In 2008, a person here in Korea by the name of Jo Doo-soon brutally raped an 8-year-old, severely mangling parts of her body in the process. As a result, Jo received a 12-year prison sentence (which means he is due to be released in 2020). He will start wearing a GPS ankle bracelet + his info available online, but he will be out nonetheless. There is no way to legally stop that.
In this case, the prosecution made two inscrutable mistakes:
1) They cited/used a general law – the Criminal Act (형법) – to indict Jo (as opposed to trying cite/use a special Act/law).
2) This trial ended rather quickly because the prosecution failed to appeal even when the court came out with a reduced the sentence (15 –> 12) citing the fact that Jo was fully intoxicated.
According to reports, the prosecutors in charge faced reprimand for these reasons, after the case. (Not sure how severely though.)
Since this case, Korean law has changed so that intoxication need not be considered (by the court) as a mitigating circumstance for certain sex/rape crimes. But what about for other crimes? Should intoxication still be a defense? In my opinion no. Unless of course, not voluntary (e.g., spiked drink). If we consider drunk driving, this is a crime punished precisely because we are/were drunk. Even sleepwalking, I feel, there are instances it’s possible to take precautionary measures. Re intoxication, I am of the opinion that it cannot be a defense regardless of foreseeability. Right now, Article 10 of the Criminal Act allows for it to be a defense if the crime was subjectively unforeseeable (for the defendant before voluntary intoxication).
Last month, Cho Kuk, the senior presidential secretary for civil affairs, replied online to a public petition made to the Blue House regarding these issues. Re intoxication as a defense, he says that the relevant clause in the Criminal Act (i.e., Article 10) is an all-encompassing clause applicable not only to intoxication but all other mitigating circumstances as well (e.g., sleepwalking, mental lapse/disorder…), so deleting the clause outright is not really an option. I think one possible solution is to add a new (sub)clause limiting the scope of the previous clauses to exclude intoxication. Long ago, I had a chance to meet Prof. Cho when he was (still) law professor at SNU. His specialty is criminal law.
Thanks for reading! FYI, the petitions website here.