jessica’s Law, it is advisable to consider the following points:

  ① Narrowing the scope and criteria for subjects and restriction areas

  When considering a comprehensive review of prior research in the United States and Germany and the results of the Delphi study, it is recommended to limit the individuals subject to residence restrictions to ‘offenders with a history of repeated sexual offenses against stranger children (for instance, offenders who have committed two or more sexual offenses against minors), who are deemed to pose a high-risk to public safety as their risk of reoffending is high and the risk of recidivism cannot be entirely eliminated through the execution of the sentence alone concerning the nature of their crimes, the extent of harm, sexual deviance, the number of victims, etc., thereby necessitating residence restrictions for the community safety.’

  The scope of residence restrictions in the original version, which was announced by the Ministry of Justice in January 2023, was within a 500-meter radius of schools and childcare facilities. When utilizing existing facilities within the local community or designating new facilities as places in which high-risk sex offenders are forced to reside, it is advisable to select the narrowest range with the least restraint on fundamental rights. What is clear is that if the 500-meter restriction in child-dense areas, as in the original proposal, is adhered to when utilizing existing facilities or designating new facilities as high-risk sex offenders’ place of residence, it is assumed that in major cities, there will be virtually no facilities that comply with this restriction in practice. Therefore, an additional analysis should be conducted to assess this matter.

  ② Timing and criteria for assessments

  uations should be conducted both at the time of sentencing and upon the completion of the sentence for the accuracy of risk assessments. Currently, most security measures assess the risk of reoffending at the time of sentencing to determine whether security measures should be imposed. Therefore, if residence restriction policies are implemented, it is likely that legislative changes will require the assessment of this risk at the time of sentencing. However, in this case, a potential issue may arise as changes in the offender's risk of reoffending during the execution of the sentence are not considered. Considering this, it is deemed appropriate to select a legislative model that assesses the risk of reoffending both at the time of sentencing and upon completion of the sentence, allowing for the temporary lifting of restrictions based on changes in the individual’s level of risk. In particular, a system can be considered where the selection of individuals is based on a review by an uation committee when the risk of reoffending remains even after release or the completion of treatment or parole. 

  Secondly, even if residence restriction orders are imposed based on two uations conducted at the time of sentencing and upon completion of the sentence, legislation should allow for temporary lifting of residence restrictions based on changes in the individual’s risk of reoffending to strengthen constitutional legitimacy and encourage the reintegration of the individuals into society. In other words, instead of imposing an indefinite sentence as in the U.S. or enforcing residence restrictions for a specified period, like electronic monitoring or the sex offender registry, the legislation should be designed to allow the termination of residence restrictions based on the degree of change in the individual’s risk. This should consider the potential for change in the individual, fostering the will for social reintegration and enabling a return to the local community when recovery to a suitable level is achieved, ensuring the protection of constitutional rights.

  ③ Strengthening risk assessment

  Rather than the current reoffending risk assessment that includes only static risk factors conducted on electronic monitoring subjects, a reoffending risk assessment should incorporate dynamic risk factors to improve accuracy. It should uate factors such as sexual deviance, the level of sexual addiction, and the degree of sexual preference for children, in addition to static risk factors. One reason is that offenders who commit sexual crimes against stranger children in child-dense areas may have pedophilia, deviant desires, or the potential for sexual addiction. Another reason for including dynamic risk factors in reoffending risk assessment is that these factors can change over time and reflect the level of change through treatment programs. For residence restrictions to operate in a way that allows for release within a specific time frame, rather than an indefinite model like in the United States, periodic assessments are required, considering that sexual offenders may be sufficiently prepared for societal reintegration within a certain period. For the periodic assessments to be feasible, the relevant scale should capture offenders’ internal changes which can be measured with dynamic risk factors. Comprehensive sexual assessment tools like MSI(Multiphasic Sex Inventory, Nichols & Molinder, 1984), could be a viable method to measure internal risk factors.

  In conclusion, while the residence restriction policy may provide a sense of security to citizens, it has limited effectiveness in preventing sexual offenses. It may also lead to several challenges, including housing instability, clustering of offenders, increased social isolation, employment difficulties, and limited access to social welfare facilities. Given these concerns, the policy implementation should be carefully uated, and the above recommendations should be considered to address its potential issues.