Tuesday, April 05, 2011

About Legal Self-Defense, Making the Unreasonable Reasonable

Dear Korean,

Today I read a shocking article on the Korea Times website about a bus driver who has been convicted of assault for preventing a sexual molester from attacking a woman. Do you know much about South Korean's prosecution law and under what possible way this is true? How is a man sentenced to jail for being a Good Samaritan by helping out the sexually harassed woman? It makes me wonder about the public perception regarding this case in South Korea... The guy was obviously delivering justice and order in his bus...


While we are on the law topic, let us get this question out of the way also. Many Koreans thought this news was outrageous as well, and it was duly covered by a number of English language blogs about Korea with similar level of outrage. Understandably so -- just reading the headline "Bus driver convicted for injuring sexual assaulter" is quite enough to make our imagination rush to the most dramatic picture possible. A rape was in progress, and the bus driver stopped it! How dare the court send the heroic bus driver to jail! But upon closer examination, people's reaction provides a classic anatomy of how misinformation spreads because of incomplete characterizations laced with salacious language.

First of all, let us look at the Korea Times article itself, because we often get so heated by the sensationalism that we miss the information that is plainly right in front of us. There are many factoids in the article that suggest that it was not exactly the case in which a bus driver stopped an ongoing rape by a depraved rapist. The "sexual assaulter" was a student "at a school for the disabled." That should tell the reader something. And what was the "sexual assault," exactly? It was "groping." Not to make light of unwanted touching, but groping is not exactly rape. Also, nobody went to jail. The sentence was suspended for two years -- which means while the bus driver was formally sentenced to six months in prison, he will never go to jail as long as he was on good behavior for two years.

More after the jump.

Got a question or a comment for the Korean? Email away at askakorean@gmail.com.

So let us dig further. The Korean already cautioned several times that the news in English about Korea is not completely trustworthy, as they often miss important details or fail to highlight the total context. The important missing context in this case was this: how did the assaulter get injured, and what was the extent of the injury? Several Korean newspaper articles give more details. Putting all the details together, this is the most focused picture of what happened, based on available news:
"A, a mentally challenged 18-year-old male student, was riding a bus with his chaperon B, a 50-year-old woman. After taking a seat, A began groping a female student C, who was sitting in front of A. B asked C to change her seat, and C changed her seat. A became unhappy that B put C away from him, and charged at B. A got on top of B and pressed down. Bus driver D noticed the commotion, stopped the bus and came into the scuffle between A and B. D attempted to take A off of B. In the process of doing so, D punched A in the face and broke A's left eye socket, requiring six weeks of treatment."
Not exactly a picture of a heroic bus driver stopping a rape in progress, is it? In this picture, the sexual assault was not only minor, but also almost totally irrelevant. What the driver stopped is not a sexual assault. (It was B, the chaperon, who stopped the groping.) What D stopped is a scuffle between A, the mentally disabled student, and B, the student's chaperon. At no point was C, the female student, at the risk of significant physical harm. But hey, telling a story about a bus driver stopping a fight between a mentally challenged student and his chaperon doesn't sell the newspapers.

But even at this point, the Korean was perplexed. The criminal code of Korea clearly recognizes justifiable self-defense. The justifiable self-defense extends to rescuing others in need also. Jail sentence, even if a suspended one, seemed excessive. At this point, the Korean started asking his friends who are attorneys in Korea. They were generally in agreement with the Korean, and expected the sentence to be significantly reduced or eliminated in the appeal. And sure enough, the sentence was reduced on appeal, such that the driver only has to pay KRW 1 million [= a little less than $1,000] to the assaulter.

(Say this about Korea's court system -- it moves really, really fast. It only took two months between the lower court's verdict and the appellate court's verdict.)

One might ask: Why did the bus driver have to pay anything at all? This is where a subtle difference between American and Korean law comes into play. Both in American law and Korean law, self-defense is limited by proportionality. That is, the responding defense ought to be proportionate to the threat posed. For example, if a purse snatcher took your purse and started running away, pulling a gun and shooting the purse snatcher in the back is not a justifiable self-defense. This is true in both Korea and U.S.

But here is the difference that did not register to the Korean's mindset as an American law-trained attorney: the "bandwidth" of proportionality is different in the U.S. and in Korea. In the U.S., the allowable response to a threat is greater than the same allowed in Korea. In an extreme case, even shooting at and killing someone who came into your house by mistake can be considered justifiable self-defense. In 1992 in Baton Rouge, Louisiana, a person shot and killed a totally unarmed 16-year-old Japanese exchange student who mistakenly came into his house in search of a Halloween party. (The student spoke no English and did not understand the word "freeze.") The shooter was acquitted from manslaughter, because the jury believed the shooter was justified to kill the student. (Thankfully, American justice system at least got half of the case right. In a separate civil suit, the shooter was ordered to pay $650,000 to the family of the Japanese student in compensation. For all you lawyers and law students, here is a good law review article discussing the case.) Needless to say, Korea's requirement for proportionality between the threat posed and the justifiable force used in response is a lot more strict.

With that context, now everything makes sense. The court must have focused on the fact that the bus driver D punched A in the face and caused broken eye socket. The court must have considered it to be a disproportionate response to stopping a scuffle involving a mentally challenged person. Punching takes a lot more intention than ordinary pushing and shoving. The result might have been different if D pushed A away, and A broke his wrist in the fall. The Korean is not totally on board with the court's conclusion, but it is still within the realm of being reasonable.

Now, let us look at the end result. What was once a ridiculous story in which the court threw into jail a heroic bus driver who rescued a damsel in distress is now a more-or-less reasonable story in which a bus driver is paying less than $1,000 for using excessive force while breaking up a tussle. The lesson? When something about Korea -- or really, about anything else -- looks totally outrageous, digging deeper and getting the full context usually produce a reasonable explanation.

One last point about the criminal settlement that was discussed in yesterday's post -- the K-blogosphere had a field day with this line in the Korea Times article: "Although the injury took place while the bus driver was trying to stop the male student from making a scene, he injured him and it required six weeks of hospital treatment. Also he did not come to any settlement with the student,” the court said in a ruling."

Seizing upon the emphasized sentence, the haters howled with glee. Not only the court is jailing a hero who prevented rape, the court is throwing this guy in jail BECAUSE HE DIDN'T PAY BLOOD MONEY!! LOLZ KOREA SUCKS. But of course, that is not true. As you might have learned from yesterday's post, that statement by the court is nothing more than a plain statement of fact -- without a settlement, a sentence is always coming. It is just like an American court noting that "Because the plea bargain failed, the defendant is sentenced to 15 years in prison." The defendant is not getting the 15 years in prison because she did not agree to a plea deal -- she is getting that sentence because it is the result of her crime.

Got a question or a comment for the Korean? Email away at askakorean@gmail.com.


  1. A+ for shining the floodlights of truth on all things Korean. I wish everyone blogged so responsibly.

  2. "In the process of doing so, D punched B in the face and broke B's left eye socket, requiring six weeks of treatment."

    Did you mean D punched A in the face?

  3. Yes! Thanks for noticing that. Fixed now.

  4. "...such that the driver only has to pay KRW 100 million [= a little less than $1,000] to the assaulter."

    I assume you mean the driver has to pay 1 million won? Otherwise the judgment is a LOT higher than just $1000.

    Thanks for the recent law-related posts, they are really illuminating.

  5. Thanks for catching that also. Not the most fastidious post, for sure. Fixed now.

  6. Hey, The Korean! It's really been a long time. Changing jobs kept me from reading your blog for a while, but I see that you keep going strong. I've been trying to catch up for a few days now and you're as sharp as ever!

    K. Soje

  7. Welcome back, ksoje! Did you notice that this blog has been featured on NYT, CNN and the Economist? :)

  8. "but groping is not exactly rape" Depends where you are at. In America any unwanted touching is considered rape. Only reason I know this is I watched season 12 of Law and Order SVU this week and heard them talk about it. Really good breakdown and discussion about sensasualism*( I can't spell I am retarded).

    1. No, one is Sexual Molestation/Abuse/Assault and the other is Rape. Totally different even in America or anywhere. I recommend not using a Fantasy T.V show for all your information.
      Source: http://sexualassault.appstate.edu/sexual-assault-rape

  9. Lesson 1:

    Never, never believe what you read in the newspapers, especially about countries you don't know and/or don't understand the language...

    Lesson 2:

    Never, never believe what you read in the newspapers...


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