TheWorld of ‘Minority Report’ Lived in South Korea
Kyung Sin Park
Director, Open Net
Professor, Korea University Law Professor
In 2012, there were 2,224 child sex crime investigations conducted by the police, an about 22 times increase from the previous year in Korea.(Korean) What was more shocking, a sizable number of them were women. What happened?
A year ago, in 2011, in the wake of a series of several highly publicized cases of child rape-and-murders, the National Assembly revised the child pornography law to cover the material featuring “creations or persons who can be perceived as minors” in sexual intercourse or poses.(Korean) Much Japanese pornographic material consumed in Korea features adult actors/actresses or animation characters, who are featured as minors either in the stories, or as it turned out, only in the eyes of the police. 2,224 people, mostly in their early 20s, were rounded up and investigated as “child sex offenders” under the Children and Minors’ Sex Protection Act. Many of them were actually indicted as such and received guilty verdicts, which will be followed by 20 years of residence registration and 10 years of employment restrictions, just like those offenders who coaxed real children into having sex in front of the cameras but definitely unlike the distributors of ordinary obscene material in which animation characters or live adult characters “look above 19.”
Child pornography law aims to prevent the visual recording of a minor having or simulating a sexual act with the penalty of criminal punishment. The idea is that whether the minor wanted to do it or not, creating or leaving such record causes irrecoverable damage on the minor’s psyche. Soon, it was extended to include a minor who did not appear before the recorder’s camera but whose facial photograph was morphed into the bodies having sexual intercourse. The minor suffers the psychological and reputation damage all the same when such material is distributed to others. Finally, it is not just photographs that cause such damage: Even drawings and paintings, if realistic enough to be “identifiable” with a real child, can cause the same damage to that identifiable child. So the U.S. law was designed to specifically include such material. Now, one should be careful: although there is much literature speaking of punishing “virtual child pornography”, it many times means these works which “virtually” make reference to real children who stand to suffer psychological damages from the production/distribution of those works from which they can be identified, e.g., the image of a non-existent child created by morphing a child’s face to an adult’s body in coitus. Virtual child pornography many times only mean virtual sexual images of real children, not sexual images of virtual children! Therefore, for instance, Germany punishes pornography portraying a child’s sexual act up to 3 years or 5 years in prison depending on the age of the featured minor but only when that child is a real person.
Now, U.K. went further than that to create a new law chapter called “images of children” which a pornographic image focusing on an imaginary child’s genitals or depicting any penetrating sex or any masturbation up to 3 years in prison. However, these laws are not child pornography regulations: they can be viewed as obscenity regulations for they do not aim to punish the victimization of children taking place during the production of the child pornography, which is punished by other provisions that are much harsher, i.e., up to 10 years in prison. Therefore, none of the relevant provisions in UK applies to the work featuring imaginary children the same provision applicable to the work featuring real children.
Korean law does, and is probably the only country in the world that does so explicitly. The very provision requiring MINIMUM 5 years for producing child pornography with real children and punishing distribution of such work up to 3 years and/or a fine applies also to the work featuring sexual acts of “creations or persons who can be perceived as minors”. Therefore, all the enhanced punishment for child pornography using real children, child rapes, child molestations, etc., such as 10 years of employment limitation and 20 years of registering of their names with the local police apply also equally to the work not involving a real child.(Korean) Also, Korea does not adopt a unitary code system but has a discrete set of laws, one of which is the Child and Minor’s Sex Protection Act. Being investigated, charged or convicted under the law of such name has a serious stigmatizing effect, which an English “Images of Children” offender will not suffer. The law treats an imaginary sex with an imaginary, non-existent child the same as sex with a real child. An cartoonist who authors a work and has a child protagonist in it engage in sex and a person who videorecords a real child’s sexual act equally face a MINIMUM 5-year sentence: Is this fair or constitutional?
The U.S. Supreme Court already spoke on the issue in Ashcroft v Free Speech Coalition, that punishing a non-obscene imaginary child character’s sexual acts violates the Constitution. DOJ argued that it should be punished as child pornography because it generates an environment conducive to sex crimes against children. The Supreme Court, however, found that such work is not proven to cause the viewers to commit sexual crimes against children, and therefore that, as long as it is not obscene, punishing such work on the basis of mere conjecture of harm violates a clear and present danger doctrine and freedom of speech. The implication is that, if such work had been obscene, it should be punished as obscenity, not as a sex crime against a child.
The Optional Protocol to the UN Children’s Rights Convention also limits its condemnation of child pornography to those works relating to a real child. The EU Framework Decision also goes only as far as punishing morphing of real children’s image for its definition of ‘virtual child pornography’ is thus limited. Of course, under both documents, drawings and paintings will be also covered as long as they are realistic enough to point to a real child.
The unique Korean law has created interesting results. One lawyer in the trial for animation characters argued in court: “So, if the law punishes a material for its imaginary sexual character’s age, how will we measure the age of, say, personified animals, extra-terresterials, or for that matter vampires whose average age in the stories seem to exceed 100 years?” A judge hearing the argument changed the count from child pornography to obscenity, which by the way carries only 1 year imprisonment at most. In other words, even if we were to accept the law punishing harms on virtual children, the law will be very difficult to apply for it is difficult to measure a virtual child’s age. Also, the police officers are spending a lot more time in front of computers than behind scumbags because they can find the uploaders of porno files much more easily than track down the ones making pornos with real children. But, having done so, some of the people behind the IP addresses turned out to be women! Female pornographers are hard to come by and if at all should not be that many. The police’s line of questioning for such female suspect typically goes like this: “Okay. You volunteered to take the charge to protect your brother?”
On a more somber note, the new law ended up putting a lot of young people into the criminal procedure: most of the 2,224 people were caught uploading (actually downloading in the form of a torrent file into a Shared Folder) Japanese adult videos featuring adult actors in juvenile’s “costume play”, e.g., wearing school uniforms. Many young people caught fresh into or out of college cry their hearts out facing the prospect of the hiring/registration hell for 10-20 years. Where uploading pirated animations to earn money from the web hard service providers is a past time unfortunately popular among poor youths, the story goes, the law supposed to protect youths ended up suffocating many youths’ future hopes. The law sometimes put out of employment young people who already have jobs: the law put at risk of criminal prosecution the animation production outsourced from Japan and literally wiped out that industry. One female child rape victim cried on television recently: “In my experience, pornos don’t make people commit child rapes. People natured and nurtured to do so will do so regardless. Stop web-surfing and get out there catch the real criminals.” True, the same provision being used against the works showing real children and virtual children, the police officers greedy for their promotion points will take their patrolling time out for cyber-patrolling, actually reducing the police work on real abuses.
“Enough is enough.” In May 2013, a judge Byun Min—Sun filed a long request for constitutional review of the CMSPA. In June, a judge in higher court acquitted a “school-uniform” adult video of a CMSPA charge. In addition to judges requesting the indictments to replace a CMSPA charge with an obscenity charge, many prosecutors are closing their cases on “deferral of indictment”, which actually means that the person is permanently protected from prosecution unless he or she comes back to the prosecutors’ office on another crime.
I abhor Japanese animation showing children being raped, explicitly down to their body parts. I think people crowding out the cyber-space open to all with such material should be punished, but for what? Obscenity, not child pornography. Why is the difference so important? Not just because the punishments are wildly different but because it is the bright line holding up the bastion of freedom of speech: a clear and present danger doctrine or a speech-act dichotomy. The Japanese anime only imagining something should not be punished for actually committing that something. Movies showing too much drugs and murders may be regulated to protect the sensibilities of the citizenry and possibly to strengthen their vigil against drugs and killings but should never be punished for actually committing drug-trafficking or murders. If we let fantasies be punished here as if the fantasies were actually realized, there will be no stopping. All visual imaginations, for instance, by environmentalists of exploding a whale-hunting ship, by anti-war demonstrators of ammunition cargoes intercepted, will be next targets of jingoistic choke-hold on people’s imaginations.
 18 U.S. Section 2256(8)
 See definition of ‘virtual child pornography’ in Council Framework decision 2004/68/JHA, 22 December 2003,
 http://legislationline.org/documents/section/criminal-codes Criminal Code of the Federal Republic, Section 184b (victim’s age below 14 years), 184c (victim’s age between 14 and 18 years)
 http://www.legislation.gov.uk/ukpga/2009/25/part/2/chapter/2 Coroners and Justice Act of 2009
 http://www.legislation.gov.uk/ukpga/1978/37/body Protection of Children Act of 1978 punishes child pornography made of a real child of less than 16 years old up to 10 years of imprisonment.
 Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)
 For avoidance of doubt, see page 5 of 2005 Europol Public Information “Child Pornography: Legislation within the European Union” http://www.internationalresourcecentre.org/en_X2/Documents/LegislationEuropol_2005.pdf