Last week a 61-year-old woman jumped from her fifth floor apartment to her death. Her act was, once again, the last desperate attempt by a crime victim in South Korea to obtain justice.
Her sad tale started when she checked into a hospital last year and was raped by a 27-year-old man who worked at the hospital. After she reported the rape to the police the young man failed a lie detector test and the case
proceeded to court. However, last month the court released the accused, reasoning that as the man had a house and a job there was no worry that he would flee or destroy evidence ― factors that clearly have no relevance to the determination of his guilt or to assessing the appropriate punishment. Faced with this outcome the woman resorted to suicide in an attempt to force the judge to change his decision.
Perhaps this older woman had heard of a similar case last year where a young woman killed herself after allegedly being insulted by the judge during the trial of her rapist. In the young woman’s suicide letter she expressed her frustration with the justice system and believed her only recourse was to bring public attention and shame on the judge by committing suicide. In response the judge, shamed by the public attention, increased the prison sentence of the convicted rapist.
But why does it take such an extreme action as suicide to force these judges to reconsider their decisions and why do these judges appear to lack any internal sense of morality guiding their decisions? Perhaps the answer lies in the shame-based system through which the norms of Korean society are enforced. Scholars have posited that a dichotomy exists between guilt-based cultures and shame-based cultures and that this cultural difference affects the internalization of morality. Shame-based cultures rely to a greater extent on external sanctions such as public humiliation or group rejection while internalized feelings of guilt and the need for expiation are nonexistent. Thus questions of morality in South Korean culture are answered by considering whether an action will cause the disapproval of an authority figure or whether it may result in the ostracism of the individual by the group.
Seen in this cultural light, these mishandled criminal cases followed by victim suicide reveal a fundamental issue facing the judiciary of South Korea; an issue of whether shame-based sanctions are ineffective at guiding judicial decision making. These judges are graduates from the top universities in South Korea and they have succeeded in passing exams where many others have failed. They are aware of their own abilities and intelligence and of the fact that they have very few peers in South Korean culture.
Unfortunately this awareness often morphs into an unwavering certainty that they are the only ones able to discern the true facts of the cases that come into their courtrooms. This inability to recognize that the average person is equally capable of discerning fact from fiction means that they often disregard the testimony of the victims of violent crime. There is no chance for the shame sanction to operate when there is no perceived authority figure or group from which to receive it. Thus all that is left for the victims is to commit suicide in an attempt to bring public condemnation upon these judges.
And, in addition to publicly shaming the judge, suicide also allows these victims to tap into the belief in spirits that pervades the South Korean norm enforcement system. Many here believe that the spirits of the dead watch the living and this belief operates as a restraint on the behavior of the living. The idea that your ancestors are observing you is a powerful reason not to behave in a shameful manner, even when one is alone at home. Thus the elderly woman wrote in her suicide note that she would be watching from heaven to make sure the judge in her case reconsidered his decision appropriately.
In the end the suicide tactic is often successful. Once a crime victim commits suicide these judges often alter their opinions even when they feel as though the public is simply unaware of the facts or unable to apply the requisite legal knowledge and skills. Unfortunately the success of this tactic may increase the number of frustrated crime victims resorting to suicide.
Therefore it behooves the judiciary of South Korea to move beyond the shame-based norms of their culture and to develop a separate set of legal ethics that will guide them in making rational and moral decisions. The continued failure to do so will inevitably lead to further public opprobrium when judges continue to release criminal offenders for reasons such as home ownership or having a successful career.
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.
