Crime of Child Abuse Homicide | Analysis of the Supreme Court's Judgment on the Offender's Dolus Eventualis in a Child Abuse Homicide Case

The defendant accused of the crime of child abuse homicide was a woman, A.

A had lived together with a man, B, for several years and had maintained a common-law marriage relationship with him.

The two were raising a total of three children: one child B had from his marriage to his former wife, and two children the two of them had while living together.

The subject of the abuse was C, the child born between B and his former wife.

A had been under great stress because C did not follow her instructions well and behaved somewhat restlessly.

When A, who was pregnant at the time, suffered a miscarriage, she attributed the entire cause to C and expressed extreme dissatisfaction.

The problem was that A's inner dissatisfaction led to the criminal act of child abuse.

A assaulted C with various implements, including drumsticks, a shelf-support rod, and a plastic clothes hanger.

She also abused C by stabbing his legs and body with a pencil more than 200 times.

As a result, C, who was in his growth years, instead lost nearly 10 kg in weight within a single year.

Acts of abandonment and neglect followed as well. Under the pretext of homeschooling, A did not send C to school, and she confined him in a room and made him copy out texts by hand.

In this way, C's body and mind gradually deteriorated.

On the day before the incident, C was likewise struck by A dozens of times across multiple parts of his body. A tied C to a desk chair and kept him unable to move for more than 16 hours. The following day, C ultimately died.

The prosecution indicted A on charges including child abuse resulting in death, and indicted her husband B, who had known of the situation yet acquiesced in it, on charges including habitual child abuse.

The courts of first and second instance, which heard the crime of child abuse homicide, determined that A had no intent to “kill.”

Their reasoning was that the stress and dissatisfaction toward C were insufficient to be regarded as a motive strong enough to kill C.

They also explained that it was difficult to conclude that the acts of binding C to a chair, or of assaulting him with a clothes hanger and stabbing him with a pencil, in themselves led to the result of death.

They further stated that, considering such facts as that C went outside two days before his death to buy and drink a beverage and spoke to A even just before his death, it appeared that A likewise would have found it difficult to foresee the result of C's death.

In addition, considering that A had installed a home camera in the house but did not remove it in advance before C's death and did not dispose of the various pieces of evidence revealing the circumstances of her abuse, the courts added that A had engaged in conduct difficult to attribute to a person who had an intent to kill.

For these reasons, the lower courts applied to A not the crime of child abuse homicide but the crime of child abuse resulting in death.

The courts also found that A's charges of habitual abuse, child neglect, and abandonment were sufficiently established, and they imposed a heavy sentence on A.

They also imposed an actual custodial sentence on B, C's father and A's cohabitant.

The lower courts pointed out that B, too, knew that his own son C was being habitually assaulted yet made no effort to resolve it, and instead joined in the abusive conduct by physically punishing C and hurling abusive language at him.

The prosecutor's final appeal, seeking a rehearing of the crime of child abuse homicide, was ultimately accepted by the Supreme Court.

The Supreme Court determined that there was substantial room to find that A had dolus eventualis as to the killing.

The Supreme Court first explained that, where a defendant argues that there was no intent to kill in the crime of child abuse homicide, the court must, in light of the characteristics of child abuse crimes, closely examine such circumstances as the relationship between the defendant and the abused child and the child's age, level of development, and state of health.

It also explained that whether the offense constitutes child abuse homicide must be determined by considering all the circumstances before and after the offense, such as whether the offender continued severe abusive conduct until the child died, and whether the offender stood by or abandoned the child.

The Supreme Court pointed out that the degree of abuse grew even more severe over the roughly three months from the time C stopped attending school until just before his death.

At that time, C's weight was decreasing sharply, parts of his body were undergoing necrosis because the wounds had not been treated in time, and he had suffered severe burns inside his mouth so that he could not even properly take in food.

Nevertheless, even after A came to know that C's state of health had already reached a serious level, she continued to assault him dozens of times and also bound his body.

The Supreme Court found that, because C's state of health had already deteriorated several days before his death, A herself could have sufficiently foreseen that, if continuous and severe abuse were to begin again, there was a possibility or risk that a fatal result would occur.

The Court nonetheless pointed out that A disregarded this and continued the abusive conduct, leaving C without taking any measures.

On that basis, the Court held that the lower judgment had erred by misunderstanding the legal principles concerning the intent to kill in the crime of child abuse homicide, an error that affected the judgment, and accordingly stated that it accepted the prosecutor's final appeal, reversed the case, and remanded it to the lower court.

The crime of child abuse homicide was newly established in March 2021.

This is because the Act on Special Cases concerning the Punishment of Child Abuse Crimes was amended following the so-called “Jeong-in case,” in which a 16-month-old adopted child died after enduring abuse by her adoptive parents over a long period.

In a case of child abuse homicide as well, proving “intent,” as in an ordinary crime of killing, is the most important issue.

As in this case, the determination of “intent” can differ somewhat from one court to another. The outcome of a trial may well vary depending on what evidence and what strategy one brings to the proceedings.

This is why, if you have come to be investigated on a related charge or have decided to file a complaint as a victim, you should obtain the assistance of an attorney experienced in criminal matters.

Daeryun Law Firm LLP has many attorneys with extensive experience in child abuse cases.

If you have any related inquiries, you are welcome to request a 🔗consultation with Daeryun Law Firm LLP at any time.