Blog, Criminal

In the criminal law of Korea, “Rape (강간)” is defined as an act where, through assault or threat, one makes it difficult for the other party to resist and inserts their genitalia into the other party’s genitalia. Moreover, for the charge of “Inflicting or Causing Another’s Bodily Injury by Rape (강간 상해 또는 치상)” to be established, it presupposes the establishment of Rape.

Conversely, one might assume that if there is no insertion into the other party’s genitalia, then naturally, the charge of Inflicting or Causing Another’s Bodily Injury by Rape would not be established. 

However, this is not the case. The criminal law of Korea acknowledges the concept of “Attempts (미수)”, meaning that although Rape may not have been completed, the charge of Inflicting or Causing Another’s Bodily Injury by Rape can still be established.

The term “Attempt” refers to the situation where one has commenced the execution of a crime but has not completed the action, or even if the action is completed, the intended result does not occur. 

Hence, in the context of Rape, an Attempt would mean that despite assault or threat intended for Rape, the act does not result in the insertion of the perpetrator’s genitalia into the victim’s. Strictly speaking, an Attempt to rape is considered a preliminary stage to rape, distinguishing the two.

However, the criminal law of South Korea stipulates the following:

Article 297 (Rape)

A person who, by means of violence or intimidation, has sexual intercourse with another shall be punished by imprisonment for a limited term of at least three years.

 

Article 300 (Attempts)

Attempts to commit any of the crimes of Articles 297, 297-2, 298, and 299 shall be punished.

 

Article 301 (Inflicting or Causing Another’s Bodily Injury by Rape, etc.)

A person who commits any of the crimes of Articles 297, 297-2, and 298 through 300, thereby inflicting or causing the injury of a victim of such crime, shall be punished by imprisonment for life or for at least five years.

Thus, the criminal law of Korea, through its penal provisions, includes in the definition of Inflicting or Causing Another’s Bodily Injury by Rape not only completed Rape but also Attempts to Rape.

The Supreme Court of Korea has also adjudged that “in cases of rape, the assault or threat must be of a nature that significantly hinders the victim’s resistance, and even if it is an attempted case, if the victim has suffered injuries due to the assault that was a means to the rape, then the charge of rape resulting in injury can be established.” (Supreme Court Decision 88Do1628, November 8, 1988)

Why are even attempted cases subject to punishment? This can be justified on the grounds that the criminal intent has been externalized, undermining the public’s trust in the legal order, or because there is a high likelihood of resulting harm, or whether completed or attempted, the criminal intent is the same.

What is important to note is that whether or not epithelial cells from the perpetrator remain in the victim’s body, leaving no evidence of insertion, or indeed if the perpetrator’s genitalia were not inserted into the victim’s, considering the circumstances before and after and the remaining evidence, it can be still judged as an Attempt to rape. If, in this process, the victim has been injured, then it can ultimately be judged as Inflicting or Causing Another’s Bodily Injury by Rape.

Therefore, “You shall not commit adultery.” 

Also, “You shall not even attempt to commit adultery.”