Blog, Criminal

Starting from this article, we plan to go over the laws regulating sexual crimes. Sex crime laws in South Korea is one of the most elaborately subdivided areas of law. Overviewing the whole regulations may take some time, but it is worth the time and energy. 

This area of law and legal principles has been drawing attention in South Korean society for the last few decades. The laws regarding sexual crimes, in the beginning, were laws to protect the “chastity” of women. The title of Chapter 32 of Criminal Act was “Crimes concerning the chastity.” However, starting from the 90s, the perception of society against sexual crime has changed from a matter of chastity to a matter of sexual self-determination. The title of Chapter 32 also has changed to the current title, “Crimes concerning rape and infamous conduct” in 1995. Laws and their literal descriptions have changed, and legal principles have also changed. A few more special acts were enacted for extensive protection and additional punishment. 

For instance, in 2020, Criminal Act, Article 305 (2) was newly established, stipulating a deeming clause for sexual assaults against legal minors. According to Article 305 (2), if you are over 19 years old, and you had sexual intercourse with a victim who is over 13 years but under 16 years old, you shall be deemed as a rapist, regardless of the usage of violence or threat. This is the effect of the deeming clause. We are going to discuss the deeming clauses and sexual assault against legal minors in the other article.

Sex Crime Laws in Korea

Here, we are going to discuss the most basic form of a sex crime, the ”rape.” 

1. Rape

Article 297 (Rape)

A person who, by means of violence or intimidation, has sexual intercourse with another shall be punished by imprisonment with labor for a limited term of at least three years. <Amended on Dec. 18, 2012>

Article 297 of Criminal Act is the most basic form of a sex crime in Korean Law. According to Article 297, a person 1) by means of violence or intimidation 2) having sexual intercourse with 3) another consists of a crime “rape.” Explanations for each element as follows. 

1) By means of violence or intimidation

For the completion of a “rape,” there must be violence or intimidation. Regarding violence or intimidation, the Korean Court generally has a stance of the “narrowest view,” requiring the violence or intimidation to be severe enough to neutralize the resistance of the victim or for the victim to be almost impossible to resist. Reversely saying, if the victim had enough chance to resist the attack, then it shall not complete the legal definition of “rape.” 

2) Sexual intercourse 

For the completion of a ”rape,” there should be sexual intercourse. The sexual intercourse in Article 297 only refers to a combination of sexual genitals, specifically heterosexual. When a male sexual genital is inserted into a female sexual genital, the legal “sexual intercourse” is completed. You may feel this definition is quite exclusive to homosexual intercourse, but there is another regulation for such cases. It will be discussed later in this article. 

3) Another

For the completion of rape, the sexual assault should be against “another person.” This may sound odd to focus on “person”, but this expression of Article 297 has a quite significant meaning. 

When Korean Criminal Act was first enacted in 1953, the object of sexual crime was women only. Therefore, it was impossible to legally rape or sexually harass “a man” back in the time. Only after 2012, regardless of gender, sexual assault against anyone become the object of rape and other sexual crime. 

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 with labor for life or for at least five years. <Amended on Dec. 18, 2012>

[This Article Wholly Amended on Dec. 29, 1995]

Moreover, if an injury was inflicted by the commitment of rape, then the criminal shall be punished in accordance with Article 301. The Article itself is not special, but what is important here is the jail term, which shall be at least 5 years, and at most for life. Injury by rape is one of the most harshly punished crimes in Korean Criminal Law. 

2. Imitative Rape

Article 297-2 (Imitative Rape)

A person who, by means of violence or intimidation, inserts his or her sexual organ into another’s bodily part (excluding a genital organ), such as mouth or anus, or inserts his or her finger or other bodily part (excluding a genital organ) or any instrument into another’s genital organ or anus shall be punished by imprisonment with labor for a limited term of at least two years.

[This Article Newly Inserted on Dec. 18, 2012]

As explained above, only “from genital to genital” shall complete a crime of “rape.” As a result, “from not genital to genital” or “from genital to not genital” were not regarded as a form of “rape,” but only regarded as sexual harassment. Only after 2012, did this form of sexual crime come to have their own category as an “imitative rape,” therefore be punished harsher than just sexual harassment. 

3. Quasi-Rape

Article 299 (Quasi-Rape, Quasi-Indecent Act by Compulsion)

A person who has sexual intercourse with another or commits an indecent act on another by taking advantage of the other’s condition of unconsciousness or inability to resist shall be punished in accordance with Article 297, 297-2, or 298. <Amended on Dec. 18, 2012>

Article 299 stipulates the cases of rape and harassment (indecent by compulsion) not using violence or intimidation but using the condition of unconsciousness or inability to resist. As this type of crime already requires the condition of irresistibility, violence or intimidation is not required. 

For example, if you have sexual intercourse with a drunk person who is unable to resist because of alcohol, you shall be punished by Article 299. The victim may be either drunk, unconscious, or under influence of date rape drugs such as GHB (Gamma Hydroxybutyric acid, or Mul-bbong in Korean slang), or whatsoever. 

This kind of crime is punished equally as the “normal rape.” The rapist shall be punished in accordance with Article 297 or 297-2, and the imprisonment period is “at least three years” and “at least two years” respectively. 

4. Attempts

Article 300 (Attempts)

Attempts to commit any of the crimes of Articles 297, 297-2, 298 and 299 shall be punished. <Amended on Dec. 18, 2012>

Attempts to commit rape, imitative rape, and quasi-rape are all punishable according to Article 300. When a crime is attempted but not finished, then the prison term shall be cut into half according to Article 25 (2) and Article 55 (1). 

What is so important here is that if your attempts to “rape” itself were not completed but if you have injured the victim, then you shall be punished in accordance with Article 301. As mentioned above, the jail term for Article 301 is at least 5 years and at most a lifetime. 

Conclusion

We have discussed the different types of rape and other derivatives in this article. Rape, imitative rape, quasi-rape, bodily injury by rape, and attempts of rape are the ones we went over. They all are regarded as a felony, and the committers shall be punished harshly. 

As sex crimes are harshly punished, defending effectively and rightly is very important. Especially for sex crimes, legal assistance by law professionals from the beginning of an investigation is critical. Seoul Law Groups has various experiences with sex crimes either for the victims or the defendants, so please do not hesitate to contact us.