Court ruling punishes virtual, real child sex abuse material the same under law
The Constitutional Court ruled that fictional sexually abusive depictions of children essentially pose the same risks as those involving real children, and that the verdict does not violate the constitutionality of the law on the distribution and possession of such material.
Constitutional Court justices preside over a legal proceeding at the court in central Seoul on May 21.YONHAP
Sexually abusive fictional content — including cartoons and other virtual media — depicting children can be treated the same as that involving real children under the law, the Constitutional Court unanimously ruled earlier this week.
On Wednesday, the court found that sexually abusive materials portraying fictional children essentially pose the same risks as those involving real children. It also upheld that the verdict does not violate the constitutionality of the law criminalizing the distribution and possession of child sexual abuse material.
The case centered on whether authorities could hold virtual child sexual abuse content to the same legal standards as that involving real children under the Act on the Protection of Children and Youth Against Sex Offenses. According to the act, anyone who sells, lends, distributes, possesses, transports or publicly exhibits child or youth pornography for commercial purposes may face up to 10 years of imprisonment with labor.
The constitutional review was brought by a defendant who uploaded 82 files of cartoon children and adolescents engaged in sexual acts to a file-sharing website between July and August 2020.
The defendant allegedly uploaded the files for profit, aiming to redeem points — rewarded based on the number of files uploaded by the user — that can be converted to cash. In July of that same year, the defendant also downloaded 13 files featuring sexually abusive content of cartoon children and adolescents.
“Fictional depictions are less harmful than those involving real children,” the defendant argued. “Therefore, imposing the same criminal penalties violates the constitutional principles of proportionality and equality.”
AN AI-generated image of a child being exposed to an unidentified riskCHATGPT
A lower court accepted the argument and referred the case to the Constitutional Court for review.
However, all nine Constitutional Court justices rejected that argument.
“Advances in technology have made virtual images of children and adolescents increasingly difficult to distinguish from real ones,” the court said. “Such […] images can still provoke abnormal sexual impulses toward children and adolescents, so the level of harm does not fundamentally change based on whether the material depicts real or virtual children.”
The court also noted that the content could eventually lead to sexual crimes involving minors in real life.
“Virtual depictions can cause distorted views of sexuality and encourage unhealthy attitudes toward sex,” the court said. “Repeated exposure to such […] material could lead to sexual offenses against [real] children and adolescents.”
As a result, the justices rejected the argument that such fictional works should be treated differently.
“Treating this material as acceptable simply because it is fictional may desensitize viewers to violence and sexually explicit content,” the court said. “The harmful effects, including sexual objectification, cannot be said to differ significantly just because the material is presented in another form.”
The court further stated that its ruling does not violate the constitutional principles of proportionality or equality under the Act on the Protection of Children and Youth Against Sex Offenses.
“Judges can take into account whether the material involved a real person or a virtual depiction, as well as other circumstances, when deciding a sentence within the statutory range,” the court said. “Thus, treating virtual and real child sexual abuse material under the same legal framework does not disrupt the balance of the criminal justice system.”
This article was originally written in Korean and translated by a bilingual reporter with the help of generative AI tools. It was then edited by a native English-speaking editor. All AI-assisted translations are reviewed and refined by our newsroom.
