Harsh punishment will backfire

As the Supreme Court has acknowledged marital rape as a punishable offense, forced sex between a married couple is now subject to criminal penalty. The social consequence and adverse side effects as a result of the decision will be greater than expected.

First of all, let’s look at the outcomes this decision would have. With the revision of the related laws, all sex crimes are no longer included in the category of offense that can only be prosecuted on request, and marital rape charges are subject to a harsher punishment of imprisonment of more than seven years, as opposed to the three-year minimum sentence for standard rape. A sentence of seven years or more in prison can only be reduced to three years and six months in prison, and probation is not allowed. Now, investigative authorities can actively track down marital rape and punish the offenders without complaints or reports by the spouse. Moreover, applying harsher punishment because of the marital relationship is not only unbalanced but also may lead to confusion of interpretation and is against legal fairness.

For example, if a neighbor hears screaming as a result of suspected violence and files a police report, the couple will be investigated by the police. In the course of investigation, if the wife testifies that there was forced sex in the past along with domestic violence, the direction of the investigation will shift from domestic violence to marital rape. Even if the couple later plea to retract the charge, the offender cannot avoid criminal prosecution. A neighbor’s report to prevent domestic violence can lead to a spousal rape investigation. Of course, domestic violence must be eradicated, but it is on a different level than spousal rape.

The special law on sex crimes was created to establish a healthy social order. Sex offenders receive harsher punishments than the general penal law. The law does not take the uniqueness of marriage and families into consideration, such as the right to sexual self-determination, stability of the family and respect for marriage.

When the state’s punitive authority intervenes to impose a harsher punishment instead of restoring the family, it could lead to the dissolution of the family and home, which is the basis for the future of the children. Can the marriage be continued if the family has to endure psychological, cultural and economic challenges and shocks when long-term imprisonment, personal information disclosure and electronic tagging devices are all part of the sentence? It is likely that the family would break apart.

A big change is expected in the concept of marriage in our society. People would be reluctant to get married, and divorce would increase. The ruling was a decision of the penal code, but it will affect family and civil cases as well. In order to receive more alimony and to take an advantageous position when dividing property, a divorce case can turn into a marital rape case.

The grounds for the Supreme Court to acknowledge marital rape is the “protection of a wife’s right to sexual self-determination by the law.” The right to sexual self-determination should be protected regardless of marital status. However, Korea’s criminal law prohibits a married person from having sexual intercourse with someone other than a spouse. When it is violated, offenders are charged with adultery. The Supreme Court argued that the right to sexual self-determination is limited by marriage, as a married couple is obligated to live together. The Supreme Court has contradictory positions on the spousal rape charge and the adultery charge. The Supreme Court’s decision was too rash, without taking various side effects into consideration.

Supplementary legislation is needed so that by reviewing the marriage relationship, marital rape is acknowledged when the marriage is broken, and during an active marriage, spousal rape is considered a kind of domestic violence. It is the way to restore peace and stabilities of the families and make healthy families.

Translation by the Korea JoongAng Daily staff.

*The author is a professor at Gangneung-Wonju National University and the president of the Korean Association of Comparative Criminal Law.

By Oh Gyeong-sik