KWDI Korean Women’s Development Institute

Abstract

Ways of Legislative Improvement in Response to Technology-Facilitated Sexual Violence

 

Jeonghye Kim

AeRa Kim

Boram Bak

Namhee Hong

Sooyeon Jung

 

Ⅰ. Introduction

1. Research Purpose and Necessity Despite an increase in technology-facilitated sexual violence and ensuing changes in gender-based violence, the law is still insufficient to cope with the violence. In this background, it is perceived that technology-facilitated sexual violence is possible based on dual sexual norms arising from sexual discrimination, stigmatization of victim women, and the culture that consumes women sexually. With this problem awareness, it is necessary to analyze characteristics of technology-facilitated sexual violence and constantly changing aspects of crimes and to review limitations of existing laws, and to present ways to improve the laws. This study aims to examine limitations of current laws and prepare ways of legislative improvement focusing on the punishment of technology-facilitated sexual violence and areas of support for victims.

 

2. Research Contents

First, we analyzed characteristics of technology-facilitated sexual violence. Through a literature review and analysis of technology-facilitated sexual violence cases, we identified characteristics of technology-facilitated sexual violence according to technological properties and to generate rudimentary data to seek the areas and contents in need of legal response and methods of supporting victims. Second, we analyzed contents and limitations of laws related to technology-facilitated sexual violence. We looked into the process of changes in laws related to the punishment of technology-facilitated sexual violence and support for victims as well as contents and limitations of existing laws, presented the necessity for legislative response, and analyzed the contents of bills on technology-facilitated sexual violence proposed in the National Assembly and legislators’ discussion materialss for reference when preparing alternatives. Third, we analyzed overseas cases of legislation and policy response to technology-facilitated sexual violence, derived implications and used them as data to prepare legislative alternatives. Fourth, based on the results of the above analysis, we suggested ways of legislative improvement related to technology-facilitated sexual violence.

 

3. Research Methods

A. Literature Review Reviewed previous studies at home and abroad on technology-facilitated sexual violence, and analyzed relevant existing laws, bills proposed in the National Assembly and committee minutes, and overseas laws and policy cases related to technology-facilitated sexual violence. B. Case Analysis Analyzed support cases related to technology-facilitated sexual violence, collecting a total of 275 cases from four counseling centers. C. Expert Counsel Received counsel from experienced experts in studying and supporting victims of technology-facilitated sexual violence and reflected their counsel in this study when setting directions and making plans for research, collecting counseling cases and preparing analysis methods, and reviewing directions for case analysis, legal limitations of punishing technology-facilitated sexual violence and supporting victims and seeking alternatives.

 

Ⅱ. Analysis of Characteristics of Technology-Facilitated Sexual Violence Using Counseling Cases

 

1. Overview of Counseling Cases With the technological evolution, types of offence and victimization have diversified, but there has been a lack of laws and systems to prevent victimization and to support victims. Technology-facilitated sexual violence is not only a gender-based violence where women account for an overwhelming majority of victims, but also a type of sexual violence that consumes women as sexual objects. Also, technology-facilitated sexual violence mass produces victims due to the historical process of forming the online culture, absence of legal and institutional punishments, and mild sentencing of the crime. Technology-facilitated sexual violence has characteristics of victims and offenders between ① intimate relationships, including dating or married couples, ② online relationships, and ③ business relationships, with most of its cases related to ④ many and unspecified persons participating in the violence through endless distribution and redistribution of illegal images/videos, etc. In the counseling cases of technology-facilitated sexual violence, the type of practical and potential damages victims were concerned about was their anxieties about distribution and redistribution. However, the counseling cases still tended to treat redistribution lightly compared to the primary distribution. Also, there was insufficient awareness of falling victim to the secondary distribution.

 

2. Characteristics of Sexual Violence according to Technological Properties According to the evolution of a digital media environment, there has emerged a new type of technology-facilitated sexual violence and sexual exploitation, and so have there been various types of offences making use of inadequate legal systems or new technologies. Findings from the analysis of counseling cases include: first, stalking, as daily harassment facilitated by digital technologies, is connected to victimization, or it appears as victimization itself. Stalking can be said to be similar in nature to illegal distribution in that it exercises influence on the victim’s social media or on the network of people around the victim linked to the social media. Stalking crime controls the victim by pressuring the victim to think that he or she is under the offender’s influence. Second, as it becomes easy to save, copy, and send files, prevention of illegal image-taking has become impossible, and thus the possibility of distributing videos remains present as ever. In particular, a series of victimization and various types of technology-facilitated sexual violence crimes take place in connection with each other due to the distribution of videos. Third, when illegally distributed, victimized women’s personal information is distributed together with illegal sexual images/videos. When threatened with distribution too, these women are threatened to distribute their personal information including their sexual images. Fourth, children and youth, and people with developmental disabilities are vulnerable to technology-facilitated sexual violence due to not only limits in their intellectual abilities, coping abilities, and social experience but also poor social conditions. Accordingly, their victimization reveals more and more its character of being aggravated, prolonged, subordinated, and exploited, while their autonomous coping abilities lower and their recognition of victimization becomes selective. Fifth, there were several cases of victimization through personal broadcasting on the Internet. In these cases, victims were mobilized for sexual-purpose broadcasting. As they were drunk or drugged when broadcasting, they were hardly aware of falling victim and thus it was difficult to collect evidence. Sixth, as an issue over evidence, evidence was not properly seized or searched. Videos submitted as evidence were edited and used as a proof of concealing the perpetration. Seventh, as sexual abuse materials is distributed via a closed platform, it is difficult to identify the current occurrence of victimization or its size. Eighth, there were cases of using illegal sexual images/videos for online broadcasting or as video clips to attract customers. This type of sexual exploitation has a characteristic of sex-trafficking for the purpose of profit-making as well as a stronger characteristic of sexual violence or a characteristic of accompanying the victimization of technology-facilitated sexual violence. When encountered with the existing gender culture that includes a society’s dual structure of judgment towards women’s body and sex, changes in the media environment and technological development have evolved the perpetration types of technology-facilitated sexual violence. As a consequence, women have experienced various types of victimization that are not encompassed by laws and systems. Technology-facilitated sexual violence has been discussed as an illegal behavior and crime, and legislations enacted to prevent the violence. In spite of this, attention should be paid to the constant occurrence of related accidents, and diverse measures for legal, institutional, and socio-cultural complementation are needed to improve this situation.

 

Ⅲ. Limitations of Laws on Technology-Facilitated Sexual Violence

 

1. Limitations of Reflecting Characteristics of Technology-Facilitated Sexual Violence Globally, the evils and illegality of technology-facilitated sexual violence have been much underestimated and characteristics of digital content have not been reflected. Crimes taking place based on online spaces using digital content such as making, processing, and distributing sexual images do not correspond to the traditional concept of sexual violence based on physical reality. As for technology-facilitated sexual violence, however, its requisite elements as a criminal offence, meaning of falling victim to sexual violence, investigation methods and management of evidence, judicial proceedings, disposal of forfeited goods, statutory penalty and sentencing criteria, content and methods of protecting and supporting victims are all established modelled after the traditional concept of sexual violence. This has trivialized the victimization of technology-facilitated sexual violence, lowered statutory cap on punishment, and left sentences at a low level. Also, the laws that could not reflect a newly emerged type of behavior has caused a gap in both punishment and support for victims.

 

2. Demand for Sexual Shame and Punishment of Obscenity

The Criminal Act, a general law, applies to taking and distributing sexual images/videos by using camera, etc., child and youth sexual exploitation materials, and distribution of obscene information via information and communications network. The crimes of making and circulating pornographic pictures as set out in the Criminal Act is based on the concept of “obscenity.” These crimes and obscenity using communications media commonly demand that they arouse sexual stimulus or bring the harm of sexual shame. The concept of “sexual shame” recognizes only a particular type of shame among the victim’s various emotions as the victim’s reasonable and normal emotion. Demanding “shameful emotion” from sexual violence victims are criticized in that it strengthens dual and discriminative norms of sexuality. Reflecting such issues, the court as well tries to construe the concept of sexual stimulus and sexual shame in a broader sense. From the aspect of legal interests to be protected, the court no longer talks about the protection of social morality only. The crime of obscenity using communications media and the crime of making sexual images/videos by using camera, etc. are prescribed to protect the right to sexual self-determination, moral right, and sexual freedom as personal legal interests and to establish sound sexual customs as social legal interests. The court has shown changes in interpreting sexual shame as a major concept and legal interest to be protected from the crimes of technology-facilitated sexual violence. However, it is difficult to expect stable legal interpretation when the concept is completely left to the court’s interpretation while leaving the concept as it is. For this reason, it is necessary to legislatively reflect changes in the criteria for the court’s interpretation related to sexual shame. All the same, victimization of sexual violence is denied in practice due to the concept of sexual shame, and in punishing technology-facilitated sexual violence, there strongly remains the character of punishing behavior that violates social morality. The penal clause for the reason of obscenity bans a wide range of sexual expressions. Combined with the norm of sexual purity required of women and sexual violence victims, this leads to exclude from protection women as “violators of moral norms.”

 

3. Legal Limitations of Punishing Technology-Facilitated Sexual Violence

 

A. Omission and Imbalance of Punishment due to the Way of Listing Provisions

The Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (hereinafter called the “Act on the Punishment of Sexual Crimes”) and the Act on the Protection of Children and Youth against Sex Offenses (hereinafter called the “Juvenile Sex Protection Act”) stipulate criminal acts and aspects of distributing illegal images/videos, combined materials, and child and youth sexual exploitation materials in the way of listing them one by one. By regarding a behavior as not included in the listed behaviors for the interpretation of the wording, this raises the problem of making punishment impossible even though a behavior has a similar meaning and criminality to that of the listed behaviors.

 

B. Limitations of “Against Will”

 

The requirement for no punishment against will in technology-facilitated sexual violence causes a problem related to the scope of consent and the authenticity of the consent. In the process of asking whether image-taking, editing, and distribution were done against will, it is not questioned whether consent was obtained regarding its content, purpose, method, and scope, respectively. If a law checks only if the victim gave consent to the acts of image-taking, editing, and distribution, etc., the law may bring a gap to punishment. If a law depends on the superficial will of the filmed person, the law run into barriers in judging whether people with developmental disabilities fell victim to technology-facilitated sexual violence. If consent was obtained by a fraudulent scheme or power, it is reasonable to interpret it as being filmed against will, but if a fraudulent power was used to get consent, there arises a problem that applicability of the law becomes ambiguous depending on the case. The crime of taking pornography using a fraudulent scheme or power subject to the Act on the Punishment of Arrangement of Commercial Sex Acts, etc. (hereinafter called the “Sex Trafficking Punishment Act”) can be applied to sexual image-taking using a fraudulent plan or power. However, as the crime of taking pornography has narrow requisite elements and is located in the Act on the Punishment of Sex Trafficking, it is improper in the legal system and does not tend to be applied well though it has a higher statutory cap on punishment than creating sexual images/videos by using camera, etc.

 

C. Imbalance between Crime and Punishment

Once illegal sexual images/videos are distributed online, they can be duplicated and spread infinitely because of the characteristics of online space and digital files. Then they are altered and processed in a different form to be produced and redistributed as secondary content and to be sexually consumed by a multitude. Even if support is provided for their deletion, there is no assurance of complete deletion online or of no further occurrence of victimization. In this regard, the illegality of non-consensual distribution is higher than non-consensual filming. Nevertheless, the current laws reveal imbalance between crime and punishment because they prescribe the same statutory cap on punishment for image-taking and distributing crimes. It is necessary to review an aggravated punishment clause on image-taking for profit. Not just distributing, providing, publicly exhibiting, or screening the sexual images/videos but also the concept itself can make distinction between the purpose of profit-making and nonprofit-making as even sales and lease already include the expectation of some reciprocity.

 

D. Limitations of Response to Victimization by

Anxieties

Though there is an increase in the victimization by anxieties about distribution of digital images, it is difficult to respond to such victimization. If the other person possesses sexual images/videos that are not taken against will, the victim cannot stop the other person’s possessing the depicted person’s images/videos even if they are the victim’s sexual images/videos. As such, their right to self-determination is infringed upon and the victimization by anxieties persists.

 

 

E. Limitations of Applying the Crime of Threat or Coercion by Using Sexual Images/Videos

 

If a person threatens or coerces another person by using deep fake videos as prescribed in Article 14 (2) of the Act on the Punishment of Sexual Crimes, which are edited, manipulated, or processed sexual images/videos that do not fall under Article 14 of the same law, it seems difficult to apply the crime of threat and coercion by using images/videos (Article 14 (3)) to this case. In other words, application of the crime of threat and coercion by using the images/videos, etc. is excluded from cases of doing very similar behaviors to this case though the offender has not used sexual images/videos, such as where a person threatens or coerces to produce and distribute sexual content by using the victim’s personal information, and where a person threatens or coerces to produce and distribute fake images/videos even if the person has not yet made them.

 

F. Failure to Reveal the Attribute of Online Sexual Harassment as Sexual Violence

 

Online sexual harassment, consisting of texts, videos, images, or content with many types combined, cannot be fully explained of its ills as gender-based violence. Unless it falls under illegal sexual images/videos, edited materials, and children or juvenile sexual exploitation materials, crimes of libel, contempt, porno distribution, etc. apply to online sexual harassment. A particular expression can become sexual harassment because sexual discriminative social norms are at work. However, in the crime of obscenity by using communications media and the porno distribution crime, obscenity and violation of social morality are main grounds for their punishment. Also, crimes of libel and contempt depend on already-gendered social evaluation for their interpretation to protect external honor. Therefore, existing laws have limitations of being unable to reveal the attribute of online sexual harassment as sexual violence.

 

G. Lack of Regulations on the Misuse of Personal Information

 

There were many cases among the distributed illegal sexual images/videos where disclosure of personal information ensured. The Personal Information Protection Act, which regulates the protection of personal identification information, cannot handle the problem of using disclosed personal information by other persons than the personal information processor. Therefore, it is necessary to discuss cases where other persons use personal information for technology-facilitated sexual violence by using the information that is available online.

 

H. Impossibility of Punishing Crimes including Illegal Image-Taking, etc. of Sex-Trafficking Situation

Illegal image-taking in a sex-trafficking situation is characterized as being ‘safer’ than illegal image-taking in a situation outside of sex trade when it comes to the possibility of punishment. In a society where there exists a stigma on women’s sexual behavior and sexual trade or prostitution, both the possibility of disseminating the sexual images/videos taken of them and disclosure of their sex trade history can be crucial threats to women. As such, women whose sexual images/videos are taken face both the risk of getting punished for prostitution and the risk of getting their sexual images/videos disseminated. By simultaneously buying sex and taking illegal sexual images/videos from the situation, sex buyers can seek their safety, secure a means of controlling the other person, and pursue tangible and intangible profits through the distribution of the sexual images/videos.

 

I. Narrow Definition of Online Stalking and Limitations of Response

 

Online stalking is limited to any act that causes anxiety or fear by “having information reach the other person” in the Act on the Promotion of Information and Communications Network Utilization and Information Protection (hereinafter called the “Information and Communications Network Act”) and the Act Concerning the Punishment, etc. of Stalking Crime (hereinafter called the “Stalking Punishment Act”) as well. However, even if it is not a means of having information directly reach the other person, there can emerge a new type of stalking methods to watch and control the other person following very diverse technological changes. As a result of defining stalking as a behavior of having information “reach” the other person online, the existing laws are composed of taking restriction measures to prevent recurrence of stalking and to protect victims or of limiting any act of approaching the other person by using telecommunications. Online stalking by using other means than approaching to the other person can be either punished or unpunished because it is divided into individual behaviors depending on whether its content constitutes other crimes or not. As such, there will be no other means that can control the continued stalking.

 

J. Limitations of Punishing the So-Called “Online Grooming”

“Online grooming” is introduced as an example of legislation in Article 15 (2) (Conversation for the Purpose of Children and Juvenile Sex-Trafficking) of the Juvenile Sex Protection Act. However, this crime is limited to any behavior that has a sexual meaning in itself among grooming behaviors. Grooming is a preparatory phase of sexual exploitation of children to get monetary or non-monetary gains by sexually using children for adultery, molestation, production of child and youth sexual exploitation materials, and soliciting sex. It also refers to a series of process that the offender builds trust with children to make them unaware of sexual exploitation or endure sexual exploitation so as to, at least, prevent their active resistance to or disclosure of their victimization. As the current laws are restricted to any behavior closer to sexual exploitation per se, they fall far short of revealing the context of grooming as an overall process. As they punish online behavior only, these laws cannot encompass a type of grooming that occurs offline or that initially begins online but aggravates offline. Also, as they prescribe cases where the other person is a child or youth, the laws have limitations in regulating grooming of adults with developmental disabilities who are vulnerable to sexual-purpose grooming.

 

4. Limitations of Handling Technology-Facilitated

Sexual Violence in the Investigation and Trial Process

 

A. Insufficient Reflection of Characteristics of Digital Content in Investigation of Illegal Sexual Images/Videos, etc.

Once generated, digital content is sustainable without alteration or extinction, and even if deleted, it can be restored to some degree. Even if duplicated, digital content has no change in its quality, and it can be duplicated and kept in various storage media. As such, the possibility of file restoration and various methods of storage should be considered in the investigation process, judgment, and disposal of illegal sexual images/videos, etc. after the ruling. In spite of this, several counseling cases showed that confiscation or search was not sufficiently made or that it was difficult to guarantee a complete destruction of the illegal sexual images/videos. These problems arose from the difficulty of issuing a warrant, the staff’s lack of knowledge, and the absence of standards for handling illegal images/videos.

 

B. Disclosure Risk of Victim Information and Sexual Images/Videos

In the process of dealing with technology-facilitated sexual violence accidents and compensating for damages, the victim’s information is likely to be released or provided for the perpetrator. As such, it is necessary to prepare ways to block such possibilities of disclosing the victim’s personal information and sexual images/videos in the ruling process or in the written judgment. There are often problematic cases in technology-facilitated sexual violence where the already-existing protection system for sexual violence victims does not work properly.

 

5. Legal Limitations of Supporting Technology-Facilitated Sexual Violence Victims The legal ground for supporting technology-facilitated sexual violence victims was prepared not in a way that integrates them in the support for sexual violence victims, but in a form that separates them from the existing support system for sexual violence victims. A new legal ground was recently established for the State to conduct a new type of support called “support for deleting victimized images/videos.” In this process, supporting technology-facilitated sexual violence victims was split up from the support system for sexual violence victims, thereby weakening the one-stop support for victims that had long been implemented. Support for deletion is provided for only part of technology-facilitated sexual violence. This made it difficult to provide the support comprehensively with various types of already-implemented support for sexual violence victims. Content related to the support for technology-facilitated sexual violence victims is not reflected in the job descriptions of the support centers for sexual violence victims or in the counselor training courses. Not only this, any legal basis is not prepared for establishing support centers for victims of digital sexual crimes or for their job responsibilities, though the support centers have provided support largely for technology-facilitated sexual violence victims since 2018.

The scope of support for deletion is limited to illegal sexual images/videos and edited materials, etc. and child and youth sexual exploitation materials. As such, deletion or blocking of digital data collected from various types of online activities cannot be included in the scope of support. Some examples for these activities include online activity under the victim’s feigned name, operation of online accounts in the assumed name of the victim or people around the victim, distribution of data in the form of combining the victim’s personal information and sexual meaning if not illegal images/videos or child and youth sexual exploitation materials, and dissemination of sexual content other than images/videos taken. In this case, the victim should directly report to information and communications service provider, and request for the deletion of the data. However, it is difficult for the victim as an individual to respond to the situation when the service provider does not take proper measures or asks the victim to present a legal ground or evidence for deleting or blocking the data. There may also arise a situation in which the victim should provide personal information additionally for the private enterprise in order to delete the data. The provision that requires identification of the victim to receive the State’s support for deletion may become an obstacle too.

Various laws can be applied to technology-facilitated sexual violence depending on the victim’s age, the possibility of specifying the victim in the sexual images/videos, the victim’s will to give testimony, legal interpretation by the investigation agency or the judicial institution, or even the investigation method. Due to this, the possibility of supporting the victim is determined depending on which law is applied and whether the victim is included in the category of sexual violence victims.

This is related to the fact that technology-facilitated sexual violence is not conceptualized as sexual violence but addressed as a “pornography” or a general issue of defamation. When the meaning of the violence as sexual violence disappears through the selection of penal provisions, so does the necessity for protecting and supporting gender violence victims disappear in effect.

 

Ⅳ. Overseas Cases and Implications

 

As the evils and seriousness of technology-facilitated sexual violence are widely recognized, penal provisions have expanded the requisite elements of such offences and criminality of the violence in foreign countries as well as in Korea. Regarding the non-consensual distribution, other countries have sought to expand and introduce the requisite elements of the offences and the limitation period in response to the severity of damages from unlimited redistribution and difficulties of permanent deletion according to the nature of network that is connected and proliferating all the time in real time. Concerning online grooming as well, they have amended the penal provisions in the direction of punishing sexual communication itself with a child as they began to recognize the seriousness of sexual conversations exchanged online without directly contacting the child.

They have also prepared a general system to protect victims, including measures for preventing the occurrence and spread of damages. In Canada, the peace bond has already existed separately from handling criminal cases. Australia too has already had a civil sanction system. The two countries have introduced and used these systems even more actively to technology-facilitated sexual violence like the crime of non-consensual distribution. It is notable that they have expanded the authority of their respective dedicated organization to make prompt response, including deletion, by granting strong power to collect identification information and other data.

 

As can be seen from the examples of Canada and the UK, other countries have introduced a behavior restriction system with a new content such as restrictions on using the Internet in accordance to the environment and characteristics of technology-facilitated sexual violence. In other words, they have introduced a protection device with a new content, such as the order to restrict the use of the Internet and other digital networks conditionally or unreservedly between posteriori punishment and non-punishment. On the other hand, Korea’s probation system, its terms of compliance, and content of emergency measures still consist mostly of behaviors of physical contact, including access prohibition, without responding to technology-facilitated violence. Therefore, it is necessary to consider introducing the behavior restriction system that directly prescribes the use of network and its devices when constituting Korea’s probation system and the content of emergency measures. Overseas cases show that they make active use of a system to preserve digital evidence for investigation or investigation using false identities. Though they apply the warrant requirement to seizure and search, they respond to non-consensual distribution and some other cases by introducing a special case of simplifying the requirement. In particular, Canada has prepared an explicit provision that allows the investigation agency to collect evidence and materials with revealing their identity and to disguise their identify for investigation prior to the occurrence of the victimization. The provision applies not only to when there arises a preservation demand for electronic evidence but also to online grooming.

 

Overseas cases reflect characteristics of technology-facilitated

sexual violence in the design of their legal systems that once

technology-facilitated sexual violence occurs, it is very difficult to

recover from the damage of the violence. Regarding non-consensual

distribution, Canada has legislated special cases concerning the peace

bond or the preservation of electronic evidence, thereby expanding

their application to a situation where there is a reasonable ground for

suspecting that damage will occur even before any act is done.

 

Ⅴ. Ways of Legislative Improvement in Response to Technology–Facilitated Sexual Violence

 

1. Secure Punishment of Technology-Facilitated Sexual Violence and Impose Responsibilities on Offenders

 

A. Improve Provisions on Crimes of Creating Sexual Images/Videos by Using Camera, etc. Manipulation and Distribution

 

Creating images/videos by using camera, etc. in Article 14 of the Sexual Violence Punishment Act, distribution, etc. of deep fake videos, etc. in Article 14(2), and threat and coercion by using sexual images/videos, etc. in Article 14(3) of the same law have in common “sexual stimulus or shame” as requisite elements of criminal offences. Seen from the purpose of protecting the victim’s privacy, moral right, and right to sexual self-determination, it is reasonable to judge the illegality of the above mentioned behaviors solely based on whether the offender attained a consent from the depicted person, not based on the obscenity of the content of the photos or such emotion as sexual humiliation. For this reason, the lack of consent from the depicted person should be the main requisite element of the offences, and “sexual stimulus or shame” should be revised to a neutral term like ‘sexual.’

 

The way of listing all criminal acts and aspects one by one needs to be improved when stipulating the crimes of distributing illegal photos, etc. in the Sexual Violence Punishment Act and the Juvenile Sex Protection Act. The concepts of the listed behaviors of distribution should be revised to be open and comprehensive. The legal provisions should be improved in such a way to encompass the act of using photos, etc. afterwards for sexual purpose going beyond the scope of consent, even though the person gave consent to image-taking and distribution at the time when the photos were taken but did not consent to their distribution for the sexual purpose. Though non-consensual image-taking and non-consensual distribution are prescribed with the same statutory punishment, it is difficult to see their illegality and degree of damage as being the same. This is because one single distribution online can be disseminated indefinitely and it is difficult to terminate the victimization time-wise. Because taking photos of a person against the person’s will is included in the concept of molestation, legal punishment should be increased to the level of indecent assault and the crime of distribution should be punished with a higher penalty than the crime of image-taking.

 

Regarding the aggravated punishment of distribution for profit-making purpose, as long as the provision of listing the behaviors and aspects of distribution is maintained, it would be proper to amend the related clauses in the Sexual Violence Punishment Act to the way of prescribing the crimes in the Juvenile Sex Protection Act. If the behaviors and aspects of distribution are amended to be comprehensive, a separate provision should be enacted to additionally punish the cases where the offender distributes the photos, etc. for sexual purpose or gains from the distribution.

 

B. Review Improving Provisions on Crimes Related to Illegal Image-Taking by Using Fraudulent Plan or Power

 

Because using a fraudulent plan means an absence of valid consent, it would be reasonable to encompass in image-taking against will if the sexual images were taken under a consent obtained by using the other person’s full or partial misunderstanding, mistake, or ignorance regarding the image-taking and distribution. If the victim gave consent to image-taking and distribution due to misunderstanding, mistake, or ignorance mainly caused by the victim’s developmental disabilities, it would be improper to see this as a valid consent. However, further analysis is needed because there are many cases in the counseling cases and lower instance precedents that do not embrace the image-taking by using a fraudulent plan or power in creating sexual images/videos by using camera, etc. With relation to this issue, consideration may be given to the crime of taking pornographic films, etc. by using a fraudulent plan or power set out in the Sex Trafficking Punishment Act. By moving the location of the crime of image-taking by using a fraudulent plan or power to the Sexual Violence Punishment Act, it is necessary to make sure that the crime is included in the crimes of sexual violence, to ensure the victim would be smoothly protected and supported as a sexual violence victim, and to broaden the scope of image-taking. This is believed to be helpful in recognizing the absence of valid consent by judging the image-taking by using a fraudulent plan.

 

C. Improve the Crime of Threat or Coercion by Using Photos, etc.

 

Threat and/or coercion by using edited materials, etc. prescribed in Article 14 (2) should be added to the crime of threat and/or coercion by using photos, etc. in the Sexual Violence Punishment Act. Also, it should be clearly stated that the crime includes threat and/or coercion by pretending to possess the photos, etc. of Article 14 and the edited materials of Article 14 (2), or by intending to produce or obtain the photos or edited materials.

 

D. Establish a New Provision to Punish the Crime of Possessing Sexual Images/Videos against Will A third person’s possessing sexual images/videos of a person without the depicted person’s consent means violating the person’s sexual freedom. Therefore, it is necessary to establish a new provision to punish the “act of possessing sexual photos against the explicit consent of the depicted person” or the act of continuing to possess the person’s photos without justifiable reasons despite the person’s request for deletion.” When it is made clear that continued possession of the photos of a person goes against the depicted person’s will, taking active measures for deletion should become a standard norm.

 

E. Reveal the Attribute of Online Sexual Harassment as Sexual Violence

Obscene behaviors by using means of communications in Article 13 of the Sexual Violence Punishment Act should be amended to a crime of “sexual harassment by using means of communications.” It is also necessary to consider seeking ways of revising the law to punish a person who uses harassing expressions by making the other person a sexual object. Here, sexual harassment is a narrower concept than sexual insult that makes the other person feel sexually humiliated or disgusted by sexual speech and behavior. Sexual harassment is established when a person has an intention to harass the other person by making the other person a sexual object, not a human being.

 

F. Cope with Crimes of Technology-Facilitated Sexual Violence by Misusing Personal Information

It is necessary to prepare a revised bill for aggravated punishment when the offender produces and distributes sexual photos, etc. in a manner that can identify the depicted person, when the offender distributes sexual photos, etc. in a way that enables personal identification by combining personal information to the photos, etc., and when the offender distributes sexual photos, etc. against the will of the depicted person who can be identified by other person even if this other person has not produced them.

 

G. Add the Person Whose Sexual Images/Videos Are Illegally Taken in Sex-Trafficking Situation to the Category of Sex Trafficking Victims

Sex-trafficking women are exposed to illegal image-taking and other crimes on the ground of sex trade but cannot receive remedies for the harms. To resolve this problem, sex trafficking should be conceptualized as sexual exploitation and women involved in prostitution treated as non-criminals. As an alternative under the limitations of legal reality, it is necessary to consider ways of adding the following persons to the concept of “sex-trafficking victims” in the Sex-Trafficking Punishment Act: i) a person who becomes the partner of a sex buyer for the purpose of illegal sexual image-taking, ii) a person whose sexual images are illegally taken by using the sex-trafficking situation, and iii) a person whose deep fake videos, etc. are taken as prescribed in the crime of “distribution, etc. of fake videos, etc.”

 

In addition, to make it clear that sex-trafficking for the purpose of illegal image-taking, etc. and illegal image-taking in a sex-trafficking situation correspond to sexual exploitation, it is necessary to revise the laws to stipulate aggravated punishment of the following persons: I) a person who buys sex to commit the crime of creating sexual images/videos by using camera, etc. or of “distribution, etc. of deep fake videos, etc.” and ii) a person who committed the crime of making sexual images/videos by using camera, etc. or of “distribution, etc. of deep fake videos, etc.” by using a sex-trafficking situation. H. Broaden the Definition of Online Stalking and Measures against Offenders Technology-facilitated sexual violence may take place in a way of online stalking or accompany online stalking. Given this, it is necessary to include various types of online stalking in the Stalking Punishment Act as they are left out in the current law. In accordance to this, it is necessary to diversify measures for imposing restrictions on the offenders.

 

I. Expand the Scope of the So-Called “Grooming” Crime

 

As grooming does not occur online only, it is necessary to regulate sexual exploitation through grooming of not just children and youth but also adults with developmental disabilities. Instead of limiting the crime “conversation, etc. for the purpose of sexual exploitation” to behaviors of using information and communications network, the law should be amended to be able to regulate the following behaviors: i) approaching children and youth, and people with developmental disabilities for the purpose of sexual exploitation and ii) soliciting them to be subject to sexual exploitation.

 

J. Expand the Responsibilities of Offenders and Issue a Compensation Order

Though victims of distribution have to consume a lot of time and effort to delete the victimized photos, etc. more than anything else, there is almost no method to continually secure responsibilities from offenders who committed the crime of distribution. The State provides support for deletion of the illegal photos and monitoring the distribution situation, but its support has limitations. As such, victims pay private service providers the cost for monitoring the situation in many cases. Therefore, it is necessary for the State to issue an order to compensate at least for the deletion cost for a certain period, using the procedures of compensation order sentenced together with the criminal decision, if possible. Also, the crime of dissemination, etc. of deep fake videos, etc. and the crime of production and distribution, etc. of child and youth sexual exploitation materials should be included in the types of crimes to which compensation can be ordered.

 

K. Alleviate the Application of the Limitation Period

Regarding distribution of child and youth sexual exploitation materials or distribution, etc. of illegal photos, it is necessary to review whether application of the limitation period should be alleviated or excluded for the following reasons: i) behaviors of producing and distributing illegal photos cannot terminate their criminal impacts, ii) even if any act of offence is committed only once, its victimization can occur repeatedly and continuously, and iii) it is impossible to count from a certain date for the limitation period because it is difficult to clearly specify the point in time of distribution online. At least with regard to the act of distribution for the profit-making purpose, application of the limitation period should be excluded or the limitation period should be reckoned from the date when the victim became aware of the fact of distribution. Through such amendment, responsibilities should be secured from the offender for the repeated and continuous victimization. 2. Improve Investigation into Technology-Facilitate Sexual Violence and Reinforce Measures to Block the Spread of the Illegal Sexual Images/Videos

 

A. Make it Mandatory for the Investigation Agency to Check Whether Distributed and to Request Deletion and Blocking in the Investigation Process

At present, the victim in person checks whether illegal photos, etc. are distributed and requests support for deletion. However, it should be made mandatory for the investigation agency to preemptively check through the public DNA database whether they are distributed in cooperation with the support center for digital sexual crime victims using the data secured during the investigation process. If the photos, etc. are distributed, support for deletion should be provided. Even when the police request to information and communications service providers or bulletin managers and administrators for deletion and blocking, it is necessary to make it a principle to connect with other organization that can conduct related duties, including the support center for digital sexual crime victims, so that they can record data on the DNA database, additionally delete the photos, etc. and monitor the distribution situation. Also, child and youth sexual exploitation materials should be included in the scope that the investigation agency checks whether illegal photos, etc. are distributed and requests support for deletion and blocking

B. Seize and Search Online Repository and Other Data Storage Media except for Filming Devices

 

Due to the characteristics of digital content, illegal photos can be stored at the same time in several data storage media. Given this possibility, the scope of seizure and search should be determined. A legal basis should be prepared for seizure and search for data storage media linked to image-taking devices and information and communications network. While seizure and search are under way, legislative alternatives are required to block a third person’s access to the cloud system.

 

C. Make it Mandatory to Confiscate Data Storage Media

 

It is necessary to establish a new provision on the required confiscation of data storage media that have ever stored illegal photos, edited materials, child and youth sexual exploitation materials, etc. Article 48 (3) of the Criminal Act states that “when only a part of a document, books and drawings, special media records, such as electromagnetic records, etc., can be confiscated, that part shall be destroyed.” However, unless a file is “completely destroyed to be unrecoverable by any means,” the file cannot be seen as being destroyed. Therefore, the storage media that have ever stored illegal photos, etc. should be confiscated.

 

3. Strengthen Support for Technology-Facilitate Sexual Violence Victims

 

A. Improve Online and Offline Accessibilities to Victim Support

It is necessary to improve accessibility to counseling through the website of the support centers for technology-facilitated sexual violence victims, and to delete the provision that requires, in principle, the victim’s personal identification to apply for the deletion support. To restore the damage, it is also necessary to secure access to support centers nationwide because physical distance too is important for constant counseling, medical support, legal counsel, investigation and trial support, livelihood support, or housing support.

 

B. Improve the Support System for Technology-Facilitate Sexual Violence Victims and Conduct Professional Education for Supporters

It is important to strengthen professional skills to support technology-facilitated sexual violence victims. However, it is required at the same time to expand the competences and services of the overall support system for sexual violence victims rather than merely strengthening a “specialized area” of supporting technology-facilitated sexual violence victims. First, by adding support services for online victimization of technology-facilitated sexual violence to the service scope of counseling centers for sexual violence and sex-trafficking, supporting technology-facilitated sexual violence victims should be included in the support systems for sexual violence and sex-trafficking victims, thereby strengthening the competencies of supporting the victims. Second, it is necessary to prepare a legal basis for establishing and operating the support centers for digital sexual violence victims, to conduct professional education for supporters of technology-facilitated sexual violence victims, and to specify the roles of building and operating networks between the support centers for sexual violence victims and affiliated organizations related to supporting technology-facilitated sexual violence victims across the nation. Third, legislation is needed to lay a basis for conducting professional education to improve competencies of supporting technology-facilitated sexual violence victims.

 

C. Expand the Scope of Victim Support

The scope of the State’s support for deletion is limited. As such,

it is necessary for victims to receive support from the State

regarding the deletion of sexually harassing information online with

i) content of personal information and sexual insult combined and ii)

sexual post, etc. under the feigned name of the victim that do not

apply to illegal photos, edited materials, child and youth sexual

exploitation materials but are distributed on the information and

communications network to infringe on the victim’s personal

character.

 

D. Increase Recipients of Sexual Violence Victim Support

By amending the Act Concerning the Prevention of Sexual Violence and Protection, etc. of Victims (Sexual Violence Prevention Act, for short), a legal ground for supporting sexual violence victims should be prepared regardless of whether or not a “crime” is established. Also, the definition “sexual crime against children and youth” should be left in the Juvenile Sex Protection Act, but the definition “sexual violence crime against children and youth” deleted. However, the terms should be “sexual violence crime against children and youth” or “sexual exploitation of children and youth”, not “sexual crime against children and youth.” By doing so, it is made clear that behaviors of producing and distributing child and youth sexual exploitation materials, or sex-trafficking of children and youth are sexual exploitation of children and youth and sexual violence against them as well. At the same time, it is proper to unify the protective measures for sexual violence victims by including “sexual violence crime against children and youth” in the concept of “sexual violence crime” prescribed in the Sexual Violence Punishment Act.

 

Research areas: Gender Violence and Safety, Laws and Plans

Keywords: Technology-Facilitated Sexual Violence, Technology-Facilitated Gender-Based Violence, Digital Sexual Violence, Online Sexual Violence, Cyber Sexual Violence