Legal and Institutional Measures to Reform Participatory Trials for Sex Crime Cases

Abstract

The five-year experimental period of the “Citizen Participatory Trial System,” implemented in 2008, has come to an end. Currently, the people are waiting for the final form of the participatory trial system to be established. Based on the analysis of operation results of the participatory trial system, the Committee for Citizens’ Participation in the Judicial System under the Supreme Court of Korea has resolved an amendment direction of the Act on Citizen Participation in Criminal Trials (the “Act”) in March 2013. According to the direction, the Ministry of Justice worked out a partially revised bill of the Act. However, the aforementioned bill has been evaluated as being insufficient in properly reflecting public interest, i.e., the protection of sex crime victims. This study specifically focuses on sex crime cases among the actual operation data of the participatory trial system published by the Committee for Citizens’ Participation in the Judicial System, and reanalyzes the results of and issues with the implementation of participatory trials. Furthermore, through applying the contents of legislation and legislative arguments aimed at protecting sex crime victims in participatory sex crime trials, the authors suggest improvement measures that can not only prevent possible secondary victimization such as the disclosure of sex crime victims’ identities and the violation of their privacy in the participatory trial procedure, but also ease their psychological burdens. The authors propose three legal and institutional measures of improvement. First, in regard to the eligible cases for participatory trials and the decision for exclusion prescribed in the Act, the defendant’s request for a participatory trial and the sex crime victim’s right of objection to such a trial should be considered properly on equal footing to prevent secondary victimization, and consequently, the aforementioned victim’s right of objection should be further strengthened. Second, as for the argument that at least a certain number of female jurors should mandatorily take part in a participatory trial, the authors believe that a careful approach should be taken based on the analysis of the five-year operation results and performance, while recognizing the necessity to secure fairness in jury composition. Lastly, with respect to the matter of victims/witnesses and their interrogation in the participatory trial procedure for sex crimes, it is necessary to implement a legislative measure that can resolve the sex crime victims’ mental distress deriving from concerns about their identities being disclosed and their privacy being violated in front of jurors.