Gender matters in the judiciary: adjudicating sexual assault in Korea

Abstract

My dissertation explores if and how the gender and hierarchy of judges influence their decision-making behavior in rape cases. When female victims turn to courts for relief and justice, judges and attorneys oftentimes use sexist language about a victim’s sex life or appearance to trivialize violence and excuse the perpetrator. In the face of such problems, increasing the number of women judges on the bench has been considered a potentially important part of the solution. Yet, most of the existing research has focused on the gender difference in judging in the context of a few Western common law countries such as the U.S., the U.K., and Canada. As a result, to date, relatively little is known about if and how gender matters in civil law systems, leading to a one-sided conceptualization of the gender effect. Using an original dataset based on 756 rape cases and in-depth interviews with 42 legal elites, my dissertation remedies this gap by exploring if and how gender matters in the context of South Korea—a civil law country characterized by the absence of binding jury trials, hierarchical organization, and multi-judge panels in the first instance court. My main finding and contribution to the scholarship is that if and how gender matters in the judiciary are not uniform across legal systems. After controlling for a host of variables, I find that the gender effect in judging in the context of Korea is conditional on two factors: the female judge’s authorship and her experience on the bench vis-à-vis a male presiding judge, the most senior authority figure on the collegial panel. Unlike in common law systems where the presence of a female appellate court judge is found to influence her male colleagues on the panel in sex discrimination cases, the presence of a female judge alone does not have any effect on her colleagues in rape cases in a hierarchical collegial setting. The null gender effect, however, becomes positive when an experienced female judge authors a judicial decision. When the female judge is an author and is at the rank of a junior judge as opposed to a freshman judge, the sentence length is extended by 2.2 months on average compared to an all-male panel. Drawing from judicial politics, feminist jurisprudence, and social psychology, I argue that a panel consisting of all men tends to share similar views and reduces the possibility of discussing women’s perspectives during deliberations, leading to more lenient sentencing toward male defendants. Also, in a vertical career judiciary, minority women judges, especially the youngest inexperienced judges, cannot, even if they wanted to, dissent or impose harsher sentences than male judges because they are concerned with social acceptance within the male-dominated organization. With experience, however, the pressure of tokenism—the pressure to live up to expectations and follow male-centered norms—is alleviated. Such pressure leads novice female judges to acquiesce in the lenient sentencing decision of the male presiding judge. Yet, experienced female judges have less reason to hold back their voices and behave how they might have otherwise, particularly when they are directly engaged in writing a judicial decision. My dissertation suggests a vital policy implication: the mere presence of a female judge on the bench is insufficient in a vertical career judiciary, particularly in seniority-oriented societies. For a female judge to wield meaningful influence over her male colleagues during deliberations, she must accumulate sufficient bench experience and take on a role of an opinion writer. These findings are relevant to understanding gender interactions in other civil law countries such as Japan and Taiwan as well as in other hierarchical collegial settings like business firms and governments.