The fault lines in Korea's domestic violence laws

The Republic of Korea has arguably one of the most progressive domestic and family law policies in Asia. Since 1991, the women’s movement has driven the recognition of domestic violent crimes as distinct from general assault offences. 

This led to the enactment of two specific laws in 1998: The Act on Special Cases Concerning the Punishment of Crimes of Domestic Violence (known as the Punishment Act) and the Act on the Prevention of Domestic Violence and Protection of Victims (known as the Protection Act). 

Criminalising domestic violence provides legal protection to victims and contributes to raising social awareness about domestic violence. It enables law enforcement to intervene in violent situations and provides avenues for support for victim-survivors as well as rehabilitation for perpetrators. 

In 2006, domestic violence prevention education was introduced into primary, secondary, and high schools, and in 2014, it was expanded to include the members of public institutions as part of compulsory education. 

Nevertheless, a 2021 study by the Korean government found that one in three women in Korea experienced domestic violence. Despite multiple reports to police, victims continue to experience violence due to the lack of effective restraining orders and separation measures. These circumstances point to shortcomings in the current legal framework, prompting many researchers and practitioners to advocate for further legal reforms. Here we outline four areas within the Acts that require urgent redress. 

Healthy family ideology 

The Article 1 under Punishment Act indicates that the main aim of the Act is to restore peace and stability to families destroyed by domestic violence, while also promoting a healthy family environment. However, this focus on preserving family harmony over the safety and well-being of victims inadvertently enables the continuation of abuse and exploitation within domestic settings. 

The mandate of the Act influences how domestic violence advocacy programs operate. For example, such programs are designed to facilitate family reconciliation, but they potentially persuade victim-survivors to seek to understand the motives of perpetrators and inadvertently encourage them to excuse such behaviour. Without law reform, the advocacy and support systems for domestic violence may be limited, potentially condoning violent behaviour by perpetrators and compromising the rights and safety of victim-survivors. 

The narrow definition of family 

The Act is based on marital and de facto relationships and only applies to those who are in heterosexual relationships, which neglects the experiences of many individuals experiencing violence. 

Intimate relationship violence can occur outside marriage and co-habitation, as seen from a spate of recent boyfriend crimes. It is common for young women in their 20s to anticipate the need, and plan for, ‘safe breakups’. Instead of expanding the current domestic violence law, a law related to dating violence has been proposed by several members of the National Assembly, but it is currently pending in parliament and has not yet been passed. These new proposals are an important step towards addressing violence against women. However, they need to be inclusive enough to also cover those who are in same-sex relationships. 

The absence of anti-discrimination laws and the failure to recognise relationship types beyond the traditional family constitute a failure to reflect social realities and undermine principles of equality and human rights. Moreover, they serve as a pretext for lenient punishment of those who perpetrate violence against women. 

Leniency towards perpetrators 

When it comes to legal action against violent offenders, one of the biggest limitations is tied to Article 9-2 of the Punishment Act, which allows prosecutors the discretion to substitute counselling for criminal charges. The theory is that counselling lowers the reoffending rate. However, this overlooks the safety and protection of victims. 

Shortage of facilities, precarious living conditions, inadequate services and government funding cuts further threaten the safety of victim-survivors. At times, perpetrators who receive a disposition to undergo counselling may trivialise their behaviour or seek revenge on the victim-survivors. This results in victim-survivors being exposed to greater risk as a direct result of reporting domestic violence. Media reports indicate that more than 90 per cent of survivors do not seek help for reasons such as a lack of protection for survivors. 

The misuse of discretionary rights of victims 

The Punishment Act states that police and prosecutors must respect the victim's opinion when handling a domestic violence case (see article 9 and 12 of the Act). What it means is that if the victim expresses a desire not to prosecute the perpetrator or revokes a prior intention to do so, prosecution cannot proceed against the explicit wish of the victim-survivor. 

Women often face pressure and experience feelings of guilt over going to court, as prosecutions may result in criminal records for their violent partners. One victim, fearing her abuser would be imprisoned, declined to prosecute and two months later was attacked again. Although domestic violence is a complicated issue, one factor to consider is if victim-survivors are financially dependent on their perpetrators, in which case prosecution can lead to financial constraints for the family. The absence of long-term support from government providers makes the situation more challenging, as victim-survivors are often left with a choice between poverty and exposure to violence. 

This also presents a challenge for police because under the current law the extent of their intervention is discretionary too. While there have been instances where police officers have lacked sufficient training to respond appropriately to domestic violence cases, there have also been cases where police were unable to intervene because of opposition from victims. However, respecting the will of victim-survivors is sometimes misused as a rationale for inaction. 

Directions for improvement 

The concerns expressed above are not unknown among law enforcement officials, policymakers, scholars, and advocate-practitioners in South Korea. Gender based violence researchers and advocates have long argued that these areas require a detailed response, which could catalyse policy reforms. 

The current legal framework is not designed to adequately address the needs of individuals who experience violence and are not sufficiently informed. Unless there is a significant change in the Acts prioritising the victim-survivor’s safety and needs instead of focusing on family-centric and family protection discourse, the deficiencies within the Acts will persist, posing ongoing challenges to addressing domestic violence issues in Korean society. 

Sungshin Bae is a Gender Equality Policy Special Public Officer at the Supreme Prosecution Office in South Korea and a visiting scholar at the School of Languages, Literatures, Cultures and Linguistics, Monash University 

Hyein Ellen Cho is a lecturer in Korean Studies and a lead researcher at the Monash Gender and Family Violence Prevention Centre, Monash University