Study shows how gender justice movement has permeated the patriarchal, conservative, judicial system | By Martha Vickery (Winter 2021 issue)
Whether the MeToo movement in South Korea has led to bias in the severity of sentences for sexual assault and harassment convictions, and whether it has influenced gender bias in the male-dominated judicial system of South Korea, is the research topic of one University of Minnesota Ph.D. candidate in a thesis to be published in 2021.
The researcher, Holly Seo Nyeong Jo, is from South Korea, but spent most of her teen years and all her undergraduate years in the U.S. This experience made her more sensitive to matters of race and sex discrimination, which she experienced in two rural areas in the U.S. during high school, and in urban Minnesota, where she went to Macalester College in St. Paul.
That may be, in part, why the news story about Ji-hyun Seo got her attention. Seo, a prosecutor who went public about being sexually assaulted by a senior male prosecutor, catalyzed the MeToo movement in South Korea. Seo had been silent for many years – the assault occurred in 2012, and she went public in 2018, spurred on by MeToo stories from other countries. “That was the first time anyone ever broke the silence in South Korea, and that became the MeToo movement. Her contribution is big,” Jo said.
The suicide death of K-pop star HaRa Goo was another incident that inflamed the MeToo movement. Goo had been threatened by her ex-boyfriend with a sex videotape, which Goo contended was filmed of her without her consent. If the videotape went public, it was likely that Goo’s reputation and career would be ruined. There was pressure from the MeToo movement to punish Goo’s ex-boyfriend. There were also calls to appoint a woman judge to the case, although it’s not possible to change out the judge on an assumption of gender bias, Jo pointed out. It would also be prejudicial to assume a male judge would rule against the victim and a female judge would side with the victim, she added.
These incidents made Jo reflect on bias within the very conservative, hierarchical and male-dominated structure of the judiciary. It seemed like rich ground for research. However, Jo said, such research had never been done before, and criminal cases were not tracked in this way. It was necessary for her to create her own data set.
Jo assembled data from 600 cases in four judicial districts, and looked into whether “in a rape case, do the sentence lengths vary based on the sex of the judge and the gender composition of the bench.” More serious cases in South Korea are determined by a “bench” of three judges, Jo explained, who are ranked by seniority. The chief judge sits in the center, the next senior to his (or her) right, and the junior judge to his (or her) left. The verdict in a case is determined by the bench, even when a jury is also appointed to hear the case. “In theory, each judge has to be independent,” Jo said, “but considering the hierarchical society and patriarchal forms, the three judges are not equal in power.”
Recently, more women are becoming judges in Korea. Women comprise only about eight percent of the chief judges, and that number is also growing. But, right now most women judges are newly-appointed, and in the junior position, called the “left-sitting judge,” Jo said. It requires more than three years’ experience to be a “right-sitting judge” and 15 years’ experience to be a chief judge. The decision writing is always the job of the two junior members of the bench, usually the left-sitting judge.
Jo wanted to know how the power structure works when the decision-writing judge disagrees with the chief judge in the sentencing length or even whether to convict. “Can the senior judge, who exceeds [in status] the left-sitting judge by experience, age, and cohort difference, silence an opinion?” she said, “or can the left-sitting judge [if it is a woman], argue or advance her opinion. That was initial question, and that’s the question I am exploring.”
In addition to collecting the empirical data on sentencing, Jo said she interviewed 42 judges and lawyers for two hours each on their experiences and perceptions of bias, and had to place them within the power structure by age, cohort, and other factors.
After a year of information-finding and interviewing, Jo returned to Minnesota from South Korea on December 23. With a research award, she was able to hire two assistants to sort, enter, and code the empirical data. With completely coded data, “we ran an analysis of the 600 cases, and my hypothesis was upheld that adding a woman to the bench would result in an increased sentence for the defendant. I was so happy that the hard work has paid off.”
The transcripts of the interview answers still must be coded. Because it is qualitative data, the kind with more complexity than just numbers or yes/no answers, she has to subject it to an “intercoder reliability test,” she said, to ensure all the coders understand how to classify the answers and avoid “cherry-picking” an interpretation they consciously or unconsciously favor.
In addition to getting the raw results of sentencing, she also wanted to “get inside of the minds of the people in the interviews,” she said. There were questions like “‘Are you discouraged from advancing your opinion when arguing with your chief” and ‘do you think your gut feeling on sentencing is different from your chief?’
She also asked the interviewees about the culture of their workplace, particularly about sex discrimination. “Quite a few women said they have experienced sexual discrimination in the court,” she said. One of the older women judges said she remembered that when she was in law school, there was not even a women’s bathroom at the law school, she added.
Jo said she “oversampled” women because she has an interest in their role and point of view, and with 42 interviews out of a possible 3,000 judges in the country, there was no point in trying to get representative sampling of the population of South Korean judges.
In South Korea, a court administrator assigns judges to panels in the district for criminal and other divisions at the beginning of the court’s administrative year, starting in February. Jo said her data set contains sentencing results from 2014 to 2020. Interestingly, she said, in her data set, “the number of district courts with all male judges drastically decreased between 2018 to 2019.” There used to be four or five all-male benches in the eight district courts. And in 2018-2019, there are now only two all-male benches.
“I can’t say why at this point,” she said. “My speculation is that the court administrators, when deciding on whom to send to what position, …because of MeToo and voices of the public, they have decreased the male judges in the criminal division [where sexual assaults are prosecuted] and tried to increase the number of benches with at least one woman on the bench.”
The law has also been slow to catch up to other widespread, serious crimes going on with online human trafficking and pornography, she said. “The law is always the last thing to change in society,” she said. “After society changes, then culture changes, and then finally the law changes.” The so-called Nth Room cases that surfaced in 2019, in which young girls are coerced, then bullied and threatened into performing for virtual live pornography rooms, baffled and shocked the judges, she said. At first, there were no sentencing protocols to fit the crime. As a result of public pressure, the sentencing for this kind of crime has recently been increased in severity, she said.
Jo said the painstaking construction of a new kind of data set was worth it in the end, although she endured a lot of discouraging remarks at first about her intent to take on an entire branch of government, and interview employees about things they would not want to talk about. South Korean legal scholars in particular would not talk to her. They had no motivation to do so, she explained, because there is little interdisciplinary cooperation in Korean academic circles. “No one would even return my email,” she added. As a result of this isolation of law at the top, she said, “no empirical study being done in this area at all. That is why no one is criticizing the judges, prosecutors or other lawyers, and so there is less pressure to change.”
Jo first visited the U.S. when she went to South Carolina at age 10 to visit an uncle who was studying there. After she returned to South Korea, she often told her parents she wanted to return to the U.S. for high school. At age 14, she took an exam as part of an academic contest, and won — the prize was a year in the U.S. After landing in Idaho at age 14 by herself, and going through a year of complete culture shock as a high school freshman there, she went to North Carolina for three years, graduated, and then enrolled in Macalester College for her undergraduate program. She got a graduate degree back in Korea, then returned to Minnesota for her Ph.D. program.
While in the U.S. as a young teen, she was forced into being the problem-solver for her own life, since her parents do not speak English and could not help her with applications, travel or other arrangements. “I think I cried a lot!” she said. “But now I am grateful for that time. It made me a lot stronger and more independent, and really made me into who I am today.”
Life smoothed out after awhile but it was a rough landing into American culture. She remembers some funny blasts from the past – eating vegetables that we completely unfamiliar to her when she was in her first host family’s home; getting a calling card to use to call her parents from rural Idaho; plugging her computer into a modem and waiting for it to connect; riding the bus for two and a half hours to get to school in Idaho, and remembering how she used to walk 10 minutes to get to school in Korea. “I had to eat macaroni and cheese with ketchup, and I missed kimchi so much!”
After a lot more late nights, Jo will finish her degree by July 2021, and publish her thesis in some form, bringing to a close this part of what may be a life project in probing judicial practice and politics. After that, she hopes to get a job as a professor, and teach students about judicial politics in South Korea and in the U.S., as well as other interdisciplinary topic about Northeast Asia.
Holly Seo-Nyeong Jo has a website explaining her research at seonyeongjo.com