Along with the decisions to arrest and prosecute, Criminal sentencing is among the most important of formal social control decisions. Although several theoretical perspectives have been used to study judicial discretion in the sentencing process, the focal concerns has become the dominant theoretical framework used to explain disparities in judges' sentencing decisions.
Using data from the Korean Institute of Criminology, this study examines the effects of sentencing of sexual assault within the focal concerns theory of sentencing. The focal concerns theory provides a framework for examining sentencing decisions in the present analysis. The theoretical perspective explains judicial decision making as a complex process based on limited information, which requires judges to determine proper sentences based upon three primary concerns-the offender's blameworthiness, protection of the community, and practical constraints and consequences-.
The purpose of this study attempts to explain the predictive effects of legal factors(sentencing guidelines), mid-legal factors(court process) and extra-legal factors(sociodemographic characteristics) of sexual assault cases using Average Marginal Effects and multiple regression analysis. This study selected 1,029 sexual assault cases which were entered on Supreme Prosecutors' Office's written judgement in South Korea from January 1, 2010 to June 30, 2010.
Summary of results of this study is that role type, using lethal weapon, prior sexual records, prior criminal records, concurrent crimes and intention of punishment had statistically significant positive effects(taking sentence rather than probation). On the other hands, appointing public defender and private defender had statistically significant negative effects(taking probation rather than sentence) in judge's sexual assault decision. In addition, perverse sex act, using lethal weapon, concurrent crime were likely to bring a longer sentence when judge decides the sentence. However, appointing private defender, older age and higher educational level were likely to carry a shorter sentence.
Although findings from the study support that judges followed well the sentencing guidelines and extra-legal factors did not be as influential in form of sentencing. However, the legal and extra-legal controversy has still far too long dictated a model of research. Therefore, both components should be refined and reexamined as part of the continuing process that seeks to understand the bases for the decisions that lead to court outcomes.