제 1 호 It’s Not Me, the Alcohol/Mental Illness Did It!
Kicker: OPINION (LAW)
It’s Not Me, the Alcohol/Mental Illness Did It!
About Mitigating Factors
by Sarah Chae, Editor
sarah3fran@gmail.com
People commit crimes. Criminals are then sentenced with a charge or jail. However, according to the circumstances of the crime, sometimes it might result in reduced charges or a lesser sentence. These circumstances are called mitigating factors. Admitting the offense, mental or physical illness, provocation, young age, lack of a prior criminal record, and showing remorse are some examples of the mitigating factors we know. Out of all these mitigating factors, the SM Herald has decided to take a deeper look at mental illness and alcohol.
The Criminal Law(Act) about Mental Disorders
Let’s take a quick look at the law below which makes mental illness and alcohol a mitigating factor. We can see Korea’s Criminal Act thinks of mental illness as a mitigating factor because those people who have it are unable to make discriminations or control their will. In other words, people who are not capable of distinguishing things or making decisions are seen as a person with mental disorders. Therefore, people who have drunk alcohol and have lost control of themselves were also seen as a mentally weak people. This is why both factors are mitigating factors according to the law.
The Department of Justice says that ‘being mentally disordered’ refers to a condition in which the mental/physical functions of cognition, intelligence, language, emotion, and behavior are disabled or impaired. Acknowledging this means admitting that a person who committed a crime because of their mental illness did it without self-indulgence or self-control. This means that if it were not for the disease they would not have committed the crime.
Criminal Act |
Article 10 (Persons with Mental Disorders) (1) The act of a person who, because of a mental disorder, is unable to make discriminations or to control one’s will, shall not be punished. (2) For the conduct of a person who, because of a mental disorder, is deficient in the abilities mentioned in the preceding paragraph, the punishment shall be mitigated. (3) The provisions of the preceding two paragraphs shall not apply to the act of one who, in anticipation of danger of a crime, has intentionally incurred one’s mental disorder. |
The Public Opinions Toward the Mental Disorder ‘Excuse’
We now know that according to the law, people who have mental disorders have to be protected because the crime they have committed is without their self indulgence. However, we know that this law has brought us to a state of outrage. The following incidents are the biggest issues related to the mitigating factors people now seem to think as excuses.
The ‘Jo Doo-soon incident’ has made, and still makes the public feel uneasy and outraged. In 2008, when Jo Doo-soon raped a child, he said he could not remember the incident because he was drunk. The court saw it as a mental disorder, (=a mitigating factor based on Article 10.2 of the Criminal Law) and he was sentenced to 12 years in prison. The‘8-year old Incheon kidnap/murder incident,’ ‘Kangnam station murder incident and the ‘Kim Sung-soo internet café murder incident’ are cases that have made the public see the criminals with mental illness seem as if they used the law as an excuse. People are not persuaded that being drunk or having a mental illness can be a mitigating factor. This is because victims have to think they were unlucky due to this reality, and it looks like criminals are not paying the price enough compared to the crime they have committed.
As you can see in the picture, more than 1 million citizens signed the government petition for the Kim Sung-soo internet café murder case, and more than 4,000 petitions were written for the opposition to Jo Doo-soon’s release from prison.
The public has not forgotten their outrage about these cases and you can see them through these numbers of signatures on the government petitions and the number of petitions that were written for these incidents.
What has been/will be done?
Let’s take another look at Article 10.3 of the Criminal Law. If Article 10.1 or 10.2 is used as an excuse, in other words, if the criminal intentionally incurred their mental disorder, the fact that they are mentally disordered does not apply as a mitigating factor. Other than that, after the Jo Doo-soon incident, later laws were enacted to prevent sexual crimes under the influence of alcohol from being thought of as mentally/physically disabled. The 2 laws below are the important laws that prevent sexual crimes (under the influence of alcohol) toward not only people, but especially children and youth.
Act on Special Cases Concerning the Punishment, Etc. of Sexual Crime |
Article 20 (Special Cases for Provisions of the Criminal Act concerning Reduction of Sentence) If a sexual crime (excluding a crime defined in Article 2(1) 1) is committed in the state of mental disorder induced by drinking or use of medication, it may be excluded from the application of Articles 10 (1) and (2) and 11 of the Criminal Act. |
Act on the Protection of Children and Youth Against Sex Offenses |
Article 19 (Special Cases concerning Provisions for Mitigation under the Criminal Act) Articles 10 (1) and (2) and 11 of the Criminal Act may not apply to any sexual assault against a child or juvenile committed in a state of physical and mental incapacity induced by alcohol or drug. |
It is questionable if the current solutions are enough. It is good that there are laws that stop alcohol from becoming mitigating factors for the sexual crimes. However, this could only be a short-term solution, and there does not seem to be a definite solution for the mental illness mitigating factor problem.
We need steady attention, improvement of our consciousness, and action to make the society move toward creating a stronger social safety gate or net for the ones who may become victims.
Public opinion no longer sees mental disorders as an excuse to commit a crime. However we must clear our minds. We can feel outraged but we should not let anger and revenge for individual criminals cloud our minds. Then, what can, and what should we do as individuals? As I said earlier, attention can help us to realize the need for more thorough crime prevention and social policy measures, to make policy changes and improvement in the system in a way that supports human rights. Let’s think of the moment when attention leads to deeper thought, and when this becomes a more specific demand. That is when we will have the power to change a single moment, into motion.
*Source:
http://elaw.klri.re.kr/eng_mobile/viewer.do?hseq=33019&type=part&key=16
http://www.moleg.go.kr/english/korLawEng?pstSeq=58526
https://elaw.klri.re.kr/eng_service/lawView.do?hseq=28627&lang=ENG
http://www.law.go.kr/lsInfoP.do?lsiSeq=138767#0000
http://www1.president.go.kr/petitions/answer?page=2
https://blog.naver.com/mojjustice/221402486998 Official blog of the Department of Justice
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