As the sentencing and treatment of sex offenders continues to be debated in society, it is necessary to consider how the punishment of sex crimes can realize social justice. In this article, we will analyze the way sex crimes are punished from the perspective of three views of justice: happiness maximization, free marketism, and moral and political philosophy, and explore what true justice is that our society should realize.
Recently, heinous crimes have been on the rise in Korea. Not only sex crimes against adult women, but also sex crimes against infants and adolescents are becoming more frequent, and related cases are frequently reported in the news. As a result, the sentencing of sex offenders and the treatment of sex offenders after they have served their sentences has become controversial. In the case of Oh Won-chun, who brutally murdered a woman in her 20s, the court commuted his death sentence to life imprisonment and raised the possibility of incarcerating him in a prison for foreigners only, leading to calls for justice. Despite this growing desire for justice in our society, few people can provide a clear answer to the question, “What is justice?” Before discussing the treatment of sex offenders, it is important to understand what justice is and how sex crimes are currently punished in our country.
Michael Sandel’s What is Justice presents three ways to understand justice academically. These ways are happiness maximization, free marketism, and moral political philosophy.
First, happiness maximization holds that justice is what maximizes the happiness of the individual and society, meaning that any choice and its consequences are considered just when they maximize the happiness of society and the individual. This is based on utilitarian ideas and is predicated on the premise that outcomes can be reduced to a single measure of happiness. However, this approach is likely to lead to a number of moral dilemmas. For example, in a situation where the sacrifice of one person can save five people, a utilitarian approach might determine that it is beneficial to sacrifice one person. This implies the extreme conclusion that killing one person to save five can be justified, and most people find this decision morally unacceptable. Utilitarians see this moral objection as an emotional flaw in the individual practicing it, not a flaw in utilitarianism. Also, the concept of happiness itself is relative, not absolute, so using it as a single standard can be problematic.
Second, free-market economics places the primary value of justice on freedom and seeks to understand justice through freedom. It sees justice as honoring voluntary agreements and choices between adults, but this approach also presents a dilemma. If justice is the voluntary agreement of all adults, then people can choose to trade parts or all of their bodies by choice. For example, it logically follows that a person could hire someone to do his or her military service for money. However, this is a coerced choice for survival, and therefore hardly “voluntary.” The question is whether, in reality, “completely voluntary choices” can exist.
Third, the moral political philosophy approach views justice as closely tied to virtue and the good life. This approach eventually leads to codifying virtue and the good life in law, which is difficult to accept in a liberal democracy. It also has the limitation that it is almost impossible to achieve social consensus if the standards of virtue and the good life are codified in law.
In our country, the ultimate goal of punishing sex offenders is to prevent reoffense and rehabilitate offenders. While most countries share these goals, the severity of punishment varies greatly from country to country. In South Korea, sentences for sex offenders are lighter than in other countries, with a statutory maximum sentence of 30 years, but most offenders actually serve around 10 years. In the U.S., child sex offenses can result in sentences ranging from 25 years to life in prison, with mandatory background checks and chemical castration, although this varies by state. Switzerland adopted a law by referendum to permanently isolate dangerous sex offenders, and China has an unconditional death penalty for sexually assaulting children under the age of 14. The only country with lighter sentences than ours is Japan, where the statutory sentence is 10 years, but actual verdicts tend to be considerably heavier.
So how should sex crimes be punished from a justice perspective? According to the happiness maximization approach, punishing sex offenders increases the happiness of society as a whole, including the victims and their families, while causing suffering to the offender and their families. Therefore, imposing a sentence that maximizes social happiness is considered justice. Considering that the recidivism rate for sex offenses in Korea is around 45%, sanctions that include publicizing the offender’s identity, chemical castration, or social isolation, such as in foreign countries, may be considered a better option than allowing the offender to return to society at all.
From a free-market perspective, sex offense punishment is subject to the consensus of society’s members, which means that members of society decide on the appropriate punishment assuming they know they are a sex offender. Under this assumption, it’s likely that most people would choose to avoid extreme punishments in favor of longer sentences, given the likelihood of becoming a sex offender. However, this approach has the disadvantage that it is nearly impossible to objectively research. As an alternative, we could examine the appropriate punishment levels for sex offenders and nonoffenders and come up with an average, but this is not strictly a definition derived from free-market economics.
If we derive the definition from a moral and political philosophical perspective, then the punishment of sex crimes is about setting standards of morality and good living in our society. Sexual offenses are morally unacceptable, but given our society’s moral system that values tolerance, rehabilitation of sex offenders may be prioritized. Early release and full reintegration into society may be considered justice for those who are unlikely to reoffend, based on the offender’s mental evaluation while serving their sentence. On the other hand, if the overall moral climate of our society is one of severe punishment for crime and prevention of recidivism, then severe sentences and restrictions on reintegration into society would be justice.
These three views of justice differ from each other, but in all but one of them (happiness maximization), what matters is that each member of society establishes his or her own sense of justice, and through that, social consensus is built. If the primary goal of the law is to achieve social justice, then justice can change with careful social consensus. Currently, there are many controversial cases in Korean trials and sentences, which are due to the discrepancy between public sentiment and legal sentences. For true justice to be realized in our society, members need to carefully consider justice without being swayed by temporary emotions or public opinion, and the law needs to change to respect the social consensus of the times.
