Sword and Scale: Punishment of Sexual Crimes in Joseon and Seeking Answers in Modern Times

Questioning Present Justice Through Past Laws.

• The concept of gangsang crime, a strict standard for sexual crime punishment in the Joseon era
• Issues of high probation rates and secondary victimization in the modern judicial system
• Concrete judicial reform proposals through comparison of past and present

In the Joseon marketplace, severed heads displayed were symbols of state-enforced morality. Today, news that sexual crime punishments often end in probation starkly contrasts that brutal image. One side represents extreme state violence; the other, a gap with public legal sentiment. This article dissects modern judicial problems through the seemingly cruel laws of the past and seeks a better path to justice.

Part 1: Law Without Mercy: Sexual Crime Punishment in Joseon

Order, Hierarchy, and Gangsang Crime

Joseon used its own legal code, the Gyeongguk Daejeon, alongside Ming Dynasty criminal law, the Da Ming Lü. These codes were more than rules; they expressed a Neo-Confucian worldview aiming to maintain strict hierarchical order.

The core was the concept of gangsang crime (綱常罪). This referred to crimes that shook the social foundation of the Three Bonds and Five Relationships. Certain sexual crimes—especially those violating social status order—were seen not just as personal violations but as rebellion against the state and natural order. A typical example was a slave raping his master’s wife.

This clearly shows the principle that protecting hierarchy takes precedence over individual protection. The severity of punishment was proportional to how much the crime challenged the existing order, and the law’s primary function was to safeguard class structure, not individuals.

Crime Chronicles: Case Studies from the Annals

Actual cases vividly illustrate the legal sentiments of the time.

• Case 1: Slave Silguji (1404) Silguji and accomplices, slaves who gang-raped a noblewoman, were punished by lingchi (death by a thousand cuts) for “defying the natural order of heaven”. This was not just execution but a state declaration to erase their existence.

• Case 2: Child Sexual Assault (Taejo & Sejong eras) Perpetrators who raped 11- and 8-year-old girls were swiftly and decisively sentenced to hanging. Notably, King Sejong declared, “Rape is unforgivable even under a pardon decree,” showing a minimal empathy to protect the most vulnerable.

• Case 3: The Burden of Chastity and the Yeolnyeomun (Virtuous Women’s Gate) Protection of women was a double-edged sword. Victims had to prove rape themselves, and even if proven, family honor was stained. If a woman died resisting, the state erected a Yeolnyeomun, transforming her tragedy into a symbol of patriarchal virtue. This led to ironic false testimonies claiming “I was too weak to resist” even in consensual cases to avoid punishment.

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• Case 4: Corrupt Officials (1472) Officials who accepted bribes to cover up rape cases received severe punishments of 100 and 90 lashes, punishments that could cost their lives. This showed that negligence in law enforcement was itself a grave crime against the state.

Part 2: Modern Dilemma: Leniency, Discrepancy, and Victim’s Ordeal

Legal Shift: From Social Order to Sexual Autonomy

Modern South Korean law (Criminal Code, Sexual Violence Punishment Act, Juvenile Protection Act, etc.) prioritizes protection of individual sexual autonomy over patriarchal ‘chastity’. This is a fundamentally different philosophical foundation from Joseon.

While this philosophical shift is undoubtedly progress for humanity, paradoxically, it sometimes pushes the essence of ‘victim’s suffering’ behind procedural fairness or potential for rehabilitation.

Sentencing Gap and ‘Sincere Remorse’

The problem lies in the gap between strict legal codes and actual verdicts. The probation rate (35.7%) in first-instance sexual crime trials exceeds the imprisonment rate (29.3%). Shockingly, even for child and adolescent rape, probation rates hover above 40%.

The main mitigating factor, ‘sincere remorse’, is easily recognized through submitting apology letters or paying bail, resulting in de facto inequality where the perpetrator’s economic ability influences sentencing. A system that abolished class distinctions reproduces hierarchy through economic power.

Victim’s Second Trial: Secondary Victimization

Secondary victimization refers to additional suffering victims endure while seeking justice—insensitive investigations, character defamation in court, and malicious online comments.

This closely resembles the burden of proving ‘chastity’ that Joseon women faced. Today’s victims are pressured to prove they were not intoxicated and that they ‘resisted sufficiently.’ Although the legal standard shifted from ‘chastity’ to ‘consent,’ the irony that victims must prove their innocence remains. What do you think about this?

Comparison: Sexual Crime Punishment in Joseon and Modern Korea

The approaches of the two eras show clear differences, revealing failures in the modern judicial system.

Checklist: Proposals to Balance the Scales of Justice

This is not a call to return to the past. To correct current principles, the following reforms are needed:

1. Sentencing Reform: Significantly tighten probation standards for violent sexual crimes. ‘Sincere remorse’ should be redefined to require substantive efforts such as participation in restorative justice programs.
2. Strengthen Victim Rights: Legalize victims’ access to information and introduce strict evidentiary rules limiting character attacks during trials to prevent secondary victimization.
3. Judiciary Empathy Training: Mandate continuous education for judges and law enforcement on victim-centered perspectives and trauma understanding to reduce the gap with public legal sentiment.

Conclusion

Comparing past laws and present justice reveals three key points:

• The Joseon era governed sexual crimes, especially gangsang crimes, with a zero-tolerance principle to maintain social order.
• The modern judicial system aims to protect individual rights but fails to fully realize this due to high probation rates and secondary victimization.
• True justice is not past cruelty but consistent practice of current principles that recognize the gravity of sexual crimes and fully protect victims.

I hope this article prompts renewed reflection on our society’s standards for punishing sexual crimes and the role of the judicial system.