Added: April 8, 2017 – Last updated: April 8, 2017
Author: Ho Kim
Title: 조선후기 ‘因姦威逼律’의 이해와 茶山 丁若鏞의 비판
Translation: Jeong Yakyong’s Critical Inquiry into the Application of a Statutory Article “Using Coercion to Rape a Woman” in Eighteenth-Century Criminal Cases
Journal: The Chin-Tan Hakpo
ISSN: 1013-4719 –
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18th Century |
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»In this article I examined the debates surrounding cases involving “coercion in rape resulting in death” in the late Joseon, including final judgements given by the king, and examined the critical perspective offered by Joseon Yakyong regarding the use of the Coercion Statute.
In the late Joseon, not only was it determined that coercion in attempted rape was not eligible for the death penalty, but also sexual insult and harassment could not be applied as a cause of death while invoking the Coercion Statute.
In applying the clause requiring a causal relationship between “coercion and force from rape” and “resulting in death,” the question of whether the death was caused directly by the act became an important point. At the very least, an “attempted rape” was not considered a crime appropriate for the death penalty.
For Jeongjo, in cases of “coercion [through rape] where the rape was only attempted or was in the form of illicit harassment, it was not enough for a death penalty, even though the victim committed suicide.
As such, Joseon utilized the laws for “coercion and force from rape resulting in death” in a manner different from both the Addendum to the Ming Code and the Qing Code, in which the death penalty applied in cases of rape that resulted in death, regardless of whether the rape had occurred or was only attempted. Even though in the application of the Coercion Statute received criticism for being unable not only to punish the criminal intent of the perpetrator [with death], but also adequately recompensing the shame suffered by the victims, the legal interpretation was such that in cases where the perpetrator did not directly commit murder or if the rape did not actually occur, then there could not be a causal relationship identified between “coercion” and “death.” Of course, that is not to say there were not those who supported applying the death penalty in suicide but, King Jeongjo resolved most of such cases by [commuting] the death penalty, under the principle of “preserving life,” all the while rewarding the virtue of victims by honoring their chastity.
Jeong Yakyong criticized the custom of using the term “violator” to denote only someone who killed with their own hands and thereby not applying the category “main violator” in cases where a death resulted from coercion. This line of criticism was in turn a critique of late Joseon’s legal tradition, in which the causal relationship between “coercion” and “resulting in death” could only applied in cases where a rape had already occurred. At the center of Jeong’s critique was the question of premeditated motive, not whether the rape was attempted or committed, or even the result of death. He believed that the “coercion” of [intentional] attempted rape or sexual harassment constituted an action that was “enough to be feared,” and, as such, fell within the proper application of the death penalty under law. This was a warning against the spread of “lenient punishments” punishments in the late Joseon period.«
Kim, Ho. »Chŏng Yagyong’s Critical Inquiry into the Application of a Statutory Article “Using Coercion to Rape a Woman” in Eighteenth-Century Criminal Cases.« Association of Asian Studies Annual Conference. San Diego 2013 (March 23). –
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