In this blog post, we will examine whether it is appropriate to reflect the emotions of victims and perpetrators in court rulings to ensure fair law enforcement.
Should the Law Exclude Emotions?
According to sentencing guidelines published by the Supreme Prosecutors’ Office in 2013, various sentencing factors are considered in sex crime cases, and the defendant’s “sincere remorse” has also been used as one of the factors in sentencing decisions. Since then, South Korean courts have continued to determine sentences by comprehensively considering various factors, including whether the defendant has shown remorse, restitution to the victim, and whether a settlement has been reached. As such, we often hear of cases where a sentence was reduced because the offender demonstrated remorse and a sense of guilt. In fact, related academic research and discussions within the legal community have consistently raised the view that emotions—such as the offender’s guilt or the victim’s anger and sadness—should be reflected to some extent in legal judgments. However, there are also voices of concern within the legal community regarding this trend. This stems from traditional legal philosophy, which clearly distinguishes between reason and emotion and holds that the law should be based on rational judgment as much as possible. When examining this perspective from the standpoint of fair law enforcement, is it truly desirable—as some scholars have recently argued—to reflect “emotions” such as the victim’s grief and anger, as well as the perpetrator’s guilt, in the sentencing process? I believe that in the real world, only rational judgments based on the facts, evidence, and the law—excluding the emotions of both the victim and the perpetrator—can enable fair administration of justice. Therefore, in this article, I will examine the potential problems that may arise when the emotions of the victim and the perpetrator are each reflected in a judgment, and analyze the conflicting relationships that emerge when both emotions are considered simultaneously from the perspective of fair administration of justice.
Problems Arising When the Victim’s Emotions Are Reflected in a Judgment
First, there are no clear standards regarding the extent to which the victim’s emotions should be reflected while maintaining the court’s objectivity, and this can lead to issues of moral discrimination. Consequently, there is a risk that the fairness of the judgment will be compromised as these emotions are conveyed to the judge or jury. First, if the anger, sense of loss, and grief felt by the victim and their family are expressed excessively, it can distort the nature of the crime and hinder judges and jurors from making rational judgments. Of course, if the victim has suffered not only material and physical harm but also psychological trauma—which is also a consequence of the crime—it is reasonable to hold the perpetrator accountable for this as well. However, the problem lies in the fact that the judges and jurors—who are ultimately human—are the ones responsible for reflecting the victim’s suffering in the sentencing; if they are unduly influenced by the victim’s emotions, there is a risk that they will render a verdict that lacks fairness.
In particular, since jurors are considered more prone to empathizing with the victim’s perspective than professional judges, maintaining a neutral perspective is even more critical in systems that utilize a jury. Concerns that judgments may differ depending on whether the facts of the same crime are presented in simple text or accompanied by harrowing crime scene photographs or videos stem from this very reason. In fact, during the 1995 trial for the Oklahoma City Federal Building bombing in the United States, the testimony of victims’ families and survivors was significantly restricted to prevent it from unduly stirring emotions. At the time, while the court allowed the victims’ statements themselves, it restricted the use of poetic expressions, wedding photos, and materials designed to heighten the emotions of children who had lost family members, on the grounds that such materials could unduly influence the jury’s emotions. This was a measure intended to ensure that feelings of vengeance or grief did not sway the jury’s judgment, thereby leading to the most objective verdict possible. As such, the court must always be vigilant against situations where it becomes overly empathetic toward the victim’s emotions, thereby losing objectivity and confusing the purpose of punishing the criminal with the punishment itself. Therefore, to prevent such confusion, it is necessary to restrict, to a certain extent, the excessive expression of emotions by the victim’s side.
Furthermore, if emotions are not set aside, the process of conveying those emotions could lead to moral discrimination—where the severity of punishment varies based on external factors such as the victim’s social status or background, even for identical crimes. This problem can become even more pronounced when the victim or their family members appear in court to testify. For example, suppose one person murdered a man in his 40s who had no family or relatives, while another murdered a man in his 40s who had three children and parents to support. If all other conditions are the same, it would be reasonable for both cases to receive the same sentence based solely on the criminal acts themselves. However, if in the first case there is no one from the victim’s side to testify, whereas in the second case the family members appear in court, shedding tears as they appeal to the judge regarding the victim’s social role and character, there is a possibility that the sentences for the two cases will differ. If, as in this example, the sentence for crimes of the same nature varies depending on the victim’s characteristics or circumstances, this ultimately raises the issue of moral discrimination—comparing which victim’s life is more valuable. Many people would feel averse to the very idea of ranking human lives in terms of superiority or inferiority, and one might question whether it is appropriate for such subjective value judgments to be reflected in legal rulings that require objectivity. Furthermore, this does not align with the fundamental principle of the Constitution of the Republic of Korea, which states that all citizens are equal before the law. Of course, from a long-term perspective, it is possible to argue that the harm in the second case—where a family’s livelihood is at stake—is greater. However, since a trial is a procedure for holding someone accountable for a criminal act committed at a specific point in time, the judicial system’s assessment should be limited to the criminal act itself, and any harm that arises indirectly thereafter should preferably be addressed through other forms of state support.
Therefore, except in certain cases where testimony at the trial is absolutely necessary, I believe it is preferable for the opinions of the victim or their family to be conveyed to the judge and jury in writing or by other means, with the priority placed on presenting objective facts. Of course, it would be an ideal situation if, instead of appearing in court to express emotions or vent anger, the victim were to provide only objective testimony aimed at achieving justice, allowing the court to render a fair judgment while understanding the suffering the victim has endured. However, every case has its own heartbreaking story, and a significant number of victims are likely to appeal to the court’s emotions in the hope that the perpetrator will receive a harsher punishment. It is not easy to establish clear criteria regarding the extent to which such emotional expression should be permitted. Furthermore, even in certain crimes—such as sexual harassment, where the victim’s sense of humiliation is a key factor—while the victim’s humiliation may be considered in establishing the crime, actual judgments in court are based primarily on the specific acts, the objective circumstances at the time, and the evidence. Therefore, it is difficult to view the victim’s emotions themselves as the basis for determining the verdict in such cases either. Ultimately, it is not realistic to establish a standard for “appropriate” emotional expression that can be consistently applied in all trials without influencing the court’s rational judgment. Therefore, I believe it is desirable to exclude the victim’s emotions from the verdict to ensure fair administration of justice.
Problems Arising When Reflecting the Perpetrator’s Guilt in the Verdict
Second, it is extremely difficult for the court to objectively assess the authenticity of the guilt felt by the perpetrator after the crime. Furthermore, even if the same crime is committed, reflecting post-crime emotions in sentencing does not align with the principle of fair administration of justice. The argument that the sentence of a person who feels guilt and sincerely repents should be reduced is based on the logic that the purpose of punishment is not merely retribution but also rehabilitation and the prevention of recidivism.
In other words, it is argued that a person who acknowledges their wrongdoing and deeply reflects on it is less likely to commit another crime, and thus their sentence may be reduced. In fact, in South Korean sentencing, whether the defendant shows remorse is sometimes considered as one of several sentencing factors. Conversely, there is also the view that if a defendant does not regret their crime or show signs of remorse, they are deemed to pose a high risk of reoffending and therefore require stricter punishment. However, it is not appropriate to reduce a sentence solely on the grounds that the offender has shown remorse after the crime. While it is true that rehabilitation and the prevention of recidivism are among the purposes of punishment, I believe these should be considered not at the sentencing stage, but during the execution of the sentence—specifically, when evaluating exemplary behavior or rehabilitation progress. Legal punishment should be based on objective facts and the harm caused to society by the crime; making the offender’s remorse—rather than the victim’s forgiveness—the direct grounds for a reduced sentence is likely to conflict with the public’s sense of justice.
Furthermore, a more fundamental problem is that there is currently no objective way in our society to determine whether an offender actually feels guilt. As this ties into the overall argument of this article, it is practically difficult to objectively measure subjective “emotions”—which vary from person to person—quantify them, and apply them to legal judgments. Moreover, “showing remorse” often simply means cooperating sincerely during the investigation or appearing remorseful in court. However, how can we clearly distinguish between someone who is genuinely remorseful and someone who is merely pretending to be remorseful to secure a reduced sentence? In fact, there have been well-known cases in which defendants received reduced sentences after shedding tears and appearing deeply remorseful in court, only to deny their crimes or claim they were wrongfully accused once incarcerated. If cases like these—where individuals exploit loopholes in the law to evade punishment—continue to increase, the law will struggle to properly fulfill its function of maintaining social order, and this could send the wrong signal to potential criminals. Therefore, not only is it difficult in practice to determine the authenticity of guilt, but even if it were possible to judge it perfectly, it is inappropriate for the emotions felt by the offender after the crime to be directly reflected in criminal punishment, which holds the offender accountable for the criminal act itself. Consequently, the offender’s emotions must also be excluded from the sentencing decision.
Conflicts Arising from the Inclusion of Emotions
Finally, let us examine the conflicts that arise when emotions are not excluded from the process of law enforcement. Assuming that emotions are reflected in the sentencing decision, a situation arises where judgments based on the emotions of the victim and the offender conflict with one another, creating the problem that it is impossible to determine which emotions should take precedence. As discussed earlier, the victim is likely to want the offender to receive the harshest possible punishment due to the grief and suffering caused by the crime. On the other hand, the perpetrator, feeling remorse for their crime, will likely want to receive the lightest possible punishment. When such diametrically opposed emotions coexist, it is extremely difficult to determine which set of emotions should be given greater weight. Both the victim and the perpetrator are individuals whose rights the law is meant to protect, and it is practically impossible to objectively quantify or compare their emotions to make a value judgment. Ultimately, even if emotions are to be reflected in a verdict, it is difficult to apply this consistently in actual trials. Therefore, the argument that fair law enforcement can be achieved in real society without excluding emotions faces many practical limitations.
As such, the victim’s emotions risk clouding the court’s objective and rational judgment and could also lead to the problem of moral discrimination, where sentencing may vary depending on the victim’s social circumstances. Furthermore, it is difficult to objectively verify the authenticity of the perpetrator’s emotions, and it is inappropriate to link post-crime emotions to responsibility for the criminal act itself. Moreover, if one attempts to consider the emotions of both the victim and the perpetrator, it is difficult to establish criteria for determining which conflicting emotions should take precedence. Therefore, to ensure fair administration of justice in the real world, the emotions of both the victim and the perpetrator must be set aside, and judgments must be rendered based on objective facts, evidence, and the law.
