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In Korean legal principles, sex crime can be mainly classified into four categories. 1) Rape, 2) Indecent Act, 3) Sexual Harassment, and 4) Other types of sex crimes such as taking pictures without consent. 

1. “Rape” is as we talked about in the former article, is defined as “an intercourse of a male genital into a female genital” If a male genital is inserted somewhere else than a female genital, or something that is not a male genital is inserted into female genital or anus, this shall consist “Imitative Rape.” 
2. “Indecent Act” is basically a groping. This is an act an intentional touching in a sexual manner without consent. 
3. “Sexual Harassment” is a sex crime without physical touch. This includes verbal harassment but is not limited to. Sexual harassment itself is not a crime – but when it is against a child or done publicly or is done on a job – shall be punished by other special acts. 
4. Other types of sexual crimes, which are mostly crimes using cameras or the internet.

Today, in this article we will discuss the second type of sex crime – the “Indecent Act”, and other deriving crimes stipulated in the Korean Criminal Act and Act on Special Cases Concerning the Punishment Of Sexual Crimes.

Indecent Act by Compulsion (Article 298)

Indecent Act by Compulsion (Article 298)

A person who, through violence or intimidation, commits an indecent act on another shall be punished by imprisonment with labor for not more than ten years or by a fine not exceeding 15 million won. <Amended on Dec. 29, 1995>

Article 298 of Korean Civil act stipulates that committing “1) an indecent act 2) by force or intimidation” shall consist of a crime. Let’s define an indecent act first. 

1. Indecent Act

What is an indecent act? This has been a long and still is a controversial question for decades in Korean Criminal Law. As we have mentioned above, an indecent act is a groping, a touch in a sexual manner. 

The problem with defining the indecent act is, again, a matter of defining ‘what is a sexual manner.’ The Korean Supreme Court approaches the concept of the indecent act in a very comprehensive way: An act against the public sexual morals, objectively incurring sexual humiliation or disgust to normal people, infringing the sexual self-determination of the victim, and that shall be judged based on the followings: willingness, sex, and age of the victim, the relationship between the assailant and the victim, details of the accident, objective circumstances, and contemporary social sexual morals.

You may wonder why the Korean Supreme Court is adopting such a complex and perplexing long definition. This way of approach may sound vague and abstract. The problem is that a lot of ‘sexual touches’ are not explicit. If you touch breasts, hips, or genitals without consent, that probably will be regarded as a “sexual touch” in Korea. The real problem rises with implicit touches. Such as, what about shoulders? Or necks? Or thigh? What if I tap someone’s shoulder to encourage, then would that be regarded as a crime? Or reversely, what if someone touches my shoulder with sexual intentions but tries to justify it like “it was just an encouragement?” Judgment on this area shall be done taking account of everything, not simply by the area of being touched. 

One more interesting principle is that the “intention of sexual satisfaction” is not required for the completion. Whether the assailant touched the victim for the satisfaction of oneself shall not be considered. Rather, the objective circumstance of the incident is more considered. For example, in the case of Supreme Court Decision, 2013Do5856, a victim had attacked the head of the assailant. The assailant, as revenge, had bitten the breasts and the nipples of the victim. The assailant argued that it was only to revenge, not for sexual satisfaction, but the Korean Supreme Court had judged that whether an act consists of an indecent act shall be determined by objective and social norms, not by the subjective intention of the assailant. 

2. By force or intimidation

The second element is “by force or intimidation.” While the literal description of the requirement is both “force” in the rape and indecent act, the meaning of “force” is quite different from the force in the “rape” and “indecent act.” In rape, the force should be enough to nullify the resistance of the victim. 

However, for the completion of an indecent act, the force does not have to be severe enough to nullify the resistance of the victim. Rather, in certain cases, using force itself could be regarded as an indecent act. In in the case of Supreme Court Decision, 2001Do2417, the Court had defined the “by force” as the following: The indecent act not only shall be completed by making it difficult to resist by force or intimidation and then touching a body but also by an assault that could be regarded as an indecent touching. In this case, the assault does not have to be enough to nullify the suppress the free will of the victim. According to the definition, an indecent act with a surprise – a sudden act of touching – shall also be regarded as an indecent act by force. 

Indecent Acts through abuse of Occupation Authority

Act On Special Cases Concerning The Punishment Of Sexual Crimes. 

Article 10 (Indecent Acts through Abuse of Occupational Authority)   

(1) A person who, through fraudulent means or by a threat of force, commits an indecent act on another person who is under his/her guardianship or supervision by reason of his/her business, employment, or other relationship shall be punished by imprisonment with labor for not more than three years or by a fine not exceeding 15 million won. <Amended on Oct. 16, 2018>

The crime of indecent act shall be completed not only by force or intimidation but also by fraudulent means(위계, we-gye) or by a threat of force(위력, we-ryuk). You may think of a supervisor in a job touching his or her juniors. Especially in Korea, where the Confucianism is still strong and influential, it is not easy to resist the orders and demands of the seniors, regardless of their right and wrong. This Article is to protect those who are in such conditions of business, job, or employment, therefore hard to defend themselves. 

Here, while the literal expression is “a threat of force,” includes various forms of forces such as social, economic, or political status and authority. The force could be either tangible or intangible and could be explicit or implicit. In some cases, certain forces even do not have to be exercised – for example, the authority over personnel affairs itself could be enough to suppress the victim’s free will. If the victim resists, then the person in power will fire the victim. 

Indecent Acts in Crowded Public Places

Act On Special Cases Concerning The Punishment Of Sexual Crimes. 

Article 11 (Indecent Acts in Crowded Public Places)    

A person who commits an indecent act on another person in any public transportation vehicle, place of public performance or assembly, or other crowded public place shall be punished by imprisonment for not more than three years or by a fine not exceeding 30 million won. <Amended on May 19, 2020>

A person who commits an indecent act on another person in crowded public places shall consist of an Indecent Acts in Crowded Public Places. This Article is to punish the assailant who uses crowded places as a means of nullifying the resistance. When there are a lot of people nearby, it is sometimes easy and better to resist, but sometimes it is even worse to resist. Being under a sexual assault is a traumatic, unpleasant, and sometimes very embarrassing and confusing experience. Especially in cases of open crowded places, the openness and crowdedness could be a weapon of the assailant. Therefore, Article 11 stipulates this type of indecent act as a crime, not requiring the use of force or intimidation. 

One interesting principle is that the “crowded public place” does not really have to a “crowded” place. The “crowded place” should be a place provided for the open use of the public, so that anyone could come in and out. It does not have to be a “currently crowded,” but more of a “crowd-able place.” Public transportations like a bus or a subway, a mart, or even a Korean dry sauna (찜질방, JJimjilbang) could be the place stipulated in this Article.

Conclusion

In this article, we have discussed the second type of sex crime – the indecent act. An indecent act is a physical touch on another in a sexual manner, and whether it was in a sexual manner or not should be determined based on almost everything regarding the circumstances, but not the “sexual intention” of the assailant. Moreover, some types of indecent acts do not require the use of force – sometimes the social authority itself could work as an intangible force. Or, the fear of the public eye could be a means of nullifying the resistance of the victim. 

Seoul Law Group has various experiences with sex crimes, either for the victim or the assailant. It is always better to get help from legal professionals, especially for sex crimes. Please do not hesitate to contact us.