Saturday Night's All Right for Sexually Harassing

Last night in Seoul, a girl out on a public street with one or more friends was accosted by two chaebol executives (chaebols = super-conglomerates, equivalent to the zaibatsu of Japan). The two execs had been drinking, and decided to try to lift the girl's skirt and take photos of the whole affair.

Police fortunately came upon the scene and stopped this, after it had gone on a little while. The police decided not to press charges against the older exec, because he and the young lady came to a settlement. No settlement was reached with the younger exec, who was charged. This is not the first example I've seen of sexual harassment treated lightly, but what struck me was how settlement between the criminal and the victim averted criminal sanctions. While the criminal justice system here also operates on this premise, I hear that this is pretty typical. Perhaps this is exceedingly naive of me, but isn't an action punished criminally because it affronts society, rather than as revenge for the victim?

Your thoughts or words of wisdom are, as always, welcome.

(with apologies to Elton John)

Individualistic, Legalistic America v. Communitarian, Confucian Asia

(Picture is not the author's)

I've finally reached my limit for listening to people harp on the notion of a deep East/West cultural split. "The United States is being torn apart from within by individualism and legalism. Asians, unlike Americans, do not feel the need to resort to litigation for all their problems. They find other, more harmonious ways to settle disputes."

Obviously, you can tell I'm not a fan. I'm not even sure how much truth there is to such claims. I recently came upon what I consider a perfect example: adultery law. In Korea and Taiwan, adultery is prohibited by criminal law and a penalty which can be up to two years in prison. Although a criminal matter, it is not the State but the spurned spouse who must bring the charge against the adulterer and the interloper. That is to say, the system encourages spouses to co-opt the law as a form of revenge to deal with an intimate family problem.

In the U.S., by and large, adultery laws has been almost completely repealed or simply lapsed. While I am aware of certain exceptions, including a gentleman who was fined $250 in our own Commonwealth, it is fair to say adultery law is mostly a thing of the past.

Despite our reputation as the most litigious place on earth, we have decided that this is an area where social mores, rather than law, should regulate behavior. The Korean supporters of the adultery law (who are becoming fewer and fewer over time) claim that, if adultery laws ceased to exist, marriage would cease to have any meaning and infidelity would become rampant. As of Jan 2009 and Oct 2008 respectively, 25% of American men and 68% of Korean men report that they have cheated on their wives (rates for women, interestingly, are similar in both countries: 15%). Is it too presumptuous of me to say then, that this claim is a difficult one to justify?

I would like to hear your thoughts or examples of other areas you may be aware of where other (especially non-Western) countries encourage litigation and the litigious U.S. feels that non-legal norms are sufficient to ensure order.

Constitutional Review: A Law Prohibiting Night Protests

The U.S. and Korea have been in negotiations over a free trade agreement (FTA) for some time now. Up to now, Korea hasn't imported U.S. beef, and an FTA would require that to change. For one controversial reason or another, this has sparked a fear among many Koreans that importing U.S. beef means risking the importation of Mad Cow Disease. Late last year, a number of anti-FTA protests took to the streets of Seoul, and one of them became violent after dark.

A few months ago, the Korean National Assembly passed a law restricting nighttime protests. Under the law, groups would need to get permits to hold nighttime protests; daytime ones remain unrestricted. The Korean constitution ensures that "All citizens shall enjoy freedom of speech and the press, and freedom of assembly and association," and that "licensing of assembly . . . shall not be recognized."

The law has been brought before the Constitutional Court for review, arguments have been heard, and the court's decision will be announced within a month or two. Interesting from an American perspective, the court held a public hearing to get the public's opinion on the law and its relationship to the constitution.

As Americans, we're taught that our laws protect freedoms of speech and assembly to a greater extent than anywhere else in the world. I find it quite interesting then, that the Korean Constitution Court is considering striking down a law that I believe would pass constitutional muster in the U.S. The U.S. Supreme Court allows restrictions on the right of assembly under the doctrines of "clear and present danger" (Dennis v. United States), or in ways that are "content-neutral"(see, e.g., Hill v. Colorado), for example.

The law passed by Korea's National Assembly is content-neutral and is backed by the force of recent history. That is to say, to my knowledge the great majority of night protests over the past two decades have turned violent or at least damaging to private property. Based on the Korean constitution's language that "licensing of assembly . . . shall not be recognized," the Constitutional Court may have to protect freedom of assembly to a greater extent than the U.S. Or, maybe it will point to one of the other articles of the Korean constitution (Art. 21 (4) comes to mind) as a reason not to.