[Case Notes] Stalking That Escapes Legal Nets, A Terrifying Story Only Victims Know

29,000 Damage Reports in One Year, Lenient Punishments Persist
Courts Deliver Conflicting Verdicts on Similar Offenses
Women’s Groups Call for Broader Stalking Punishment Scope

[Image source=Yonhap News]

[Asia Economy Reporter Han Seung-gon] Although the Stalking Punishment Act has been in effect for over a year, crimes that cleverly evade the law are increasing. This includes so-called indirect stalking, such as using threatening messages only the victim can understand as one's KakaoTalk profile phrase. Some even harass acquaintances on behalf of the victim. Controversy has arisen as rulings that undermine the legislative intent of the Stalking Punishment Act have also emerged. Experts suggest that the scope of punishment should be further expanded through amendments to the Stalking Punishment Act.

According to the police and Korea Women's Hotline on the 1st, the number of stalking reports received by the police in the year following the implementation of the Stalking Punishment Act in October last year totaled 29,000 cases. This is about 1.5 times more than the 19,000 cases reported to the police over the three years before the law was enacted. The increased social interest in stalking and the public demand for strict punishment after the law's implementation are interpreted as victims actively reporting to investigative agencies.

As a result, the methods of crime have evolved to cleverly evade the law. Perpetrators avoid situations where they could be punished by continuously harassing the victim directly. For example, offenders post frightening messages only the victim can understand on their social networking services (SNS) or harass the victim's acquaintances, engaging in indirect stalking. Another cunning stalking method is not contacting the victim directly but calling their workplace repeatedly to check if they have arrived.

Choi Yoo-yeon, head of the Women's Rights Counseling Center at Korea Women's Hotline, said in an interview with a media outlet that recent stalkers are committing crimes in a cunning way to avoid punishment as much as possible and emphasized that the scope of punishment should be expanded. A victim in her 40s pointed out that the persistence required for stalking crimes should be considered stalking from the very first offense. She appealed that if stalking behavior continues repeatedly, the victim could ultimately die from stalking harm.

Light Punishments Persist... Past 'Lover' Relationship Used as Mitigating Factor

Even when these cunning criminals are brought to trial, the punishments they receive are often very lenient. Among perpetrators prosecuted for violating the Stalking Punishment Act, only one out of six cases resulted in a prison sentence.

According to a comprehensive analysis of 95 verdicts obtained from the Supreme Court by Rep. Lee Tan-hee of the Democratic Party from October last year to June this year for cases prosecuted under the Stalking Punishment Act, only 16 cases (16.8%) resulted in imprisonment. Some courts cited the fact that the defendant had a past romantic relationship with the victim as a reason for mitigation or considered the short duration of stalking as a favorable circumstance for the defendant.

Moreover, there is controversy as courts reach different conclusions on whether persistent missed calls constitute stalking. Since the Stalking Punishment Act has been in effect for a short time and there are no precedents to serve as standards, court opinions appear divided.

Recently in Incheon, a ruling based on a precedent from 17 years ago, before the Stalking Punishment Act existed, interpreted a stalking case and acquitted the defendant. The court ruled that even if persistent calls were made, if the other party did not answer, it could not be punished under the stalking law. The prosecution immediately appealed, stating that the ruling contradicts the legislative intent of the Stalking Punishment Act.

Looking at one case, a man in his 40s who made 29 calls and sent over 30 text messages to his ex-partner over a month and a half starting in August was found guilty. The court interpreted that although the victim ignored or blocked most calls, the persistent contact would have caused fear.

However, a similar case received a different judgment. A man in his 50s who used caller ID blocking to make calls for over three months starting in March and made 10 consecutive calls within four hours was acquitted. This man continued to call even after a court order not to contact the victim.

Can 'Missed Calls' Be Punished as Stalking?

The difference between the guilty and not guilty verdicts appears to stem from differing interpretations of laws related to punishing missed calls. The Stalking Punishment Act defines stalking as "acts of delivering writings, words, sounds, etc., using telephone or information and communication networks." The court that found guilt judged that traces of missed calls could be considered as "writings" delivered, while the court that acquitted interpreted that the ringtone alone is difficult to regard as sound.

Regarding the controversial "sound," the Supreme Court in 2005 established a precedent that a telephone ringtone is "produced by the telephone itself" and does not fall under "sounds delivered to the other party through information and communication networks" prohibited by law.

The problem is that depending on how the Information and Communication Network Act is interpreted, two similar cases can result in guilty or not guilty verdicts. The Stalking Punishment Act, enacted in 2021, newly punishes stalking acts such as persistently calling or following someone to their home.

However, under the Supreme Court precedent for violations of the Information and Communication Network Act, punishment applies not to "persistent calls" but to the content delivered through the calls (such as abusive language). Therefore, even if persistent calls are made, if the other party does not answer, it cannot be punished under the stalking law.

The court that acquitted in the "missed call" case cited the 2005 Supreme Court precedent in its ruling, stating, "The ringtone ringing on the other party's phone cannot be regarded as sound transmitted to the other party using information and communication networks." At that time, before the stalking law existed, similar acts were punished under the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc.

[Image source=Yonhap News]

"Punishment for Repeated Calling... Also Aligns with Legislative Intent of Stalking Law" Prosecution Appeals

In response, the prosecution, which appealed the court ruling, unusually issued explanatory materials emphasizing active punishment.

On the 8th, the Incheon District Prosecutors' Office detailed the reasons for appealing the first trial ruling that acquitted A (54, male), recently indicted for violating the Stalking Punishment Act and other charges. The prosecution argued that the court misunderstood the law in acquitting the defendant and that even if the repeated calls causing anxiety were not answered by the other party, the caller should be punished under the stalking law.

The prosecution explained, "The Information and Communication Network Act, cited by the court as grounds for acquittal, focuses on the content transmitted through information and communication networks (such as mobile phones), but the Stalking Punishment Act punishes acts that cause anxiety or fear regardless of whether information or communication occurs." They added, "'Delivery' is sufficient if it enters the other party's sphere of control and does not require actual recognition," emphasizing, "'Ringtone' or 'caller ID display' can be interpreted as codes or sounds delivered under the stalking law."

They further stated, "The stalking law defines stalking even if the perpetrator just waits or watches near the victim," and "It is unreasonable to interpret that the establishment of a crime depends on whether the victim answered the phone." They added, "Repeated calling is a typical stalking type," and "Victims can feel fear and anxiety even from missed calls alone, so punishing repeated calling itself aligns with the legislative intent of the stalking law."

Experts suggest that the judiciary needs to comprehensively consider the pain victims endure, including the legislative intent of the Stalking Punishment Act. Oh Yoon-sung, professor of Police Administration at Soonchunhyang University, said, "It appears that the courts have low sensitivity to stalking victims," emphasizing, "(It's not about the ringtone issue) from the victim's perspective, they think 'I am being persistently stalked by the perpetrator,' so they inevitably feel fear and anxiety." He added, "I expect the verdict will be adjusted through appeals."

Former judge and Democratic Party lawmaker Lee Tan-hee said, "Current court rulings fail to consider the various contexts of stalking behavior," and "It is necessary to enact aggravated punishment provisions reflecting the characteristics of stalking crimes or to subdivide statutory penalties according to the diverse forms of stalking."