“Criminalizing” Marriage Migration and Home Space as Confinement in Asia

Sohoon Yi (sohoon.yi@rice.edu)
Postdoctoral Fellow, Chao Center for Asian Studies, Rice University

In most countries, it would be unreasonable to think that the mere act of leaving one’s marriage makes grounds for criminal conviction. However, when a migrant is accepted in the country of destination through his/her marriage with a citizen, the pressure to prove “authenticity” of their relationship can create coercive situations for the migrant. With increasing immigration enforcement measures, immigrants are subjected to having their visas canceled and deportation once their marriage is deemed “non-genuine.” The commitment to (stay in) marriage seems to play an important role in proving “authenticity,” and divorce and separation can be interpreted to undermine one’s “true” intention at the time of marriage. This is the case not just in Asia but from around the world. For example, two years ago, the Canadian government revoked conditional permanent residence for spouses and partners that it instated in 2012. The condition was introduced as “a means to deter people from seeking to immigrate to Canada through non-genuine relationships” and required some sponsored spouses/partners to stay in a relationship with citizens for two years unless in exceptional circumstances. The abolition came with the criticism that the fear of losing status creates a power imbalance and places the sponsored spouses and partners in a vulnerable condition.

Pressure to prove the authenticity of marriage, the strength of immigration surveillance, and migrants’ deportability can create harmful conditions for migrant spouses. In a paper that I recently presented at the Marriage Migration, Family and Citizenship in Asia Conference at the National University of Singapore, I delineate criminalization of marriage migrants who leave their marriage in South Korea. It has been a couple of decades since scholars started paying serious attention to the distinct phenomenon of marriage migration within Asia, characterized by the pervasive involvement of commercial cross-border matchmaking services, the difficulty in obtaining citizenship or permanent residence (automatically) through marriage, and state’s heavy involvement through its scrutiny, protection, and enforcement mandates. My paper places marriage migration in the growing research on the conflation of immigration and criminal offenses, with the development of sophisticated techniques for penalizing immigration offenses. When leaving one’s marriage can render the migrant spouse undocumented, then can the act of leaving one’s marriage be also conflated with criminality?

This research was inspired by the case presented to the Supreme Court of Korea where a Vietnamese wife of a South Korean citizen was indicted for the charge of kidnapping their child. On 21 March 2013, the Supreme Court of Korea broadcasted a court hearing of this case on live television, and it was the first time in history that a court hearing was televised. The court reasoned that the matter was timely and felt that South Korea as a society should deliberate on it. While the full bench of 13 justices agreed with the previous two courts to find the woman not guilty, it was a closely debated trial, with five out of 13 justices producing a dissent opinion and the five of eight on the majority side delivering a rebuttal to the dissent opinion.

According to the court documents, a Vietnamese woman identified as “A” came to South Korea in April 2006 after marrying a South Korean man in Vietnam in February of the same year through a commercial marriage brokerage. In August 2007, she gave birth to a child. A’s husband worked full-time, so she stayed home to care for the toddler. In August 2008, “A” went to her friend’s house 60-70 km away, but her social gathering went late; “A” missed the last bus home and had to return the following day. Her husband was enraged and demanded that she leave his house, which “A” interpreted as a sign that he did not need her any longer. Her lawyers testified she was unhappy with his derogatory treatment of her, and as well as his previous comments that he “paid for” her. (He referred to the costly payment he made to the cross-border matchmakers.) She left him with her child to return to Vietnam three days later and withdrew some money from her husband’s bank account without his consent. Their son was about 13 months old at the time she left with him for Vietnam. In September 2008, two weeks after leaving for Vietnam, she returned to South Korea so that she could work to pay for childcare costs, while the toddler was cared for by her mother in Vietnam.

The televised hearing was especially timely because the Act Concerning Implementation of the Hague Convention on International Child Abduction had come into force just 20 days before. South Korea had accepted the Hague Convention on the Civil Aspects of International Child Abduction four months before its domestic law came to force. The Ministry of Justice explained the actions of “A” who left home unannounced (mudan gachul) and then left South Korea with her child in the context of the Hague Convention: it is a “multilateral treaty, which seeks to protect children from the harmful effects of abduction and retention across international boundaries by providing a procedure to bring about their prompt return.”

This case caught my attention for three reasons. First, the woman was criminally indicted for the charges of kidnapping a minor and trafficking in persons, severe offenses with a minimum prison sentence of three years. Although the prosecution used the Hague Convention on the Civil Aspects of International Child Abduction to support its indictment, the Convention concerns the civil aspects of international child abduction, as its title states. The majority opinion ultimately ruled that A did not commit an act that was criminally prosecutable and the criminal charge of kidnapping is excessive and disproportionate.

Second, it is not clear whether the South Korean ex-husband of the defendant ever wanted custody of the child or wished his return. When her ex-husband found the defendant working in South Korea, he reported her to the police, and she was arrested on April 16, 2010, for theft (for withdrawing money from her husband’s bank account without his consent earlier). Their divorce was settled on May 13, 2010, while the defendant was still in jail, with custody given to her by mutual agreement. She was released on bail on May 27, 2010. Their son remained in Vietnam until the end of the trial, almost three years after he left South Korea. The husband made no appeals to the court for his son’s return during the trials, and the justices (as well as the judges in the previous courts) agreed that the husband and his family were not in a circumstance to provide the intensive care necessary for a toddler. Her lawyers made a case that he never visited his son in Vietnam the last three years after he found the defendant.

Third, what repeatedly appears in the court hearings is the idea that a nation-state, rather than a father, has lost a South Korean citizen-child, and this requires criminal prosecution. While the child was born to a Vietnamese mother and a South Korean father, and his maternal relatives live in Vietnam, his South Korean identity was assumed and never questioned in any of the trials. The opposition statement rules the defendant’s conduct as “an illegal act that brought our national to a foreign country (uri gukmineul oegukeuro derigo gan) not in accordance with the process and method justified by the law.” Some justices expressed concerns during the hearing that the inability to speak “our language” and isolation from “our culture” could result in “psychological and mental shocks.” However, the child can hold multiple citizenships by lineage under South Korea’s Nationality Act; in other words, the defendant’s child is entitled to both South Korean and Vietnamese citizenships. Therefore, the court’s assumption of singular citizenship is technically incorrect. Taking a broader view of substantive citizenship, such an assumption is especially misguided given the cultural plurality of a transnational household.

Despite the non-guilty verdict of the defendant, this case was used to justify the Ministry of Justice’s campaign to “retrieve” “South Korean” children taken overseas by their foreign mothers. The Ministry of Justice (MOJ) and Korea Immigration Service (a subsidiary agency under the MOJ) have reinforced immigration rules to surveil and control foreign spouses on conditional visas. The rules were part of a broader measure to protect the “integrity” of cross-border families through immigration enforcement and surveillance on migrant spouses who leave their citizen spouses. However, such immigration measures pay little attention to its implications on family justice for cross-border families. Family breakdowns can cause hardships for family members, especially when it involves complex transnational mobility. Custodial arrangements and post-divorce settlement require individual attention to realize reconciliation for cross-border families. While immigration enforcement and criminal prosecution may be justified for the logic of “protecting the border” and “protecting the safety of citizens,” they hinder attempts to resolve unique issues of cross-border families.