The lack of punishment for crimes committed by people with mental and physical disabilities can cause problems with social safety and equity, which can lead to increased discrimination and insecurity. Therefore, it is necessary to apply legal penalties to people with mental and physical disabilities to prevent recidivism and ensure the safety of society.
Do humans control and determine their own behavior? This question, or the question of free will, has been unanswered and debated since time immemorial. The question of whether or not to recognize free will is important in many areas of ethics, religion, and science, but it is especially important in the realm of law, where it is closely related to real life. In general, people believe that their behavior is the result of their own judgments and decisions, rather than some uncontrollable circumstance, and the current criminal law in South Korea also assumes that the average person has free will. This is evident in Article 10 of the Korean Penal Code, which deals with the mentally and physically disabled. Article 10(1) of the Korean Penal Code reads as follows
The acts of a person who is incapable of discerning things or making decisions due to a mental or physical disability shall not be punished.
The above criminal law does not punish people with mental disabilities because they are considered “incapable of making decisions,” meaning they do not have free will. On the other hand, it punishes people who are not mentally or physically disabled because they are considered to have free will. However, this criminal law is highly controversial. For example, in December of last year, a teenage student with a first-degree developmental disability threw a two-year-old baby 10 meters to his death. The case ended with the court acquitting the perpetrator, saying that he was mentally and physically disabled and lacked decision-making capacity. The perpetrator, a student, was not punished, nor was he sentenced to therapeutic supervision or an electronic bracelet. The death of a small, young life ended with no punishment, despite the presence of the perpetrator, and many people were saddened by this, and a petition was created. Therefore, I believe that it is not reasonable to punish people with mental disabilities for the following reasons.
First, considering the different purposes of punishment, it is not right to acquit based on the presence or absence of free will alone. Let’s go back to the original question. Let’s assume that the argument that humans are “non-free-willed” creatures, acting simply by the chemistry of their environment and brain, and not by their own judgment, is correct. Then crimes, like sneezing, are uncontrollable and unavoidable, and no one can be held responsible for them. But does this mean that all punishment should be abolished? No, it doesn’t. If we didn’t punish everyone because there is no accountability, there would be a lot of social chaos. In other words, punishment has more than just the function of holding people accountable for harm. It also serves to reform the offender, isolate them from society to prevent them from reoffending, and deter others from committing crimes by serving as an example. These functions of punishment still apply even when humans do not have free will. For one thing, isolating the offender from society creates an environment that prevents the crime from happening. Furthermore, reforming the offender or warning others is also an environmental factor that influences the individual’s values or beliefs and changes their behavior. In other words, even if humans do not have free will, punishment is necessary for the purpose of preventing recidivism. Therefore, it is necessary to punish people with mental disabilities who do not have free will when they commit crimes to prevent further harm from occurring.
In response, those who advocate for the acquittal of the mentally disabled argue that “since they do not have free will, their crimes should not be punished because their actions were not taken with bad intentions or for personal benefit.” But think about the average person who intentionally breaks the law with bad intentions versus the average person who accidentally breaks the law with no bad intentions. Obviously, there is a difference between a crime committed with bad intentions and an accidental crime, and the punishment is different. However, it doesn’t change the fact that both crimes are punishable regardless of bad intent, so criminal behavior by the mentally or physically disabled should also be punished regardless of bad intent.
Second, the lack of punishment can lead to discrimination against people with disabilities and jeopardize their human rights. The function of the state is to maintain order by creating laws to protect individuals from harm and to ensure compensation if they are harmed. Under the law, everyone is equal, and this allows people to feel safe and trust each other without breaking the law. But what if there is someone who is not subject to these laws? Then others don’t trust them, feel unsafe, and avoid them. Of course, it’s not right to perceive all people who are not covered by the law as potential criminals and avoid them, but no one would want to approach them with the risk of irreparable harm. Furthermore, since we don’t even know if they have committed a crime because they haven’t been issued with an electronic bracelet, people view all mentally and physically disabled people with tinted glasses. In fact, in early November, more than 300 residents protested against the construction of a vocational training center for the developmentally disabled in Jaejeong-dong, Dongdaemun-gu, and construction was halted. Citing the aforementioned Sang Yoon-i incident as an example, they say that they are afraid of the uncontrollable behavior of people with developmental disabilities, and they are even more worried that the perpetrator of the incident was acquitted. This lack of punishment for crimes committed by people with mental disabilities leads many people to view the perpetrator as a “person with a mental disability” rather than as a person in his or her own right, out of fear that he or she could become a victim. This can lead to discrimination against people with mental disabilities, which can lead to fear and even hostility toward them.
Of course, it can be argued that people’s perceptions of people with mental and physical disabilities as potential criminals and their anxiety and avoidance of them is misplaced. Therefore, they say that to prevent discrimination, it is necessary to improve public perception rather than punishment. However, people’s fears are not unfounded. In fact, experts say that if left untreated, mental illness crimes are more likely to lead to don’t ask, don’t tell crimes, and according to the Supreme Public Prosecutor’s Office, the recidivism rate for mentally ill offenders is 65.9%, much higher than the 41% recidivism rate for the general population. If the recidivism rate is so high and they are not punished, isolated from society, or reformed, the general public will feel uneasy and avoid them. In particular, these people often commit don’t ask, don’t tell crimes without any motive, which makes people even more afraid that they could be victimized at any time, anywhere. These unpunished crimes have a high likelihood of recurrence, so it’s no wonder that people fear and avoid them.
For both of the above reasons, punishing the mentally and physically disabled is a necessary measure, both for their sake and for the sake of other members of the public. If they are punished in accordance with the recidivism prevention purpose of punishment, which is to reform and isolate them from society, the anxiety of the general public will be relieved, and the number of people who avoid or discriminate against them will naturally decrease. Therefore, in the current situation where the crime rate of people with mental disabilities is increasing, Article 10(1) of the Criminal Law should be abolished and people with mental disabilities should be punished to create a more equal and safer society.
