Supreme Court can protect those who cannot speak for themselves

Kim Ye-won

The author is a lawyer at the Disability Rights Law Center.

The Supreme Court recently upheld the conviction of an elementary school teacher for repeatedly verbally abusing a 9-year-old student. In front of classmates, the teacher said things like, “How can you be so bad at studying?” and “You stress me out.” The child wrote in a diary that the teacher made them anxious and undermined their confidence.

A recording obtained through a device placed in the child's bag by the parents was ruled inadmissible. Nevertheless, the court established abuse through the child's testimony, diary and witnesses. The teacher was fined 5 million won ($3,500) and ordered to complete 40 hours of treatment for child abusers.

But what if the child had been unable to write a diary? What if the victim had a severe disability preventing verbal communication and there were no witnesses?

Not every abuse victim can describe their experiences. Infants, people with profound disabilities and older adults with cognitive impairments may struggle to recognize or communicate abuse. Such acts often occur beyond public scrutiny. Without surveillance cameras or witnesses, a faint audio recording may provide the only evidence.

The problem is that Korea's Protection of Communications Secrets Act makes no allowance for these circumstances. It prohibits third parties from recording private conversations between others and excludes illegally obtained recordings from evidence. There are no exceptions based on the victim's circumstances, how the recording was obtained or the seriousness of the crime.

Enacted following a political wiretapping scandal in 1993, the law has remained largely unchanged for more than three decades, potentially closing off the last avenue for victims unable to speak for themselves.

Courts have struggled with this dilemma. In one case involving a woman with severe cerebral palsy and intellectual disabilities, a personal care assistant repeatedly insulted, mocked and assaulted her. The court admitted recordings of the blows because they were sounds rather than conversation. It also admitted verbal abuse on the grounds that the victim could be presumed to have consented to evidence collection.

In another case involving a caregiver who cursed at and struck a 10-month-old infant, trial and appellate courts disagreed over whether the one-sided insults constituted conversation or nonverbal information. A recording of a daycare teacher berating a 21-month-old child was also admitted as nonverbal information.

These rulings reflect the courts' struggle to establish abuse while respecting strict statutory restrictions.

In 15 years representing abuse victims, I have repeatedly encountered cases where a single recording determined the outcome. In one, a child with profound disabilities who could not communicate verbally was confined in a bathroom and verbally abused by a special education teacher. A recording obtained by the parents proved decisive.

In another, a child died covered in bruises and injuries after entering a residential facility for people with disabilities. The case was closed for lack of evidence proving abuse.

This does not mean third-party recordings should be permitted without restrictions. Nobody wants every conversation by teachers and caregivers monitored. But is an absolute prohibition justified when there are specific grounds to suspect abuse, the victim cannot collect evidence independently and no other means of verification exists?

The fundamental solution lies in legislation. The National Assembly should establish narrowly defined exceptions and safeguards against abuse. Yet political conflict over judicial reform and controversy surrounding insufficiently deliberated legislation make swift, carefully crafted amendments unlikely.

Meanwhile, abuse cases continue reaching the courts. Judges cannot postpone proceedings simply because the law remains unchanged.

A case involving the admissibility of third-party recordings in the abuse of a child with disabilities is now pending before the Supreme Court. Its implications extend beyond the defendant's guilt or innocence to countless victims' opportunities to prove abuse.

The court should consider the legal reasoning developed by lower courts alongside the legislative purpose of the Protection of Communications Secrets Act and establish clearer standards.

Judicial independence and authority face continuing challenges. Ultimately, courts earn public trust by protecting rights in individual cases.

Some abuse cannot be exposed without recordings. If victims cannot speak for themselves and recordings obtained by others are automatically excluded, how can the state protect them?

The Supreme Court must now answer. I hope its full bench will examine the issue thoroughly and promptly, establishing reasonable exceptions for unavoidable evidence collection while respecting communications privacy.

There are people whose lives the Supreme Court alone can help save.