Blog, Criminal

Children must be protected. Children may not have enough judgment or strength when compared to adults. They have a high probability of being in an unfavorable position or situation. Therefore, South Korean Laws provide some special safeguards to protect minors better. One way is to set an additional punishment for already existing crimes such as rape or indecent act. The second way is to enact a new set of components of crimes so that crimes against minors shall be punished. 

In this article, we are going to overview certain Articles that stipulate a new set of components of crime. It is important to know what consists of a crime and what does not. 

Criminal Act, Article 305 – Statutory Rape and Indecent Acts with Minor

Criminal Act, Article 305 (Sexual Intercourse or Indecent Acts with Minor)

(1) A person who has sexual intercourse with or commits an indecent act on another who is under 13 years of age shall be punished under Article 297, 297-2, 298, 301, or 301-2. <Amended on Dec. 29, 1995; Dec. 18, 2012; May 19, 2020>

(2) A person 19 years of age or older who has sexual intercourse with or commits an indecent act on another who is 13 years of age or older but under 16 years of age shall be punished under Article 297, 297-2, 298, 301, or 301-2. <Newly Inserted on May 19, 2020>

Articles regarding rape have a loophole. Fundamentally, it requires violence or intimidation for the completion of a crime. This may lead to a conclusion that, if violence or intimidation is not involved in sexual intercourse, then it is not rape. Moreover, as minors are young and immature so do not have enough capability of defending themselves, so some may want to take advantage of this loophole and make excuses such as, “they wanted this,” “we love each other,” or “the victim did not refuse (so I thought we had an agreement).” At this point, the “statutory clause” comes to plug up the hole. 

First, what does “statutory” mean? It means that your actions shall be legally “deemed” as something other, regardless of what really happened. Moreover, “deemed” in this context does not accept any refutation (in case of being “presumed,” you shall be presumed as something other without any proof, but you can overturn the presumption by proof). 

In Article 305 (1), if you have sexual intercourse with a person who is under 13 years old, your action of sexual intercourse shall be deemed as rape. 

There are a few solid reasons for this Article. 

1) At the age of 13(international age, not “Korean age”), the victim must be at a middle school in 2nd grade in Korea or under. From the perspective of Korean law, children of this age are too young and immature to understand the meaning of sexual intercourse and other similar acts. 

2) As we have mentioned above, this is to plug up a loophole. Children of that age are too young to defend themselves and exercise the right of sexual self-determination. 

In addition to this, there is Article 305 (2), which is quite an interesting clause. This clause stipulates 1) an adult over 19 years old 2) having sexual intercourse or acting indecently as a crime. According to this article, if you are over 16 years but under 19 years old, then it is not a crime to have sex with a person who is over 13 but under 16 years old. However, if you are an adult over 19 years old, you shall not have a sexual relationship with a person under 16 years old. The presumption of this Article is that, between an adult and a minor from 13 to 16, there is a huge gap in power, intelligence, and others so special protection of statutory protection is required. 

Recently, there was an incident of university students and graduates together raping a middle school student in 2021. As this was a recent issue, we do not know the exact details regarding the incident. However, regardless of the involvement of violence or intimidation, as the assailants were over 19 years old and the victim was only a middle school student (which means that the victim must be under 16 years old), this act of having sexual intercourse with a minor shall fall under Article 305 (2), therefore be deemed as statutory rape. 

Sexual Intercourse with Minor, etc. – Using fraudulent or threat of force

Criminal Act, Article 302 (Sexual Intercourse with Minor, etc.)

A person who, through fraudulent means or by the threat of force, has sexual intercourse or commits an indecent act on a minor or feeble-minded person, shall be punished by imprisonment with labor for not more than five years.

For the case of adults, basically, only sexual intercourse using violence or intimidation shall complete a crime. However, there are exceptional cases where having sexual intercourse using other methods is acknowledged as a crime: sexual intercourse by abuse of occupational authority. In these cases, fraud or threat of authority shall also be regarded as a method of crime. 

A similar principle is applied to the cases of minors. When a minor is a victim, the method of crime does not always have to be violence or intimidation, but it could also be fraud or threat of authority. 

Recently, there was a Supreme Court decision regarding the interpretation of “fraud.” In the past, “fraud” only meant fraud about the sexual intercourse itself. Therefore, the victim must be unable to understand the meaning or act of the sexual intercourse, like, fraud as if it is a treatment or something. However, the supreme court reversed the principle recently in en banc 2015Do9436 Decided on August 27, 2020. According to the decision, the fraud could also be ones regarding the “incentive associated with the sexual intercourse,” both monetary and non-monetary incentives. In other words, if you deceive a minor to have sexual intercourse that you would pay a certain amount of money, but you don’t, that shall also complete a crime of rape using fraudulent means. 

Sexual Harassment

Surprisingly, verbal sexual harassment is not stipulated in the Criminal Act nor the Sexual Violence Prevention And Victims Protection Act. However, in certain situations, verbal sexual harassment shall complete a crime. The first is in the case of relationships between employees and others. Equal Employment Opportunity And Work-family Balance Assistance Act Article 12 stipulates sexual harassment in the job or business as a crime. 

The second situation is between an adult and a minor. This is stipulated in Child Welfare Act (아동복지법). 

Child Welfare Act, Article 17 (Prohibited Acts)    

No person shall engage in any of the following conduct: <Amended on Jan. 28, 2014>

1. 1. 2. Having a child engage in lewd acts or arranging such acts, or committing sexual harassment or sexual abuse against a child that may make him or her feel sexually ashamed;

Child Welfare Act, Article 71 (Penalty Provisions)    

(1) Any person who violates Article 17 shall be punished as follows: <Amended on Dec. 18, 2012; Jan. 28, 2014; Oct. 24, 2017>

1-2. A person who commits an act falling under subparagraph 2 shall be punished by imprisonment with labor for not more than 10 years or by a fine not exceeding 100 million won;

According to Child Welfare Act, anyone who engage in lewd acts or arranges such act or commit sexual harassment or sexual abuse against a child(= a person under 18 years old) shall fall under Article 17 2 and Article 71 (1) 1-2. For the ”sexually ashamed” clause, it does not have to be “shame” only but could be various feelings such as rage or disgust. 

Conclusion

In this article, we have discussed original sex crime laws stipulating crimes against minors. The summary for having sexual intercourse with a minor shall be a diagram of the following. 

Age of the victim	Condition for completion of a crime
Under 13	Always completes a crime
Over 13 Under 16	When the perpetrator is over 19
Over 16 Under 18	When violence or intimidation involvedWhen through fraudulent means or by the threat of force

Moreover, sexual crimes against children or minors shall be additionally punished. The degree of additional punishment differs from Article to Article, so there would be another chance to go over such additional punishment clauses. 

Seoul Law Group has various experiences with sex crimes against minors. Please do not hesitate to contact us.