The Korea Herald


Tried, punished and yet banned from cursing and drinking?

A closer look at some peculiar consequences of a conviction

By Yoon Min-sik

Published : Aug. 27, 2022 - 16:00

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In May, a ruling by a Jeju court made headlines when it ordered the accused -- found guilty of threatening his subordinate -- not to curse and mistreat the victim, in addition to the suspended prison term he received. The man, a high-ranking official at a bus company, had been at odds with the plaintiff after the latter had joined the labor union and filed charges against him for assault.

While judges hand out punishments in accordance with the law, there is a clause that allows them, or the probation committee, to set an added guideline for the guilty. This may range from an order not to curse in public, step out of one’s house, or to forgo drinking. Convicts have to comply with the orders until the end of their probation period.

Article 19 of the Enforcement Degree of the Probation Act stipulates that certain acts can be monitored by a probation officer, if deemed necessary to prevent recidivism or helpful for improvement and self-reliance of the person subject to probation.

The system is comparable to collateral consequences of conviction, which refers to the additional sanctions, disqualifications of various benefits and rights of the convicted that entails a sentence.

Here’s a look at some of the more peculiar orders handed out by the court in recent years. 

This photo is not directly related to this article.(123rf) This photo is not directly related to this article.(123rf)
Go on the wagon or behind bars

Last year, a Suwon court in Gyeonggi Province sentenced a convicted rapist to eight months in prison, after he was found to have violated the special observation order of drinking beyond a blood alcohol level of 0.03 percent. The BAC level of 0.03 percent is the legal threshold for drunk driving.

The man, in his 50s, was on probation after serving three years in prison for raping and assaulting a woman.

Despite the order, the convict got himself drunk twice with his BAC levels reaching 0.119 percent and 0.07 percent, respectively. He was also indicted on the charge of cursing at his probation officer, who visited his home when he left his ankle monitor off.

“Considering that (the convict’s) 10-year mandated period to wear the anklet will be over soon, and that he had repeatedly refused to comply with the instructions of his probation officer, there is considerable concern of a repeat crime,” the court said in its ruling.

While it is unclear whether booze was a factor in the sex offender’s initial crime, alcohol is of particular significance in crime and punishment in South Korea.

The Criminal Code stipulates that the punishment for a person who is deficient in making a decision or controlling one’s will can be mitigated. While not specified in the law, this conventionally includes not just mental disorders, but also being under the influence of drugs or alcohol.

An application of this clause was the 2008 case of Cho Doo-soon who raped and severely injured an 8-year-old girl. While the court said the crime should be punished with a life sentence, it was reduced to 12 years on the grounds that Cho had been drunk at the time of the attack.

There is no nighttime walks for old Cho

Cho walked free from prison upon completing his jail time in 2020, although it was not without conditions.

Cho, who turns 70 in October, is subject to a string of special observation orders during the seven years he is mandated to wear the ankle monitoring device. In addition to the standard ban from education facilities and a restraining order banning him from coming within 200 meters of the victim, he is not allowed to drink, or leave his home from 9 p.m. to 6 a.m. the next day.

The special orders were requested by the prosecutors in concern of a repeat offense, but it could serve an additional purpose of protecting Cho from hate crimes targeting him.

Last year, a self-appointed vigilante broke into his home and assaulted him with a blunt weapon. The assailant was sentenced to 15 months in prison.

(Graphic by Park Ji-young) (Graphic by Park Ji-young)
Special order and human rights

As the nature of the special observation order is to restrict actions of the convicted, it carries a controversy about violation of human rights.

In 1997, members of leftist student group South Korean Federation of University Students Councils responsible for a massive illegal protest at Yonsei University the previous year were sentenced to suspended prison terms and community service, along with an order banning them from participating in politically charged demonstrations in the future or joint student councils.

This sparked dispute as the Lawyers for a Democratic Society, better known as Minbyun, argued that the order infringed upon the constitutional right of assembly and association.

“The student council or protest activities is the (citizen’s) freedom of assembly and association, and are not illegal themselves. Engaging in such activities should not be dictated by the law,” the group said.

The Seoul High Court, which issued the special order, said it was merely to encourage students to focus on their studies. The defendants appealed the verdict, but their challenge was shot down later in the year by the Supreme Court.

As stated by the law, the special observation order is essentially to aid the convict’s reformation process to prevent further crimes, not for punishment. Last year, the Supreme Court ruled against a lower court ruling that ordered the defendant to reverse the damages that he had caused while developing a restricted area without a permit.

“The special observation order is stipulated (by law) to be for security measures and for improvement and self-reliance of the person subject to probation, and not for punitive purposes,” the court stated, adding that the aforementioned measure excessively and unjustly infringes upon the defendant’s freedom.