A decision by the Constitutional Court has found unconstitutional a clause of the Act on the Protection of Children and Youth against Sex Offenses providing for heavier penalties when teachers and others commit sex crimes against children and teenagers under their protection.
On the 21st, the court said it had ruled the Act on the Protection of Children and Youth against Sex Offenses Article 18 unconstitutional by a 7-2 vote of the justices. Article 18 provides that when a sex crime occurs at institutions related to children and teenagers, such as schools, kindergartens, and day care centers, if a person obligated to report the offense commits a sex crime against a child or teenager under their protection or supervision, the sentence must be increased by up to one-half.
A, an elementary school teacher, was indicted for committing sex crimes by, among other acts, wrapping arms around the waists of two sixth-grade girls during an after-school class and sitting them on the lap. Prosecutors initially indicted under the Act on Special Cases Concerning the Punishment of Sexual Crimes (forcible molestation of a minor under 13) and later amended the indictment by applying Article 18 of the Act on the Protection of Children and Youth against Sex Offenses.
A then sought a constitutional review of Article 18 of the Youth Protection Act, which mandates heavier sentences, and the Cheonan branch of the Daejeon District Court accepted the request. The court found substantial grounds to view the clause as unconstitutional, determining it violates the principle of proportionality in criminal punishment and infringes judges' discretion in sentencing.
In the past, the statutory penalty for forcible molestation of a minor under 13 was imprisonment for not less than five years or a fine of 30 million to 50 million won. After the Act on Special Cases Concerning the Punishment of Sexual Crimes was revised, the fine was removed, and with Article 18 of the Act on the Protection of Children and Youth against Sex Offenses added, the lower limit of the statutory penalty is seven years and six months in prison.
The court said, "Even when the degree of violence, intimidation, or molestation is relatively minor, making it so that a prison term of at least three years and nine months must be imposed even after mitigation for extenuating circumstances is difficult to justify, even considering criminal policy reasons."
Justices Kim Hyeong-du and Kim Bok-hyeong, in dissent, said, "Setting a strict minimum sentence can be justified as fulfilling the state's constitutional duty of active protection," adding, "It is legislation within the scope of legislative discretion amid the trend of strengthening protection for children and teenagers."