Excessive alcohol consumption is an issue in many countries around the world. However, in South Korea, rape and other forms of sexual harassment are increasingly being connected to exceeded levels of alcohol consumption. The difference between South Korea and other countries? If the perpetrator’s side argues that they were of weak mind (feeble-minded) at the time of committing the act due to alcohol consumption (Sim Sin Mi Yak) , they can receive a lighter sentence (Joo Chi Gam Hyung). This is not a medical argument and it’s mostly left up to the judge’s discretion to make the call.

2008 Na-yeong case

These legal rules are best illustrated through the 2008 Na-yeong case, which remains a gripping story to this day. In 2008, an 8-year old girl identified only as Na-yeong (not her real name), was brutally raped and left for dead by a 57-year old male. The attack left her not only mentally traumatized but physically handicapped due to the severe injuries she suffered. Despite the case being closed, her family (and many South Koreans) believe justice was not truly served. Even though he almost killed a child, the perpetrator, Cho Doo Soon, was sentenced to only 12 years in prison.

His sentence was reduced because his lawyers used his drunkenness at the time of the incident as a reason to prove he was not fully in control of what he was doing. Article 10 (2) of the Criminal Code–also known as Sim Sin Mi Yak (심신미약)– prescribes that “For the conduct of a person who, because of mental disorder, is deficient in the abilities mentioned in the preceding paragraph, the punishment shall be mitigated.” The abilities referred to are making discriminations and controlling one’s own will (Article 10 (1)).

Joo Chi Gam Hyung (주취감형) assumes that substance abuse impairs a person’s mental state. Because Sim Sin Mi Yak argues that the person’s impairment must be weighed in sentencing, a person who was drunk enough at the time of the crime to become mentally impaired (mentally weak) must receive a lighter sentence. Criminal law follows the principle of stewardship in imposing penalties. Meaning a person must be responsible for a crime in order to impose a penalty and determine the sentence. The main issue is thus not being drunk but being in a mentally weak state caused by the alcohol which makes one’s responsibility for the crime questionable.

This rule was key in having Cho’s sentence reduced. His time is almost up and he will be released next year, in 2020. Over 600,000 people signed a petition on the Cheongwadae (Blue House) website in 2017 opposing the release of Cho, but the government denied the appeal. Another petition calling for the abolition of the Sim Sin Mi Yak principle was also submitted in the same year. In 2018, over 200,000 people signed another petition–submitted by the parents of a girl who was killed by her drunk boyfriend– against the use of the Sim Sin Mi Yak defense to decrease sentences. The Blue House responded by pointing to a decrease in the use of the Sim Sin Mi Yak defense in criminal cases and revised certain laws in order to make it more difficult for defendants to use alcohol intoxication as an argument for sentence reductions. The Blue House, however, also added in another response that getting rid of the Joo Chi Gam Hyung custom from the legal realm altogether would cause too much confusion for the system, given the importance of the principle of responsibility in determining innocence and guilt.

Amendments

In June 2013, the National Assembly amended the Sexual Violence Punishment Act in which Article 20 rules that Article 10 (1, 2) and Article 11 of the Criminal Code are non-applicable in the case of mental weakness caused by alcohol or drugs. Moreover, in November 2018, the Kim Seong Su Act (김성수법) was passed which amends Article 10 from stating that a feeble-minded person’s sentence “will be reduced” to “can be reduced”. The Sim Sin Mi Yak defense can thus still be used but will not necessarily result in an automatically reduced sentence. In the same month, the Yoon Chang Ho Act (윤창호법) was also passed which imposes stricter punishments for drunk driving.

Similar cases

Despite additional legislation, the judgment of ‘drunkenness’ has continued at the discretion of the court. Several perpetuators of sexual crimes continue to receive reduced sentences due to the Sim Sin Mi Yak defense.

November 2014: A man in Busan was given a reduced sentence of one year in prison for raping his lover while drunk. As with the following examples, the Sim Sin Mi Yak defense was used here.

October 2016: A man was sentenced to one year in prison and two years probation at the Gwangju District Court for attempted rape while drunk at a friend’s house.

June 2017: A man was sentenced to three years imprisonment in Daegu for assaulting a school girl while she was returning home from school in an apartment in Dalseo-gu, Daegu in January 2017.

July 2019: Actor Kang Ji-hwan (real name Cho Tae-gyu) was accused of sexual assault after drinking alcohol with two female staff at his home in Gwangju, Gyeonggi-do. He claims he doesn’t remember what happened due to his drunk state. His defense is arguing the Sim Sin Mi Yak rule in the hope of reducing his sentence.

October 2019: A 26 year-old male received probation instead of prison time after sexually assaulting a college student at a dorm at Pusan National University. His defense argued he was drunk at the time of the incident (and thus of weak mind) and was able to get his sentence reduced from 3 years prison to 4 years probation.



Still more to be done

Despite government efforts to impose stricter conditions against the use of the Sim Sin Mi Yak defense, it’s still being used today, particularly in sexual assault cases. Only Japan has similar laws related to reducing sentences based on drunkenness; countries like the US, UK, and Germany, for example, don’t have such provisions in their respective penal codes. As recently as July, another petition was submitted to the Blue House calling for stricter punishments under the Sim Sin Mi Yak rule. As long as perpetrators can continue using alcohol intoxication as a shield that grants them lighter sentences, justice will not be fairly served in the eyes of victims, families, and South Korean citizens.