A. Background of the Case
In this case, the Constitutional Court held that the provision related to the pharmacologic treatment of sex offenders' sexual impulses does not conform to the Constitution.
The defendant in the underlying case was indicted on a charge of forcibly molesting the victims, who were five and six years old, and the court was requested to issue an order for pharmacologic treatment of sexual impulses against the defendant. The court requested for adjudication of constitutionality of the provisions which provided the ground for the public prosecutor's request for an order for pharmacologic treatment (hereinafter referred to as the "Request for Treatment Provisions") and the provisions that stipulate that the court should issue such an order when such request for is deemed reasonable (hereinafter referred to as the "Order for Treatment Provisions") of the Act on Pharmacologic Treatment of Sex Offenders' Sexual Impulses (hereinafter referred to as the "Act on Pharmacologic Treatment of Sexual Impulses"), on the ground that they infringe on the fundamental rights of the person against whom the order for treatment was requested.
B. Summary of the Decision
The Constitutional Court ruled that the Request for Treatment Provisions are not in violation of the Constitution, and the Order for Treatment Provisions do not conform to the Constitution, for the following reasons.
A request and an order for the pharmacologic treatment of sexual impulses under the provisions at issue are being filed and issued in a limited manner to the extent necessary for groups requiring treatment and expected to show therapeutic effect, based on medical judgment. The pharmacologic treatment of sexual impulses itself satisfies the rule of minimum restriction, because the purpose of protecting society cannot be fully achieved if the treatment is conducted only on persons who desire treatment, and the existing probation system and attachment of an electronic ankle monitor alone are insufficient to prevent the recurrence of the sexual violence crimes caused by sexual deviants.
However, the Order for Treatment Provisions infringe on the fundamental rights, such as physical freedom of a person being treated, because if a long-term sentence is imposed, there would be a considerable time gap between the sentencing and the execution of an order for treatment, and thus, there is the possibility of unnecessary treatment being provided at the time of execution despite changes in circumstances during long-term imprisonment; however, there is no procedure to exclude such possibility.
The Constitutional Court delivered a decision of nonconformity to the Constitution subject to provisional application, on the ground that it is desirable to leave the establishment of detailed methods and procedures for eliminating unconstitutionality to the judgment of the legislature.
Justices Kim Yi-Su, Lee Jin-Sung, and Ahn Chang-Ho set forth a dissenting opinion that all the provisions at issue are in violation of the Constitution, as they violate the rule against excessive restriction, and thus, infringe on the physical freedom of the person against whom an order for treatment was issued. Justice Lee Jin-Sung added in his opinion that he agrees to the dissenting opinion, which alleges that the provisions at issue that make it possible to file a request and impose a sentence for pharmacologic treatment of sexual impulses without the consent of the person subject to treatment are unconstitutional, but that a different judgment should be made when a person subject to treatment sincerely consents to such treatment, because in such cases the restriction of fundamental rights, such as physical freedom or right to self-determination, is not an issue.
C. Significance of the Decision and Aftermath of the Case
The Constitutional Court has recognized through a series of decisions, the constitutionality of security measures to prevent the recidivism of sexual violence crimes, such as the attachment of electronic ankle monitors, registration of personal information, and collection of DNA samples and this decision is also an extension of such acknowledgement. Regarding this decision, there is also a criticism citing concerns about alleging that the provisions at issue infringe on the right to personality, physical freedom, and the right to self-determination of personal information, and violates the principle of prohibition of retroactive punishment, (Kim Ha-Yeol, Analysis of Major Decisions in 2015).
Reflecting this decision, the Act on Pharmacologic Treatment of Sex Offenders' Sexual Impulses was amended by Act No. 15254 on December 19, 2017, to newly include provisions on giving a person who received an order for pharmacologic treatment an opportunity to apply for exemption therefrom to the court during the period from twelve months to nine months before the termination of the execution of the sentence.