This blog post analyzes whether South Korea’s Obscene Material Possession Bill for preventing child and youth sexual crimes is truly an effective countermeasure or a bill riddled with logical fallacies and contradictions.
In South Korea, issues surrounding child and youth sexual assault, including child rape cases, have emerged as major social concerns. A common thread in these cases is that the suspects habitually possessed and used child and youth pornography. Consequently, the Ministry of Gender Equality and Family enacted a new law regarding the possession of child and youth pornography effective September 16, 2012.
The purpose of this law is to preemptively identify potential child and youth sex offenders, impose legal sanctions, and thereby reduce the rate of child and youth sex crimes. Of course, this bill may help identify sex offenders as intended. However, it contains several problems and logical flaws. This article points out these issues and logical errors, discussing the need for legislative revision. First, we examine the bill’s problems.
The first problem is that the criteria for punishment are highly ambiguous and unjust. The bill explicitly targets media (films, videos, games, or images/videos transmitted via computers or communication media) that depict characters or expressions recognizable as children or adolescents engaging in sexual intercourse, simulated sexual intercourse, acts involving contact with or exposure of the whole or part of the body, acts causing sexual shame or disgust in the general public, masturbation, or other sexual acts. While this list appears to clearly define punishable acts, numerous exceptions exist in practice.
For example, the Japanese anime “Crayon Shin-chan” features scenes where the kindergarten-aged protagonist exposes parts of his body. However, because this scene is not socially perceived as obscene, it does not fall under this law’s penalties. Thus, exceptions often arise based on subjective social norms rather than objective criteria. In some cases, the standard becomes even more subjective than societal norms, relying on individual perception. Not all depictions of characters wearing items that could be perceived as school uniforms (which might suggest they are children or adolescents) are punishable; the key criterion is whether the character engaged in obscene acts. Even if a character wearing a school uniform performed an obscene act, they would not be subject to punishment if they were not perceived as a child or adolescent. This is a highly ambiguous standard.
The second problem is that the number of people actually punished is extremely small compared to the size of the population that meets the punishment criteria. It is estimated that the number of people subject to punishment under this bill could reach at least several million. However, the actual number of people punished is only in the tens of thousands. This raises suspicions that it is merely punishing a small sample to serve as a warning: “This law exists, so be careful.” For example, rumors circulate on certain portal sites suggesting that avoiding calls from specific numbers can prevent being punished as a sample. While this may be mere rumor, current circumstances lend some credibility to the claim.
The third problem is that this bill applies only to ‘possession of child and adolescent pornography’. Under this law, downloading child and adolescent pornography via various communication media or the internet and possessing it, even briefly, is punishable. However, even if one views such material on adult sites providing live streaming videos, this act does not fall under the punishable ‘possession’ and thus avoids legal sanctions. If the bill’s intent is followed, all media depicting individuals recognizable as children or adolescents engaging in obscene acts should be subject to punishment. However, punishing only the specific act of ‘possession’ is merely a half-hearted solution. Therefore, this constitutes the first logical flaw in this bill. We will now examine the logical flaws in this bill in detail.
The logical flaw stemming from the third issue mentioned above is the first logical flaw in this bill. The intent of this bill is to sanction media containing obscene acts by individuals recognizable as children or adolescents, to identify users, to root out potential sex offenders, and ultimately to reduce the rate of child and adolescent sex crimes. However, if punishment is limited solely to the act of ‘possessing’ obscene material, the intent of this bill can never be achieved. As mentioned earlier, this is because there is absolutely no sanction against the act of watching live obscene videos. Therefore, if only the ‘possession’ of obscene material is sanctioned, most users of obscene material will turn to live obscene videos, which are not subject to punishment. Consequently, it is highly likely that the rate of sex crimes will not decrease as intended by this bill.
The second logical flaw stems from the contradictory logic of the Ministry of Gender Equality and Family, which proposed this bill. In the past, the Ministry strongly denied the proposition that ‘women dressed provocatively are more likely to become targets of sex crimes’ and even held related protests. However, according to this bill, the logic that ‘viewing media containing obscene acts by individuals who could be perceived as children or adolescents leads to targeting individuals who could be perceived as children or adolescents in reality’ becomes valid. These two logics are inherently contradictory. The bill’s logic posits that exposure to obscene acts of a specific subject induces lust toward that subject in reality, while the logic previously rejected by the Ministry of Gender Equality and Family was that a specific subject is more likely to become a target of sexual crimes. This can only be seen as the Ministry of Gender Equality and Family, which proposed the bill, now acknowledging and rationalizing the broader logic it once rejected.
Due to the three problems and two logical fallacies mentioned above, along with other issues not discussed, this bill must be amended. The crucial question is the direction of this amendment. A decision must be made: should the current bill be supplemented, or should it be completely overhauled in a new direction? As previously examined, while the bill’s intent is commendable, its practical significance is faint. Even if amended to improve it, users of obscene materials will find alternative routes to access them. Should the law be strengthened to impose harsher penalties for such materials, there is a real possibility that individuals who previously satisfied their sexual desires through obscene content might turn to more serious crimes, such as sexual violence or prostitution, to fulfill those needs.
While researching laws sanctioning child and youth pornography for this article, it became clear that the law itself is founded on illogical premises. The proposition that anyone exposed to child and youth pornography is a potential sex offender is highly debatable. This bill is currently under review by the Constitutional Court. In my view, this controversial and problematic legislation is highly likely to be ruled unconstitutional.
A ‘law’ is a norm that members of society must uphold while living together. A good law is one that is reasonable, fair, and can be recognized and trusted by all. If laws are enacted as one-dimensional solutions to specific incidents, merely to quell public opinion—like the ‘Child and Youth Pornography Sanction Act’ discussed here—society’s members will increasingly lose trust in the law. To prevent this, the legislative process requires significant public interest and scrutiny. Rather than passively accepting laws because they are enacted by a separate institution, I believe we need to pay closer attention and monitor the lawmaking process more actively.
