This blog post takes a deep look at whether the current legal system, which does not impose punishment on crimes committed by people with mental or physical disabilities, is fair and reasonable.
Do humans control and decide their own actions? This question, that is, the question of whether or not there is free will, has been unanswered and controversial for a very long time. Whether or not free will is recognized has an important impact on various areas such as ethics, religion, and science, and it is also an important issue in the field of law, which is closely related to real life. Generally, people believe that their actions are not caused by an uncontrolled environment, but are the result of their own judgment and decision-making. The current Korean Criminal Code also assumes that the average person has free will. This can be seen in Article 10 of the Korean Criminal Code, which deals with people with mental or physical disabilities. The following is the text of Paragraph 1 of Article 10 of the Korean Criminal Code.
“The actions of a person who is unable to discern things or make decisions due to a mental or physical disability shall not be punished.”
The above criminal law does not punish people with mental or physical disabilities because they are deemed to be ‘unable to make decisions,’ that is, they do not have free will. On the other hand, people without mental or physical disabilities are deemed to have free will and are therefore punished. However, there is much controversy surrounding this criminal law. For example, in December last year, a teenage student with a developmental disability of the first degree threw a two-year-old baby 10 meters down to his death in the “Sangyooni Incident.” The case ended with the court acquitting the perpetrator, saying that the perpetrator was mentally disabled and therefore incapable of making decisions. The student who committed the crime was not punished, nor was he placed under treatment or electronic monitoring. Many people were saddened by the fact that a small, young life was taken away, and the perpetrator went unpunished, and even a petition was started. Therefore, I believe that it is not appropriate to not punish people with mental or physical disabilities for the following reasons.
First, it is not right to acquit someone based solely on the presence or absence of free will, considering the various purposes of punishment. Let’s go back to the first question. At this point, let’s assume that the claim that humans are creatures with ‘no free will’ who act not based on their own judgment but simply based on the surrounding environment and the chemical reactions of their brains is correct. Then, crimes are actions that cannot be controlled by one’s own power, such as sneezing, and are committed unavoidably, so no one can be held responsible for them. But does that mean that all punishments should be abolished? No. If we did not punish everyone because they were not responsible, there would be great social chaos. In other words, punishment does not only serve to hold someone accountable for the damage they have caused. It also serves to reform criminals, isolate them from society to prevent them from reoffending, and to prevent others from committing crimes by learning from their mistakes. The function of punishment is still applicable even when a person does not have free will. First of all, isolating criminals from society creates an environment that prevents crimes from occurring. In addition, educating criminals or instilling a sense of caution in others also affects an individual’s values and beliefs, which in turn becomes an environmental factor that changes behavior. In other words, even if a person does not have free will, punishment is necessary to prevent recidivism. Therefore, even for people with mental and physical disabilities who lack free will, it is necessary to punish them if they commit a crime to prevent further damage.
In response, people who advocate for acquittal of people with mental and physical disabilities argue that “people with mental and physical disabilities should not be punished because their criminal acts are not acts taken for bad purposes or personal gain because they lack free will.” But let’s think about a normal person who breaks the law intentionally with bad intentions and a normal person who breaks the law unintentionally by mistake. Of course, crimes committed intentionally with bad intentions and crimes committed accidentally have a different weight of sin and are punished differently. However, the fact that both crimes are punished regardless of whether or not they were committed with bad intentions does not change. Therefore, criminal acts committed by persons with mental or physical disabilities should also be punished regardless of the bad intentions.
Second, not punishing them may actually lead to discrimination against them and threaten their human rights. The state has the function of maintaining order by creating laws to protect individuals from harm and guaranteeing compensation even if they are harmed. Under the law, everyone is equal, which allows people to feel safe and trust each other without breaking the law. But what if there is someone who is not covered by the law? Then others will not trust that person and will feel unsafe and avoid them. Of course, it is not right to perceive all people who are not covered by the law as potential criminals and avoid them, but no one will want to approach them at the risk of suffering damage that cannot be compensated. Not only that, but since they are not even given the disposal of the electronic bracelet, it is impossible to know whether they have committed a crime or not, which leads people to look at all mentally and physically disabled people with a jaundiced eye. In fact, in early November, about 300 residents of Jegi-dong, Dongdaemun-gu, protested against the establishment of a vocational training center for people with developmental disabilities, and the construction was even halted. They cite the “Sang-yoon incident” mentioned earlier as an example, saying that they are already worried about the unpredictable behavior of people with developmental disabilities who have trouble controlling their impulses, but they are even more worried now that the perpetrator of the incident was found not guilty. If crimes committed by people with mental and physical disabilities are not punished, many people will see the perpetrator as a “person with mental and physical disabilities” rather than as an individual, due to the fear that they themselves could become a victim. Therefore, this causes the general public to feel fear and even hostility towards people with mental and physical disabilities, which leads to discrimination against them.
Of course, there are also those who argue that the perception of people with mental and physical disabilities as potential criminals is wrong. Therefore, they say that it is necessary to improve the perception of the general public rather than punishing people with mental and physical disabilities to prevent discrimination. However, people’s anxiety is not unfounded. In fact, experts say that if mental illness-related crimes are left unattended, they are likely to lead to indiscriminate crimes, and according to the Supreme Prosecutors’ Office, the recidivism rate of mentally ill offenders is 65.9%, which is much higher than the recidivism rate of general offenders, which is 41%. Even with such a high recidivism rate, if these people are not punished, isolated from society, or rehabilitated, ordinary people will feel anxious and have no choice but to avoid mentally and physically disabled people. In particular, since they often commit crimes without a motive and randomly, people become more afraid of the idea that they themselves could become victims anytime, anywhere. Crimes that go unpunished are more likely to recur. Therefore, it is only natural that people fear and avoid those who go unpunished.
For the above two reasons, punishing the mentally and physically disabled is a necessary measure for them and for other ordinary people. If they are punished for the purpose of preventing recidivism, which is the punishment of rehabilitation and isolation from society, the anxiety of the general public will be alleviated, and the number of people who avoid or discriminate against them will naturally decrease. Therefore, in a situation where the crime rate of the mentally and physically disabled is increasing as it is today, Article 10, Paragraph 1 of the Criminal Act should be abolished and the mentally and physically disabled should also be punished to create a more equal and safe society.
