[n번방, The Society That Created the Devil④] Legislation Reflecting Characteristics of Digital Sex Crimes and Consistent Law Enforcement Needed

Legal Community: "The Scope of Permissible Undercover and Sting Operations Should Be Expanded"
"Law Enforcement Is More Important Than Legal Information"

On the afternoon of the 27th, participants are holding a picket performance at the 'Minjung Party National Assembly Surrounding Party Speech Rally Urging Legislation for the Punishment of All Members of the n-Bang' held in front of the main gate of the National Assembly in Yeouido, Seoul.
[Image source=Yonhap News]

[Asia Economy Reporter Choi Seok-jin] As the reality of sex crimes using the online messenger Telegram, such as the ‘n-bunbang’ and ‘Baksa-bang’ cases, has been revealed, shocking the public, voices are growing calling for the enactment and revision of laws and the introduction of systems that consider the unique characteristics of digital sex crimes.

Experts unanimously agree that the current laws regulating sex crimes were basically created to govern offline sex crimes such as rape and sexual assault, and they fail to reflect the unique characteristics of digital sex crimes committed online.

They point out the need to promptly reorganize laws regulating digital sex crimes, which pose much greater risks in terms of transmission speed and scope, and to impose relatively heavier sentences.

Meanwhile, equally important as enacting laws is strict law enforcement, and there is also an opinion that expanding the scope of undercover investigation techniques, which are currently very limitedly permitted in South Korea, to increase arrest rates would greatly help in crime prevention.

◆Current laws fail to reflect the unique characteristics of digital sex crimes = The representative special law that imposes aggravated punishment for sex crimes under criminal law is the ‘Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes’ (Sexual Violence Punishment Act).

However, most provisions are about imposing aggravated punishment for existing offline sex crimes, and only Article 13 (Obscene Acts Using Communication Media), which punishes acts of transmitting videos that cause sexual shame via telephone, mail, computer, or communication media, and Article 14 (Filming Using Cameras, etc.), which punishes acts of filming or distributing images of a person’s body that may cause sexual shame using cameras, etc., are somewhat related to digital sex crimes.

Also, a punishment clause for ‘deepfake’ videos that synthesize a person’s face was newly established and will be enforced from June 25.

Until now, there was only a provision punishing the sale or distribution of illegal filming materials, but no regulation punishing those who downloaded them to computers or smartphones. This content was included in the amendment to the Sexual Violence Punishment Act, one of the so-called ‘n-bunbang Prevention 3 Laws’ led by Democratic Party lawmaker Baek Hye-ryun.

The representative law related to digital matters, the ‘Act on Promotion of Information and Communications Network Utilization and Information Protection, etc.,’ also imposes aggravated punishment for defamation through information and communication networks under Article 70, but there are no provisions related to sex crimes.

There are only provisions mandating the labeling of harmful media for youth (Article 42) and prohibiting advertisements of harmful media for youth (Article 42-2) for youth protection.

The Act on the Protection of Children and Juveniles against Sexual Abuse also imposes aggravated punishment for offline sex crimes against children and juveniles, but the only provision related to digital sex crimes is Article 11 (Production and Distribution of Obscene Materials Using Children and Juveniles), which punishes the production or distribution of obscene materials using children and juveniles.

However, it only punishes those who distribute, provide, publicly display, or screen obscene materials using children and juveniles, but does not impose aggravated punishment if the crime occurs in cyberspace.

◆Legislative efforts needed to control sex crimes occurring in cyberspace = On the 28th, Professor Lee Soo-jung of the Department of Criminal Psychology at Kyonggi University pointed out, “There are almost no laws applicable to sex crimes occurring in cyberspace,” and emphasized, “Legislative efforts to control cyberspace are necessary.”

Lee Su-jeong, Professor, Department of Criminal Psychology, Kyonggi University

Professor Lee said, “Currently, even in digital sex crimes, the investigation methods applied to rape under the criminal law are being used as they are,” adding, “For example, you cannot check personal information just because you suspect something, but digital space has unique characteristics. It moves very fast.”

She continued, “Unlike other crimes, if you obtain a search warrant and meet sufficient requirements, everything disappears and evaporates, so provisions tailored to the unique characteristics of digital crimes are needed. But where would you put them? In the criminal law or somewhere else?” She emphasized, “Therefore, foreign countries are also making efforts to legislate special laws specifically related to digital and especially online sex crimes.”

Professor Lee also stressed that in addition to enacting laws for investigation and punishment, laws or systems to support victims of digital sex crimes, where many victims occur, must be prepared.

She said, “To prevent secondary financial damage to (digital sex crime victims), it is necessary to consider measures such as the state supporting the cost of deleting illegal videos or revising related laws to provide new resident registration numbers so that victims whose personal information has been exposed can live new lives and adapt to society.”

◆Realizing the currently extremely low sentences for sex crimes compared to foreign countries = Baek Seong-moon, representative lawyer of the Ariyul Law Firm, said, “Compared to foreign countries, our legal system itself is relatively lenient in punishing the distribution or sale of obscene materials,” pointing out, “For example, the statutory penalty for producing child and juvenile obscene materials is ‘life imprisonment or imprisonment for five years or more,’ which is as severe as murder except for the death penalty, but the statutory penalty for selling or distributing child and juvenile obscene materials is ‘imprisonment for up to 10 years,’ which is at the same level as fraud.”

Lawyer Baek Seong-mun

He explained that the reason why Mr. Son, who was caught operating a child pornography dark web site last year, was sentenced to probation in the first trial and only received a prison sentence of one year and six months in the second trial is because the statutory penalty itself is low.

Lawyer Baek said, “If someone knowingly possesses child and juvenile obscene materials, the statutory penalty is only imprisonment for up to one year,” adding, “In the United States, possession of child pornography can result in a 15-year prison sentence.”

He continued, “There is no provision imposing aggravated punishment for distributing or selling child and juvenile obscene materials in cyberspace,” and pointed out, “Overall, the law is not keeping up with reality regarding digital sex crimes.”

Professor Lee Soo-jung also argued that the punishment for child pornography under current law should be increased.

She said, “In foreign countries, general sex offences and child exploitation are treated as completely different crimes with different terminology,” and pointed out, “In South Korea, both are treated the same, and because it is called obscene material, many n-bunbang subscribers who want to consume obscene materials think, ‘Why should our personal information be exposed when we just watched obscene materials?’”

Professor Lee emphasized the need to realize the statutory penalty because Korean criminal law follows the method of imposing half of the heaviest sentence when punishing concurrent crimes (committing two or more crimes).

She said, “Foreign countries impose very heavy punishments for child pornography. If there are 10 victims, the sentence is multiplied by 10, but in South Korea, there is no addition, and the punishment is half of the heaviest sentence, so it is necessary to raise the basic sentence.”

◆Consistent law enforcement is important; consideration of allowing undercover investigations = Attorney Koo Tae-eon of the Lin Law Firm said, “What is regrettable is continuous and consistent law enforcement,” adding, “The problem of child exploitation materials is not new. Twenty years ago, there was a Lolita Cafe sharing child pornography.”

Attorney Gu Tae-eon

He said, “This time, the issue became huge, and the Blue House’s national petition demanding the disclosure of the main culprit’s personal information surpassed one million signatures, attracting nationwide attention, but it is important not to pay attention only at such times but to maintain continuous interest and strict law enforcement,” and criticized, “One could argue that while criminal justice agencies were not paying attention, the state’s failure to enforce laws consistently and continuously allowed the creation of 260,000 (n-bunbang) participants.”

Attorney Koo argued that one of the practical measures to prevent digital sex crimes is to allow undercover investigations.

He said, “More important than legislation for crime prevention is law enforcement,” adding, “Even if you strengthen statutory penalties, it is useless if you cannot catch the criminals. Legalizing undercover investigations would be good.” This means that enabling better arrest capabilities can be expected to have a crime prevention effect.

Attorney Koo emphasized, “Because drug trafficking, child pornography production, and prostitution are conducted secretly, the approach by investigative agencies must also be secretive,” and added, “For example, when police infiltrate as drug organization members, it is necessary to legalize undercover activities to confirm the criminal intent of the other party and enable arrests.”

He explained that in the United States, investigators pose as high school girls to enter chat rooms and lure men attempting to purchase sex from minors to arrest them, or conduct investigations such as deliberately causing car accidents, having the car repaired at a workshop, and checking estimates to detect insurance fraud.

Professor Lee Soo-jung also expressed the opinion that online sting operations should be allowed specifically for digital sex crimes.

She said, “It is necessary to adapt investigation procedures and guidelines to be suitable for online environments,” adding, “In foreign countries, online sting operations are already widely used investigative techniques.”

Professor Lee pointed out, “Our country’s inducement investigation method requires that it should not induce criminal intent, but to conduct inducement investigations without inducing criminal intent, you have to intervene knowing there is activity.”

The Supreme Court regards sting operations that induce a person who initially has no criminal intent to form new criminal intent as illegal.

For example, pretending to buy drugs or posing as a prostitute to induce drug sales or prostitution is considered illegal.

Professor Lee said, “So how does our country’s sting operation work? They catch one girl who has activity, and while investigating with the customer list she has, the girl also becomes illegal,” and stated, “Investigation techniques suitable for online space, evidence procedures, and various other measures are needed, so it is necessary to allow inducement investigations at least in online space on a limited basis.”

This is interpreted as allowing investigation methods where police approach by pretending to be a minor girl through chat apps and recognizing the evidentiary value of evidence obtained in such processes.

Experts commonly agree that the n-bunbang case has raised public awareness of the seriousness of digital sex crimes and that the flaws in laws and systems that have been neglected so far must be filled.

Attorney Koo emphasized, “What is important now is not to catch all 260,000 n-bunbang participants, but to establish a strong precedent and improve related systems to prevent such crimes from recurring.”