On April 16th, 2014, a forum to raise a question against the punishment for stalking was held by Korea Sexual Violence Relief Center and Women Link.
/Photography from Korea Sexual Relief Center
On February 22nd, the Ministry of Justice announced “General Prevention Measure of Harm of Stalking.Dating Violence.” In the announcement, the ministry stated that a special law to punish stalking would be enacted in the first half of this year. According to the new law, stalker can be penalized strictly and even imprisoned unlike the existing cases. Since stalking has a high possibility to be changed into the second offense, there have been discussions demanding to reinforce the penalty for stalking. Finally, by enacting the special law, Korea will be one of the countries that has legal basis to punish stalking.
Legal basis to penalize stalking is not clearly established in Korea
Stalking is a conduct of following a person or waiting repeatedly against one’s intent. According to the report material from the 28th Examination of Government Administration Conference, the number of arrest for stalking steadily increased from 297 in 2014, to 436 in 2017. Moreover, stalking has a potential to be changed into the other serious offenses. Lee Yoon-ho, the professor of the College of Police & Criminal Justice, said, “Stalking can be committed by a stranger or even an acquaintance. It occurs between a person who wants to cut the relationship and one who wants to last it. Stalking can degenerate into violence or even murder.”
Due to this kind of danger, The National Assembly of The Republic of Korea tried to make the law for punishing stalking since 1999. Although a total of 16 bills have been brought, the bills have not been passed. Even now, there is no “independent” law to clearly define the types of stalking and explain how to penalize it. Therefore, the crime is just punished based on a clause, “continuous harassment,” in the Minor Offense Law after the clause was introduced in 2012.
Punishment for stalking in other countries is heavier than Korea
Considering the hazard of stalking that can lead to more serious offense, it is important to punish stalking heavily to help prevent the crime. Professor Lee mentioned, “The heavier the punishment for some crime is, the lower the possibility of committing it is. One of the purposes of penalty is preventing the crime by suppressing the offender’s criminal desire. Making the offender feels pain by inflicting heavy punishment, it can induce for them to be reluctant to offend it again. However, not only the strict penalty but also the certainty is important. It means that ‘whoever’ commits the crime is arrested ‘certainly.’”
On this account, several countries including the U.S.A and England have imposed heavy penalty on stalker since early 1990s. In the case of the U.S.A., the state of California started to make a law punishing stalking in 1990. With the influence of California, other states started to legislate. According to the law of the state of California, the offender who keeps following a person or threatening repeatedly can be fined up to one thousand dollar or imprisoned less than one year.
Likewise, England introduced “The Protection from Harassment 1997” to penalize stalking. Since then, it has been revised depending on the situation and now, the maximum penalty of the stalking which amounts to “harassment” is imprisonment of six month, an unlimited fine or both. Moreover, stalking involving the victim’s fear of violence or serious alarm can be sentenced up to ten years’ imprisonment or an unlimited fine, or both. In this regard, Ryan Gardener (24) from England said, “I think it is good to have a system in place that punishes people for harassment by stalking, and punishment like imprisonment is obviously good for helping secure the safety of the victim.”
Unlike the two countries mentioned above, in Korea, independent law to punish stalking is not introduced yet. Due to the absence of the law, Minor Offenses Law is used when penalizing stalking. According to the Minor Offenses Law, Article 3, Clause 41, “continuous harassment,” the person who keeps following or demanding a date against the victim’s intention can be only fined less than ten thousand won or receive detention.
Because of the light penalty, there has been social remonstrance against the defect of the existing law. As an example, on April 16th, in 2014, the forum “Raise a Question Against Truth That the Penalty for Stalker Is Eight Thousand Won” was held by Korea Sexual Violence Relief Center and Women Link. Jeong Yea-won, an activist of Women Link, said, “Many people have raised their voices that stalking is a ‘serious offense’ and we need to realize it. Several bills to deal with punishing stalking have been proposed and foundered repeatedly. We thought that the penalty of stalking can never be treated by just 80 thousand won. That’s why we posed a question against the regulation by having the forum.”
As seen in the flaw of penalty, Korea has not acted seriously to prevent stalking. Professor Lee stated, “Our society has not fully understood the danger of stalking. One of the reasons why people could not apprehend the seriousness is because stalking is an invisible crime and does not inflict immediate damage to the victim. These features can make other people not be able to recognize its problem.”
Will Korea’s new law define stalking as Antragsdelikt or not?
Antragsdelikt is a kind of crime in which it is allowed to investigate the case only after the victim’s accusation. The purpose of the crime is to consider the victim’s intention for the case to be known to the society. In the case of stalking, it is different in every country whether stalking is regarded as Antragsdelikt or not. First, Germany defines stalking as Antragsdelikt. In 2007, German government revised the criminal law and added the article 238, “Nachstellung (stalking).” Based on the law, stalking was included in Antragsdelik. However, especially, when the offender has criminal record of stalking to other victims or repeatedly conducted stalking, it is permitted for the police to investigate the crime not having the victim’s intent.
Otherwise, when stalking is non-Antragsdelikt, it is possible to investigate the crime without the victim’s accusation. It can facilitate for the stalker to be arrested, including the case of the cyber stalking. Japan defined stalking as non-Antragsdelikt in 2016. It had stalking regulating law since 2000. However, there was a case that a Japanese idol star was attacked by a stalker, which let people know about seriousness of stalking. In this social atmosphere, Japanese government revised the existing stalking law. According to the revised law, Antragsdelikt was abolished in punishing stalking. In addition, the law defined the person who commits cyber stalking as “Net Stalker” and the punishment for cyber stalking was reinforced. With this law, arrest of stalking could be reported easily, including cyber stalking. Regarding this, Mika Tsurumi (19), who lives in Japan, said, “I think as Japanese tend to be shy and inclusive, they do not have courage to say it to the public or to even police. As it is written in the article that Antragsdelikt requires victim’s accusation, I think it is hard for other people to accuse the case."
In Korea, since there is no individual law dealing with stalking, it cannot be said that stalking is Antragsdelikt or not yet. However, there was a suggestion that stalking should not be included in Antragsdelikt if stalking law is established afterward. Nam In-soon, the congressperson of the Democratic Party, brought the “Punishment of Stalking Exemption Law” in 2016. The bill contained the abolishment of Antragsdelikt in stalking. Whether stalking will be Antragsdelikt or not is still being discussed in The National Assembly. It will be decided when individual stalking law is legislated this year.
Changed public awareness can keep pace with the new law
Although current Korean law has defects in terms of penalizing for stalking, some of these will be improved. On February 22nd, the Ministry of Justice announced that the independent stalking law was passed in The National Assembly. Based on the new law, the types and definition of stalking will be clearly established. In addition, stalker can be fined more strictly, and even be imprisoned. Consequently, stalking will not be regarded as “minor offense” anymore. Also, it will be settled whether stalking is Antragsdelikt or not.
By reinforcing the punishment, the law can let the public recognize the seriousness of stalking and help to arrest the criminal. However, only law cannot be a solution to prevent stalking. Social awareness which neglects the hazard of stalking and the victim’s feeling needs to be changed. Ryan Gardener mentioned, “I think one of the most important things for preventing stalking is raising awareness of it as a crime-letting the public know what they can do if they become a victim of such harassment and how they can report it to the police.”
Jeong Yea-won mentioned, “Of course it is important to establish the law to punish stalking. However, considerable change does not occur just by enacting law. Not only the law but also the public awareness about stalking and victim should be improved. We should not define stalking as personal problem and romanticize stalking as an effort to win the love. It is such an attitude ignoring the victim’s intent. Media produce the scenes where the unilateral expressions of love are prevalent and romanticized. In this situation, besides the law, public awareness should keep pace with the legal basis.”
Yu Na-kyung firstname.lastname@example.org
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