“Why did you do that?” What would a trial be like where the victim directly questions the defendant? [Flat] - 경향신문

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It was a question the victim's mother put directly to the defendant in court. In September 2014 in Kobe, Japan, a first-grade elementary school girl went missing and was later found dead. The defendant was indicted on charges of luring the victim to his home, killing her, mutilating her body, and abandoning it.

From the first hearing held in 2016, the victim's mother and maternal grandmother, as bereaved family members, participated in the trial as victim participants. Victim participants have the right to question the defendant directly. In response to the mother's questioning, the defendant answered, “To satisfy sexual desire.” The mother also asked, “Why did you not stop midway?”, “What is the reason you have not apologized?” Without going through the prosecutor, the victim's side directly pressed the defendant about the motive for the crime. In the first instance, the death penalty was imposed, and a life sentence was finalized at the higher court. Asked why she took part despite the pain, the mother answered, “Because I wanted to know the truth and for the defendant to pay the rightful price for his crime.”

In South Korea, which has no victim participation system, it is impossible for a victim to question the defendant directly in court like this. However, countries that thought earlier about how to guarantee victims' rights in criminal justice have created systems that ensure victims can take part in the proceedings. They have sought ways for the defense rights of the accused (suspect) and the rights of victims to coexist under the broad umbrella of restoration and justice. The laws and systems of other countries also have real-world limits, but at least they moved beyond the dichotomy of defense rights of the accused versus the victim and brought victims into the process.

Victims, legal professionals, and activists who met with the Kyunghyang Shinmun Women's Narrative Archive, Flat, spoke with one voice: ‘Criminal victims have changed.’ Compared even with just over ten years ago, various victim communities and groups have grown in number. It is no longer unusual to see victims seek out lawyers. The voices of victims who wish to have their rightful place recognized have now grown to a level that can no longer be ignored. Having a place in my own case begins with recognizing victims not as a ‘pitiful person’ but as a ‘person with rights’.

Japan, whose legal system is often considered similar to Korea's in many respects, introduced the victim participation system in 2008. Victims or bereaved family members who are granted permission acquire the status of victim participants and may exercise rights such as stating opinions on procedural acts and questioning witnesses and the defendant. Target crimes include murder, bodily injury, sex crimes, human trafficking, and crimes of negligent homicide or injury including traffic accidents. Approximately 99% of victims who applied were reportedly approved.

The first trial to apply the victim participation system was held on January 23, 2009, at the Tokyo District Court. The wife and elder brother of a man who died in a traffic accident appeared in court as victim participants, and at the ensuing press conference they shared the following thoughts: “Although our anger grew when confronting the defendant directly, had we not participated, we could not have conveyed our thoughts to the judges. It was truly good to be able to speak our minds directly.” To the question, ‘Is it not enough to have the prosecutor ask on your behalf?’, they answered, “Even if a third party speaks for us, the victim's feelings do not reach the defendant.” This shows a desire for victim-specific participation that is not satisfied by someone else speaking in their stead.

For victims of sexual violence as well, the system is evaluated as having a certain degree of effectiveness. Looking at the status of the victim participation system by crime category contained in the “2025 White Paper on Crime,” the combined share in first-instance trials in 2024 for sexual offenses such as non-consensual molestation and non-consensual intercourse was 32%. This was higher than the 26.9% combined for murder, bodily injury, and robbery resulting in death or injury. Fukuyama Riho, well known for publicly accusing her biological father of sexual violence under her real name, also took part as a party to the trial through the victim participation system.

The Japanese example shows a structure in which victims have a certain level of participatory rights within the existing party-driven framework. When the Korean government introduced in 2011 a bill to amend the Criminal Procedure Act that included adopting a victim participation system, the main model was Japan's system. The discussion did not gain momentum and the government bill was scrapped when the National Assembly term expired, but even recently the Japanese example is commonly cited in discussions of ways for victims to participate.

Germany is also cited as a representative country that recognizes broad powers for criminal victims. Its accessory prosecution system grants victims of offenses such as sexual violence, human trafficking, stalking, and attempted homicide the status and authority to participate in trial proceedings as accessory prosecutors. The bereaved of those who died as a result of crime are also recognized to have accessory prosecution rights. In principle, accessory prosecutors may participate in the proceedings to the same extent as the public prosecutor. Accordingly, they exercise rights including attendance, access to records, questioning, objections, motions to admit evidence, and appeals. This differs from the situation in Korea, where even if victims wish, if the prosecutor does not appeal, there is no opportunity to obtain a ruling from a higher court.

The accessory prosecution system in Germany has been repeatedly supplemented for more than 100 years. The categories of crimes to which the system applies and the scope of accessory prosecutors' powers have also changed little by little. Overall, however, it has developed in the direction of expanding opportunities to participate for victims of serious crimes such as sexual offenses and violent crimes. Germany also has a private prosecution system that allows victims of minor offenses to bring criminal charges independently without a prosecutor.

Many countries have also established systems to prevent vulnerable victims of sexual crimes from suffering secondary harm during investigation and trial, and to fundamentally block offenders from advancing claims based on rape myths. These are measures to prevent suspects (defendants) from insulting and destabilizing victims under the pretext of their right to defense. Such mechanisms are commonly called ‘Rape Shield Law (Rape Shield Law·Rape Victim Protection Act).’

For example, Canada's Criminal Code prohibits inferring, on the basis that the victim engaged in other past sexual activity, that “she likely consented this time as well” or that “her credibility is low” (Article 276). If the defendant wishes to use the victim's sexual history as evidence, they must obtain permission through a separate in-camera hearing. To obtain permission, the evidence must be relevant to the issues at trial and sufficiently specific, and its probative value must significantly outweigh the risk of prejudice. The court considers factors such as the defendant's defense rights, the need to exclude discriminatory prejudice, and any harm to the victim's dignity and privacy.

The United States also provides through the Federal Rules of Evidence that, as a rule, a sexual assault victim's past sexual conduct or sexual disposition is inadmissible as evidence. Exceptions include cases where the probative value substantially outweighs the danger of unfair prejudice, or where the purpose is to prove that someone other than the defendant was the source of physical traces; such evidence may be used only if allowed in an in-camera hearing. In such proceedings, the sexual assault victim is also to be given an opportunity to be heard.

Under such systems, victims can be protected in advance from being indiscriminately exposed during examination to defense questions like: ‘You said you usually liked the ○○ position (during sex), correct?’, ‘Do you remember saying you liked having sex at ○○ in the past?’ (②‘A victim in the gallery who cannot even rebut’). It can also, to some extent, block the defense from designing questions grounded in rape myths, including the victim-precipitation theory.

Many countries operate victim protection systems that span the entire justice process. In the United States, a federal-level victims' rights law defines eight rights for crime victims. In some U.S. states, victims' views are heard when reviewing offenders' bail and parole. This reflects the idea that victims are the ones who most acutely feel the risk posed by offenders after release. France places victim support offices in district courts nationwide to provide one-stop assistance.

Bringing victims into the process requires careful, detailed discussion. Granting victims multiple powers can, if done poorly, end up shifting an excessive burden onto them. If a system for victim participation is to be designed, even deciding which categories of crimes it should apply to and how much authority to grant is not easy. Because each country's system arose from different backgrounds and legal frameworks, it is also difficult to transplant foreign examples into Korea wholesale.

Recently, as concerns about protection gaps for victims following the abolition of the prosecution's supplementary investigation power have mounted, various follow-up legislation and remedial measures are being discussed. The National Assembly Gender Equality and Family Committee passed an amendment to the Act on the Protection of Children and Youth against Sexual Offenses that mandates forwarding all such cases to prosecutors. An amendment to the law on the Serious Crime Investigation Agency that grants the agency authority to conduct supplementary investigations and reinvestigations into seven major crimes targeting socially vulnerable groups also cleared the Public Administration and Security Committee. However, these are closer to one-off legislation aimed at offsetting the fallout from abolishing supplementary investigation power than the product of comprehensive deliberation on victims' rights to participate in criminal trials.

Experts point out that, above all, relevant institutions need to change the way they see victims. In a reality where systems and practice are out of sync, mere institutional revision is unlikely to expand victims' rights. Attorney Jeong Myeong-hwa of Leechae Law Firm said, “It is important that investigative agencies and courts develop the awareness that victims' rights must be guaranteed. To take the right to inspect and copy records as an example, even if the relevant law is amended, unless the internal rules of investigative agencies are adjusted, little may change on the ground.” Attorney Oh Ji-won of Law and Healing Law Office also said, “A perspective that fails to understand victims' positions has taken hold in the prosecution and the courts. At this rate, even if victims' rights are codified, change will be difficult unless education and training at the relevant institutions are made substantive.”

Attempting to change the perspective brings us back to the most fundamental questions. What is the purpose of legal procedure? If the defendant is protected by the presumption of innocence, by what should the victim be protected? What is the true meaning of the maxim that it is better to let ten criminals go free than for one innocent person to suffer? These are questions we should revisit to make room for victims who have been pushed into becoming ‘invisible presences’ within the process.

One thing is certain: the justice process does not exist to let suspects (defendants) ‘slip out.’ Kim Jeong-hye, an associate research fellow at the Korean Women's Development Institute, said, “One of the main purposes of trials is to discover the substantive truth and realize justice accordingly,” adding, “Creating the conditions necessary to discover the substantive truth is legitimate in that sense.” She also said, “The principle that we must not create a wronged defendant cannot serve as the basis for a claim that victims should be given no authority at all.”

Attorney Oh Ji-won noted, “Allowing victims to participate does not produce innocent defendants, and, as seen in overseas examples, it does not topple the justice system.” The attorney added, “Because the tilt is currently off, correcting it may look like breaking the balance, but now is precisely the time to set the balance.”