The meaning and limitations of the Supreme Court’s decisions
By Park Ju-yeon
Published Jul. 14, 2022
Translated by Marilyn Hook
In 2017, a sexual-minority[1]
servicewoman in the Marines accused two of her superiors, A (real surname: Kim)
and B (real surname: Park) of sexual assault. In their first trial, the assailants
were convicted and sentenced to eight and ten years, respectively, but upon appeal,
that verdict was reversed and the two were declared not guilty. Regarding its
declaration that the defendants’ use of violence or threats could not be
proven, the judges’ panel behind the not-guilty verdict was criticized for overlooking
the relationship between rank and power in the military, the fact that servicewomen
are in a kind of trap, and the vulnerable position of sexual minorities. (Relevant
Korean-language article: “Don’t Military
Courts Know the Reality of Female Soldiers’ Lives?”)
This past March, the Supreme Court quashed the
decision of the appellate court in the case of Defendant A for “reject[ing] the
credibility of the victim’s testimony” and remanded the case back to that
court. The Supreme Court recognized that in the not-guilty verdict of the second
trial, “there is the error of exceeding the limits of the principle of the free
evaluation of evidence by violating the rules of logic and experience, and
there is the error of not carrying out the trial properly due to
misunderstanding the laws regarding assault and intent in the crime of rape
inflicting bodily injury against a soldier.”
On the other hand, the court upheld the
appellate court’s verdict regarding Defendant B. The Supreme Court gave a kind
of split verdict in which one defendant was essentially declared guilty and the
other not guilty. How did this result come about?
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| “Case of Sexual Assault of Sexual Minority Female Marine by Superiors: Press Conference on the Supreme Court’s Decision” held on March 31 in front of the rear entrance to the Supreme Court. (Source: Joint Committee on Case of Sexual Assault of Sexual Minority Female Marine by Superiors) |
On July 5, the Joint Committee on Case of Sexual Assault of Sexual Minority Female Marine by Superiors held a forum over Zoom to discuss this issue in depth. Titled “Case of Sexual Assault of Sexual Minority Female Marine by Superiors: Legal Action Not Over Yet”, the forum saw the sharing of a variety of opinions on the meaning and limits of the Supreme Court’s decisions, as well as explanations of the heart of the issue of sexual violence in the military and recommendations for how it should be dealt with.
If you are sexual assaulted in the military…
In order to talk about sexual violence cases in the military, you also have to talk about the particular characteristics of the military. Kim Eun-gyeong, co-leader of the Young Servicewomen Forum, began by pointing out that sexual crimes within the military are underreported, citing the results of the National Human Rights Commission of Korea’s “Survey on Human Rights Conditions in the Military” from 2019 and of the Ministry of National Defense’s “Survey on Military Sexual Violence.”
In the latter survey, 73.1% of servicewomen agreed
with the statement, “The lower a victim is in the military hierarchy, the more
difficult it is for them to report being victimized by sexual violence.” When
those who have experienced sexual violence were asked about their inclination
to report it, 47.1% said they had not even considered doing so and had no plans
to consider it in the future, 33.2% said they had considered it but gave up on
the idea, and 19.6% said they were still thinking about it.
Why can’t they make a report? Ms. Kim said one
reason is that “the perpetrators may be, as in this case, the superiors or
seniors [longer-serving personnel] that you have to live in the same unit with
throughout your time in the military.” She added, “Due to the nature of the
military, there is rampant advocacy for perpetrators of sexual assault and
intimidation and pressuring of victims, and there is also an atmosphere of
resentment towards victims because of the belief that reporting sexual crimes
somehow causes problems in the unit.” Another major reason is that “there’s no
faith that the military system will protect (victimized) servicewomen.”
Attorney Jeon Da-un of Jihyang Law mentioned,
“According to the ‘Survey on Military Sexual Violence’ from 2019, in response
to a question about the attitudes of their fellow military members and unit
members at the time of a sexual harassment incident, 25.2% of victims answered
that they had suffered ‘minimization, concealment’ of the incident, 16.5%
‘ostracization’, and 14.5% ‘covering up of the report (conciliation)’” She revealed
that, in the current case as well, “After [the victim] brought charges against
the perpetrators in 2017, she had to endure unimaginable amounts of secondary
victimization from within and outside of her organization.”
The reason that secondary victimization
continues is that perpetrators are not receiving proper punishment. Ms. Kim
said that although “the judicial system in the military for punishing
perpetrators is not only the Military Criminal Act, there are also disciplinary
directives,” the statute of limitations for issuing punishment is just three
years, and what is more, military commanders do not properly perform their
roles in this process. She said, “The first-ever audit of the army headquarters
by the Board of Audit and Inspection in 2021 revealed that in the previous five
years, the army had taken no steps to discipline 40 servicepeople and civilian
workers in the military who were investigated by an investigative agency on
suspicion of sexual crimes. Among 70 people who were excepted from disciplinary
action, 40 [had been charged with] sexual offenses, 16 [with] violations of the
duty of integrity [accepting or giving gifts or favors in connection with one’s
duties], and 14 [with] drunk driving.”
Ms. Kim commented, “Many commanders have neglected
their responsibility and duty to make a fair judgment about the victim’s
statement and determine right from wrong, and, by taking a laissez-faire attitude of ‘I
don’t want blood on my hands', have in effect protected perpetrators.”
In this situation, the victim continues to
suffer secondary victimization in “the military’s tightly-knit networks, and
after discharge at reunions of people who enlisted in the same period or served
in the same unit, at family reunions, and so on.” Ms. Kim continued, “In order
to restore their honor within the military community they’re part of,
perpetrators ceaselessly attack the victim’s reputation.” She emphasized that
it would be difficult to protect victims of military sexual assault without
properly understanding this reality.
One is declared guilty, the other innocent?
In addition to the closed nature of the military
organization and servicewomen being at a disadvantage numerically, the
distorted ideas about sexual assault and poor gender sensitivity that still
plague Korean society have also been serious obstacles in this case.
The Supreme Court said about Defendant A that it
“recognizes his guilt because considering the relationship between the victim
and the assailant at the time, [his actions] could be seen as an exercise of
tangible force that made it significantly difficult for the victim to resist.”
However, it made a different decision about Defendant B, despite noting that
“his position and relationship as the victim’s superior and the manner of the
tangible force he used to subdue the victim at the time of the rape and molestation
were similar” to Defendant A’s. It said, “Even if the credibility of the
victim’s testimony is acknowledged, it is insufficient for the [establishment]
of [the necessary use of] force or intimidation to constitute rape and forcible
molestation, or of the defendant’s intention, even if [the alleged actions] constitute
abuse of occupational authority.”
Attorney Jeon Da-un argued that gender
sensitivity is not being given proper consideration here: “In the decision
regarding force and intimidation to constitute rape and forcible molestation by
B, [the judges] overlooked that the defendant could not aggressively resist in
that situation, and further that she was in a position in which she could do
nothing but submit absolutely to the actions of Defendant B, her direct
superior,” which produced “a result that runs counter to a gender-sensitive
standard of judgment.”
Ms. Jeon explained, “‘Gender sensitivity’ is not
a newly emerged special principle of trial or emotional factor, but something
that is based on the universal philosophy of gender equality that rejects the
patriarchal and male-centered standards of judgment that plagued past trials
and instead says that trials must be conducted without discrimination or bias.”
She added that she is concerned that the Supreme
Court’s mixed ruling will set “a precedent that shows that judges’
understanding of and decisions regarding the harm of sexual crimes can vary depending
on their gender sensitivity.”
Unpublicized hate crimes against sexual
minorities
Two aspects of this case that should not be
ignored are that the victim was a sexual minority and that the assailants made
use of that fact. The victim was afraid to come out within her organization,
and she decided that it would be better to tell her direct superiors directly
about her sexual identity than for them to find out through rumors. But the
perpetrators told her, “That’s because you haven’t had relations with a man.
We’ll show you what it’s like to do it with a man,” using her weakness against
her. Defendant B (Mr. Park) even “continuously claim[ed] that he and victim
were lovers and had consensual sexual intercourse.”
Attorney Park Han-Hui of Korean Lawyers for
Public Interest and Human Rights said, “Even though it was this kind of
situation, the appellate court made no mention of these controversies and acquitted
the defendants for the reason that the victim’s testimony in regards to being
forced or intimidated was not credible, and the Supreme Court of course
accepted this judgment as it was.”
In addition, Ms. Park emphasized that Defendant
B’s remarks about the victim only thinking she’s a sexual minority because she
hasn’t had sex with a man and his showing her what it’s like were “made with
the intention of viewing the victim's sexual orientation as abnormal and
'correcting' it, and were clearly based in hatred for sexual minorities.” Thus the
assault was “an incident of sexual violence and simultaneously a hate crime
against a sexual minority,” but the court’s decision failed to mention this
fact.
This is despite the fact that such so-called
‘corrective rape’ “is a violation of the victim’s right to sexual
self-determination and a denial of the victim’s sexual orientation, a core part
of their personality, and thus causes serious harm to their personal rights and
dignity” and so “the motive and degree of damage must be viewed as more serious
than those of other crimes of sexual violence.”
Ms. Park concluded that “the rulings are deeply
flawed in that neither the High Military Court nor the Supreme Court made any
judgment on the issue of the incident being ‘corrective rape.’”
Victims of military sexual assault need to be
able to recover normalcy
Ms. Kim of the Young Servicewomen Forum said
that when you consider the scale of the organization that is the military, “no
policy or system can exercise its strength 100%. In other words, we must now
face the truth that we cannot protect victims 100%.” She also emphasize the
need for “going beyond protecting victims and strengthening the capacity of
commanders to work toward the recovery of normalcy for victims” and “‘organizational
learning’ training to improve the military’s organizational culture.”
Ms. Park, the attorney, proposed, “In cases where the victim is a sexual minority, the court must have gender sensitivity and an understanding of the specific reality faced by sexual minorities when considering sexual violence cases.” She also pointed out the need for discussion on the enactment of the ‘Law on the Punishment and Prevention of Hate Crimes’.
Kim Suk-gyeong, head of the Center for Military
Human Rights Korea’s Military Sexual Abuse Counseling Center, expressed concern
about the rise in servicewomen victims and the increase in complaints of
secondary victimization, though she added, “I take comfort from the fact that
servicewomen’s voices are becoming louder thanks to growing awareness of human
rights and gender sensitivity.” She also revealed that she feels a mix of hope
and concern about the points that “with the recent revision of the Military
Court Act, sexual violence cases are [now] transferred to the private sector from
the investigation stage” and that with the abolition of the High Court for
Armed Forces, military appellate trials will now be tried at the Seoul High
Court.
Citizens should give attention and support to
upcoming actions by the Joint Committee on Case of Sexual Assault of Sexual
Minority Female Marine by Superiors that include a post-remand trial and civil
litigation.
*Original article: https://ildaro.com/9392
[1] Translator’s note: “sexual minority” (seongsosuja) is the
term usually used in Korean for members of the LGBTQ+ community.
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