The Supreme Court has ruled that special education assistants supporting the education of students with disabilities in elementary and middle schools are mandatory reporters under the Child Abuse Punishment Act, and therefore face aggravated punishment if they abuse children.
According to the legal community on the 14th, the Supreme Court's Third Division (Presiding Justice No Jeong-hee) overturned the original ruling that sentenced Lee Mo to six months in prison with a two-year probation and remanded the case to the Seoul Central District Court. Lee was prosecuted for violating the Child Abuse Punishment Act.
Special education assistant Lee was charged with physically abusing an autistic student twice in April 2018 at an elementary school in Dongjak-gu, Seoul, including twisting the student's arm behind their back to force them to lie face down after the student hit her.
Article 17(3) of the Child Welfare Act prohibits "physical abuse that causes bodily harm or harms the health and development of a child." Violations are punishable under Article 71(1)(2) of the same law by imprisonment of up to five years or a fine of up to 50 million won.
Furthermore, if a mandatory reporter under the Child Abuse Punishment Act commits a child abuse crime against a child under their care, aggravated punishment applies under Article 7 (Aggravated Punishment for Workers at Child Welfare Facilities, etc.) of the Child Abuse Punishment Act, increasing the penalty by up to half of the prescribed sentence for the crime.
The prosecutor viewed Lee as a mandatory reporter and indicted her for violating the Child Abuse Punishment Act.
In court, Lee's defense argued that her actions were intended to restrain the disruptive child or to bring the child back into the classroom, and thus there was no intent to abuse.
Lee's defense also claimed that as a special education assistant, she is not a faculty member under Article 19 of the Elementary and Secondary Education Act and therefore not a mandatory reporter under the Child Abuse Punishment Act.
The first-instance court rejected all of Lee's claims, found her guilty of violating the Child Abuse Punishment Act, and sentenced her to six months in prison with a two-year probation. The court also ordered 40 hours of child abuse prevention lectures and a five-year ban on employment in child-related institutions.
The court stated regarding Lee's claim of "no intent to abuse," "The concept of abuse under the Child Welfare Act should be interpreted more broadly than under the Criminal Act. Intent to abuse does not require a purpose or intention to physically abuse the child; it is sufficient if the perpetrator is aware, even indirectly, of the risk or possibility that their actions may harm the child's health or development."
The court considered that Lee, who was 170 cm tall and weighed 91 kg, forcibly laid the fourth-grade elementary school victim, who was only 135 cm tall and weighed 30 kg, on the floor, twisted the victim's arm behind their back, pressed the victim's leg with one hand to immobilize them, or pressed the victim's waist with her knee, which was dangerous and violent enough to potentially injure the child.
The court also judged that there was no urgent situation requiring Lee's use of force at the time of the incident, and even if the child was acting violently, considering the physical difference between Lee and the child, Lee could have restrained the child by less forceful means such as holding the arm or hugging the body.
The court also rejected Lee's second claim that she was not subject to aggravated punishment.
The Child Abuse Punishment Act defines "faculty members under Article 19 of the Elementary and Secondary Education Act" as mandatory reporters. Paragraph 1 of the same article defines "teachers," and paragraph 2 states that schools have administrative staff and other employees necessary for school operations. The issue was whether special education assistants like Lee could be considered other employees.
The court found that special education assistants are included in the total number of staff according to provisions in the Special Education Act, which mandates providing assistants for students with disabilities such as visual or intellectual disabilities, and the Seoul Metropolitan Office of Education's regulations on educational public officials, and thus concluded that special education assistants are mandatory reporters.
The court concluded, "The 'staff' defined in Article 19(2) of the Elementary and Secondary Education Act refers to non-teacher clerical staff responsible for administrative affairs at elementary schools and others (administrative staff) or those responsible for other necessary school operations (other staff). It is reasonable to consider special education assistants as other staff under Article 19(2) of the Elementary and Secondary Education Act."
However, the second-instance court ruled differently.
The court stated, "According to the principle of legality, the interpretation of penal laws must be strict. The defendant is not a faculty member under Article 19 of the Elementary and Secondary Education Act and therefore cannot be considered a mandatory reporter," overturning the first-instance ruling.
The court cited that Lee was assigned as an assistant under the Special Education Act, not the Elementary and Secondary Education Act; that the Elementary and Secondary Education Act does not explicitly list special education assistants or other assistants as faculty members; and that the Seoul Metropolitan Office of Education's ordinance on hiring educational public officials defines educational public officials as workers under labor laws and is a local regulation limited to labor relations, so it cannot alter the scope of faculty members defined by the Elementary and Secondary Education Act.
However, the court held that since Lee was not a mandatory reporter, she could not be convicted of violating the Child Abuse Punishment Act, and thus acquitted her of that charge, but found her guilty of violating the Child Welfare Act (child abuse) and maintained the original sentence.
But the Supreme Court judged that the second-instance court's ruling was incorrect.
The court stated, "Among special education assistants defined as assistants under the Special Education Act, those working at schools defined under the Elementary and Secondary Education Act are affiliated with those schools and perform auxiliary roles in special education and school activities under teachers' instructions," and "They fall under 'faculty members under Article 19 of the Elementary and Secondary Education Act,' who are mandatory reporters."
The court cited regulations in the Elementary and Secondary Education Act, special education-related laws, and enforcement rules concerning special education and supporting assistants at schools, as well as the obligation imposed on school principals to provide assistants.
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