Not Guilty Verdict on Child Swapping Allegation
[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] Seok Mo-ssi (50), the biological mother of a '3-year-old girl' who died in a villa in Gumi, Gyeongbuk Province, was sentenced to a suspended prison term in the retrial after remand. The court acquitted Seok of the charge of child swapping.
The 1st Criminal Appeal Division of Daegu District Court (Presiding Judge Lee Sang-gyun) overturned the original sentence of 8 years imprisonment and sentenced Seok, who was detained and indicted on charges of kidnapping a minor and attempted concealment of a corpse, to 2 years imprisonment with a 3-year probation on the 2nd.
The court stated, "Regarding the charge of kidnapping a minor, based solely on the evidence submitted by the prosecution, it cannot be reasonably proven beyond a reasonable doubt that the defendant kidnapped the child by swapping the baby."
It added, "We judge that this part of the indictment lacks proof of the crime, and therefore acquit the defendant on this charge while convicting her on the charge of attempted concealment of a corpse."
Earlier, at the sentencing hearing held on the 10th, the prosecution requested the court to sentence Seok to 13 years imprisonment, the same as the first and second trials, stating, "The defendant's crime is inhumane and of very poor quality."
The biological mother, Ms. Seok (49), of the 3-year-old girl who died in Gumi, Gyeongbuk, was sentenced to 8 years in prison in the first trial on August 17 last year, and is seen leaving the Gimcheon branch of the Daegu District Court. Photo by Yonhap News
Seok is accused of swapping the baby born to her biological daughter Kim Mo-ssi (24, currently serving a sentence) with the baby she herself gave birth to (the deceased 3-year-old girl) at an obstetrics clinic in Gumi between the afternoon of March 31, 2018, and the next morning, and then taking her daughter's baby somewhere.
Seok is also accused of attempting to bury the deceased 3-year-old girl by placing the body in a box and moving it in the villa where her daughter lived on February 9, 2021, one day before reporting the girl's death to the police.
Until the time of the incident, Seok pretended to be the deceased girl's maternal grandmother and consistently denied giving birth during the investigation and trial, but was ultimately revealed to be the biological mother, causing shock.
After Kim was arrested, in February 2021, the Gumi Police Station requested the National Forensic Service to conduct a genetic test using saliva to confirm biological parentage, which concluded that "there is no biological relationship between Kim and the deceased girl, but they share the same maternal lineage."
Following this, the Gumi Police requested the Busan Forensic Science Institute to conduct another test including Seok's saliva, and the 'STR genotype analysis' showed a 99.9999% probability of a biological relationship between Seok and the deceased girl.
However, as Seok continued to deny giving birth despite these results, in March 2021, the police requested another test at the Daegu Forensic Science Institute using Seok's fingernails, hair, and oral epithelial cells, which yielded the same result.
The test was conducted once more during the trial. The Daegu District Court Gimcheon Branch, which handled the first trial, requested the Supreme Prosecutors' Office DNA and Chemical Analysis Division to conduct a test, which showed a 99.9999998% probability that Seok is the biological mother of the deceased girl, while confirming no biological relationship between Kim and the girl.
Based on these four rounds of test results, the first trial court judged that Seok must be the biological mother of the deceased girl and sentenced her to 8 years imprisonment. The court recognized indirect facts such as Seok consistently purchasing sanitary pads through an e-commerce site until July 1, 2017, but not purchasing any until July 2018; purchasing breast reduction bras or shaping underwear in July 2017; and ceasing to use public baths after August 6, 2017, as evidence suggesting she was pregnant between July 2017 and March 2018.
Seok's defense argued in court that even if Seok gave birth, the prosecution failed to prove the motive and method by which she kidnapped the girl.
However, the first trial court pointed out, "In a case like this, where the defendant completely denies the charges, the whereabouts of the missing victim are unknown, and there is no objective or direct evidence such as witness testimony or CCTV footage capturing the crime, demanding proof of every link before and after the crime known only to the defendant would lead to an unjust result disregarding the rightful exercise of criminal punishment through discovery of substantive truth. Therefore, it is difficult to require proof of every detail and method of the crime."
It further stated, "If baby swapping is accepted to have occurred, it can be sufficiently recognized that it was carried out by the defendant."
Regarding the motive, the court said, "It is difficult to conclude that the defendant had no motive for this crime," judging that she committed the crime to keep the baby she gave birth to close and to hide her affair from her husband.
The court explained, "The defendant swapped the baby she gave birth to with her daughter's baby so that her daughter would raise the baby she gave birth to, as she wanted to keep her own baby closer than her daughter's child," adding, "In fact, after Kim was discharged, she stayed at the defendant's house with the deceased girl at the defendant's suggestion and later moved upstairs in the same house."
It also added, "The defendant had not had sexual relations with her husband for over 10 years until late January 2019, and due to the sudden pregnancy, she feared her affair would be revealed to her husband and worried she could not raise the baby normally even if she gave birth, so she swapped the babies to have her daughter raise the baby she gave birth to."
The second trial court also found no problem with the first trial's ruling and dismissed Seok's appeal.
However, in June last year, the Supreme Court's 2nd Division (Presiding Justice Lee Dong-won) overturned the 8-year sentence and remanded the case to Daegu District Court.
The court stated, "Until the crime, no one other than the defendant knew about the existence of the deceased girl, and after the crime, no one knew whether the victim was alive. The method of the crime described in the indictment is speculative, and no convincing motive or purpose has been confirmed. Although there is a genetic test result showing the deceased girl is the defendant's daughter, that evidence does not directly prove that the defendant kidnapped the victim by swapping her with the deceased girl."
It continued, "There remain doubts that make it difficult to be confident in convicting the defendant of kidnapping the victim by swapping her with the deceased girl, and since additional trial is possible, it is difficult to accept the original court's guilty verdict. The original court's ruling erred by misunderstanding the legal standard of proof required in criminal trials and failing to conduct necessary additional trials, affecting the judgment."
Unlike the lower courts, the Supreme Court found it difficult to accept the evidentiary power of the genetic test result alone as proof of the crime of kidnapping in the absence of a convincing motive or purpose.
The court emphasized, "When recognizing indirect facts that form the premise of major facts based on indirect evidence, the proof must reach a level that allows no reasonable doubt, and there must be no contradictions or conflicts among the indirect facts, which must be supported by logic, experience, and scientific principles."
It added, "Therefore, the recognition of guilt requires overwhelmingly superior evidence sufficient to conclude the defendant committed the crime based on various indirect facts such as motive, choice of means, process leading to the crime, and the defendant's attitude before and after the crime. The defendant is presumed innocent under the Constitution, and overturning that presumption requires evidence comparable to direct evidence."
The court also pointed out, "If only indirect evidence exists regarding the crime and the evidentiary power of that indirect evidence is limited, and no motive is found for the accused to commit the crime, it is more consistent with criminal evidence law to evaluate the evidentiary power as weak rather than to assume the accused is hiding a clear motive."
It emphasized, "Scientific evidence methods such as genetic or blood type tests have considerable binding force when the facts they assume are proven true and the inference methods are scientifically valid with negligible error. However, judges must carefully examine what the scientific evidence proves and its relevance to the issues when making factual findings."
The court noted, "Since the defendant is the victim's maternal grandmother, even if it is recognized that she swapped the victim with the deceased girl and took her away as alleged, if such acts do not contradict the will of the victim's legal guardians, Kim and her husband, and do not infringe on the victim's freedom and safety, it may not be considered kidnapping. Therefore, additional trials are necessary to determine the defendant's purpose, intent, circumstances at the time, nature and method of the act, and the victim's condition."
Regarding the motive, the court said, "If the defendant had an affair, became pregnant, and missed the timing for abortion, she might have a motive to give birth secretly. However, even if she committed this crime, she would have to secretly care for or abandon her granddaughter born to Kim, so the motive of hiding her childbirth alone does not sufficiently explain the crime."
It added, "The first trial suggested the defendant's desire to keep her own daughter closer than her granddaughter could be a motive, but it is questionable whether a daughter and granddaughter can be considered to have such a difference in affection to commit a swapping crime deceiving the whole family. Moreover, if the defendant committed kidnapping with such a motive, it is difficult to explain her behavior of not actively caring for the deceased girl for a considerable period before Kim neglected the girl to death, and her behavior until reporting the girl's body to the police."
The Supreme Court also pointed out points requiring additional trials among the facts recognized by the lower courts.
The court stated that more accurate trials are needed to determine whether the newborn's weight changes measured at the obstetrics clinic were unusual and whether the identification band that disappeared from the nursery could be detached. It also noted the need for further examination of the nurse's testimony that the obstetrics clinic allowed free access to the nursery entrance but required the mother to come personally or bring the maternal health handbook to take the newborn, and that no infants were allowed outside the nursery before 9 a.m. or after 8 p.m.
Additionally, the court said that since whether the baby swapped before and after the incident was a different person is a key issue, it seems necessary to request an expert to analyze the baby's facial photos and provide opinions. It also noted the need for further investigation into who cared for the newborn and where, considering Seok worked extended hours, about 10 hours a day, after rejoining work on February 26, 2018.
Meanwhile, Kim, Seok's daughter, who raised the baby she thought was her own but was actually her younger sibling and neglected her to death, was sentenced to 20 years imprisonment up to the second trial and gave up her appeal, finalizing her sentence.
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