Scenes of angry mobs in the Middle East and China fill the newspapers, internet and television these days. The raw emotion and irrationality that is driven by nationalism and religious fervor oozes out of the pictures. Ochlocracy, or rule by mob, is a dangerous and scary phenomenon. And yet that is exactly what calls for the resumption of the death penalty, or the institution of forced physical castration, in South Korea. Detailed descriptions of the horrors of crime merely add fuel to the fire and emotional arguments only fan the flames. But now is the time for South Koreans to ask themselves what kind of country do they want to live in; one ruled by the passion of the moment ― by popular gusts of feeling ― or a country ruled by law where fairness and equity abound and there is respect for fundamental human rights.

While all nations face this quandary, South Korea has unique cultural and historical issues which make this decision imperative. The culture in South Korea places strong emphasis on group membership, individuality is discouraged and isolation is a severe punishment. The recent overthrow of the dictatorship means that the majority still remembers arbitrary and capricious brutality and rampant injustice as though it were yesterday. There is a cultural attitude towards prisoners that they are guilty and deserve retaliatory punishment. And, the experience of Kim Dae-jung, a president and a former death row inmate, demonstrates on a personal level for most South Koreans the irretrievable consequences that are possible.

In this context, the recent uproar over sex crimes is both welcome and unsettling. As regular readers of this newspaper know, I have repeatedly focused on the failure of the South Korean justice system to adequately address the rampant sex offenses occurring in South Korea. The ill treatment of victims by the police, the unwillingness of prosecutors to punish first time sex offenders and the illogical decision making of an inexperienced judiciary are notorious and well-known. Solutions that focus on these issues are overdue. However, with greater enforcement comes the attendant responsibility to do so in a manner that also increases the fairness and equity of South Korean society, both now and in the future.

Thus the proposal that victim complaints no longer be required is encouraging. Eliminating this requirement will end the ability of sex offenders to pay off their rape victims as though the victim were a prostitute. The recent changes allowing the police to intervene in domestic disputes will help prevent domestic abuse, including the crime of marriage rape. Likewise the plan to increase mandatory prison sentences for sex offenders is commendable especially as a recent survey of South Korean sex offenders by a Hallym University professor revealed reduced recidivism among offenders who had received more severe sentences. Longer jail sentences also utilize the learning gained from the recent jury system experiment in which South Korean juries on average gave sex offenders longer sentences than South Korean judges. Recently promulgated regulations covering child pornography on the internet are laudable. And even the corporate changes by Samsung eliminating after hours drinking parties are praiseworthy as an effective way to reduce the opportunities for sex crimes.

However, arguments that penalties for sex crimes should include physical punishment risk a degradation of South Korea’s hard won democracy. Calls for a resumption of the imposition of the death penalty delegitimize the experience of innocents like former President Kim Dae-jung and calls for forced physical castration ignore the potential for wrongful convictions. National Assembly members who argue that testosterone can be administered to an individual mutilated due to a wrongful conviction ignore the fact that such a person is forever bereft of the fundamental human right to procreation. As with the death penalty, such punishment is irreversible and irredeemable.

Further, the idea that prison is comparable to such physical punishments or that prison itself can be a violation of human rights has been repeatedly argued by convicts throughout the world and uniformly rejected by courts throughout the world, including South Korean courts. That does not mean that there cannot be a violation of human rights in prison. Recent news stories from Georgia have labeled the sexual abuse of prisoners there as a clear violation of human rights. Even issues of sanitation and safety due to the extreme overcrowding of California prisons have led the U.S. Supreme Court to find a violation of human rights. However, the solution of the U.S. courts was to order the release of non-violent prisoners, not to begin executions.

Thus, while South Korean prisons are notorious for having tight jail cells, they do not suffer from overcrowding or known abuses. Further, South Koreans believe that jails should be uncomfortable as a kind of retribution and therefore, despite empty cells, prisoners are often forced together to increase their discomfort. This retributive attitude also means there are no provisions for rehabilitation or psychological treatment. Further, none of these conditions constitute a violation of human rights according to international legal norms. Most significantly, there has not been a single successful case by a South Korean prisoner that a South Korean prison was a violation of their human rights. And even if prison were deemed to constitute a violation of human rights, it does not mean that we should institute a physical punishment that is an even clearer violation of human rights.

Therefore, the reforms mentioned above along with longer jail sentences and provisions for rehabilitation and psychological treatment will be highly effective while simultaneously preserving the dignity of South Korean democracy. The current moratorium on the death penalty should not be broken regardless of the will of the majority and implementation of forced physical castration is unnecessary in a country where the more effective method of chemical castration has already been implemented.

For those who desire more concrete reasons than the lofty ideals of fundamental human rights the issue is also clear. Once a society assumes the right to impose physical punishment on criminal offenders then the removal of a part of your body or the ending of your life becomes the choice of the majority and this choice will change as societal norms change. Currently the majority does not consider the removal of a finger or a hand as an appropriate punishment for theft, but there was a time when it was considered appropriate. If such a possibility seems too outrageous, then consider that current proposals are to impose forced physical castration on individuals who violently rape a child under the age of sixteen and discussion is already underway to change the age to nineteen. At what point will it be changed to cover all rapes regardless of violence? Will it eventually cover statutory rapes? Will the majority apply it to a female teacher who has sex with a middle school boy by removing her ovaries? Will a reinstated death penalty eventually be imposed on sex crimes? All of these questions become valid once the line into physical punishment has been crossed. And whether a skilled surgeon performs this act or a blunt knife is used, the result is the same ― we have given the majority power over our bodies and our lives.

Therefore, while the passion of the people should not be ignored, assembly members have a solemn duty to future South Koreans to enact laws preserving the dignity of the democracy so recently obtained. A descent into mob rule, despite its emotional appeal, endangers that democracy and all who live in South Korea.

By Daniel Fiedler

Daniel Fiedler has been a professor of law in South Korea since 2006. Before being brought to South Korea by his Korean wife he practiced corporate and tax law in San Francisco. ― Ed.