Blog, Criminal

Sexual crimes are an act of sexual violence when consent is not obtained or willingly given. This is a serious concern not only in Korea, but the world at large. Survivors of sexual crimes often experience lifelong health and well-being struggles that affect their daily lives and the lives of those around them. What’s more, these types of crimes affect people of all genders, sexual orientations, racial backgrounds, and ages.

The perpetrator of a sexual crime is typically someone the victim knows. This can be anyone from a close friend to a former romantic partner. It may even be someone less involved in the victim’s personal life such as a co-worker or neighbour. It is important to remember, however, that there are countless cases of sexual violence where the perpetrator and victim have no former connection to one another.

Sexual Crimes in Korea

Sexual violence occurs in many different settings. One may experience it in person or through technology such as online harassment or even the sharing of sexual photos without the victim’s consent. Just because sexual violence may not happen in person, this does not make the situation any less serious. 

Unfortunately, Korea is not void of sexual crimes. There are several key types of sexual crimes that are important to take note of in order to receive the correct compensation, support, and post-care. In this article, we will introduce several laws regulating sexual crimes. Please read the following information carefully. If you have experienced or participated in a type of sexual violence that is not listed, please contact Seoul Law Group directly for personalized feedback. 

1. Rape, Imitative Rape, and Quasi-Rape 

Rape, imitative rape, and quasi-rape are forms of sexual violence that the definitions of have been drawing attention in Korean society over the past few decades. Let us examine each claim in further detail.

1.1 Rape (강간)

Rape is the crime of having sexual intercourse with another person by means of violence or intimidation. In order to establish “rape” as a crime, the following three requirements must be met.

First, there should be sexual intercourse, which means the insertion of a male genital into a female genital. This is important because it differentiates “rape” from other sexual crimes.

• If the perpetrator inserts a male genital into other parts of the body than a female genital, such as mouth or anus, it is not a “rape” but “imitative rape (유사강간)”
• If the perpetrator inserts other things than a male genital, such as fingers or tools, into a female genital, it is also “imitative rape (유사강간).”
• If the perpetrator touches the victim’s body but does not insert anything into a female genital, mouth, or anus, then it is an “indecent act by compulsion (강제추행).”

Second, any person can become a victim of rape. This looks obvious, but it is actually the part that has changed the most. Since the mid-1990s, many new legal principles and descriptions have changed to promote the welfare of victims in rape cases and to bring down harsher punishment on perpetrators.

• Before 2012, only “woman” could be the victim of rape, because it was considered that only women possessed female genitals. But since the technology developed, cases of transgender women (many of whom are still legally male) becoming rape victims have begun to emerge, so the law changed to define the rape victim as a “person” instead of a “woman.”
• Also, before 2012, the perpetrator’s wife could not be the victim of rape. This means that it was not “rape” if a husband rapes his wife, because long ago it was considered that husbands had marital rights to have sex with their wives. But as time passed that people’s thoughts changed, so now marital rape is also punished as “rape.”

Third, there should be violence or intimidation to make the victim’s protest significantly difficult.

• If the perpetrator used violence or intimidation but failed to have sexual intercourse (for instance, the victim managed to run away) then it is punished as “attempted rape (강간 미수).” The punishment gets cut in half in this situation.

Those who are found guilty of rape will be punished with imprisonment with labor for life or at least five years up to 30 years, according to the Article 297 of the Criminal Act. Also, there are a few additional provisions to punish the crime more severely if other elements are added.

• If the perpetrator carries any weapon or other dangerous object while raping, or they rape the victim jointly with other persons, they shall be punished by imprisonment with labor for life or for at least seven years.
• If the perpetrator breaks into the victim’s house and rapes the victim, they shall be punished by imprisonment with labor for life or for at least seven years.
• If the rape causes injury to the victim, the perpetrator shall be punished by imprisonment with labor for life or for at least five years.
• If the rape causes death to the victim, the perpetrator shall be punished by imprisonment with labor for life or for at least ten years.
• If the perpetrator rapes the victim and then murders them, they shall be punished by death or imprisonment with labor for life.

1.2 Imitative Rape (유사강간)

Imitative rape, as explained earlier, refers to a situation where a person inserts their sexual organs into another’s non-sexual body part, or inserts their finger or other things (excluding genitals) into another’s genital or anus, by means of violence or intimidation. 

Imitative rape is punishable by imprisonment with labor for a limited term of at least two years, according to Article 297-2 of the Criminal Act. Imitative rape tends to be judged less harshly than rape in Korean courts.

1.3 Quasi-Rape (준강간)

Quasi-rape is defined as sexual intercourse with another by taking advantage of the victim’s condition of unconsciousness or inability to resist. For example, quasi-rape may take place when the victim is under the influence of alcohol, unconscious, or under the influence of drugs.

The important thing is that “the victim’s condition of unconsciousness or inability to resist” should not be caused by the perpetrator. If the perpetrator intentionally drugs the victim to have sexual intercourse with them, then it is a common “rape,” not “quasi-rape.” The main factor of quasi-rape is that the perpetrator takes advantage of the situation when the victim is already in a state they cannot resist.

This type of crime, albeit with a different title, gets the same punishment as “rape” with the imprisonment period beginning at two years.

2. Indecent Act by Compulsion (Groping)

An “indecent act by compulsion (강제추행)’ is a term used in Korean law for groping. Groping is the intentional touching of another person in a sexual manner without consent. There are several subcategories of this crime, so please read the following information carefully.

2.1 Indecent Act

An indecent act is defined as groping: touching another person in a sexual manner.  Defining what a ‘sexual manner’ is can often face challenges in court. The Korean Supreme Court defines it as an act against the public sexual morals, objectively incurring sexual humiliation or disgust to normal people, and infringing the sexual self-determination of the victim which shall be judged based on the willingness, sex, and age of the victim, alongside their relationship with the assailant, details of the accident, objective circumstances, and contemporary social sexual morals. This definition is certainly long-winded and even cases of self-defence where a sexual body part is injured can be labelled as an “indecent act.” To avoid any confusion, reach out to Seoul Law Group for a more clear definition. 

2.2 Through violence or intimidation

The second element worth noting is the expression “through violence or intimidation.” For the completion of an Indecent Act, inflicted force does not have to be severe enough to nullify the resistance of the victim.

In certain cases, using force could be regarded as an indecent act in itself. For instance, if a person abruptly touches a woman’s breast and runs away, it is considered an “indecent act by compulsion” even though there is technically no violence or intimidation.

3. Sexual Harassment (성희롱)

“Workplace harassment (직장 내 괴롭힘)” and “sexual harassment in the workplace (직장 내 성희롱)” are treated very differently in Korean law. “Workplace harassment” is prohibited by the Labor Standard Act, while “sexual harassment in the workplace” is prohibited by the Equal Employment Opportunity and Work-Family Balance Assistance Act. The act defines “sexual harassment in the workplace” as follows:

Article 2 (Definitions): […] the term “sexual harassment in the workplace” means that an employer, a superior or an employee causes another employee to feel sexual humiliation or repulsion by sexual words or actions by utilizing a position in the workplace or in relation with duties, or providing any disadvantages in working conditions and employment on account of disregard for sexual words or actions or any other demands, etc.

As long as one is an employee, they can be the victim regardless of gender, age, and job status among other features. Common types of ‘sexual harassment in the workplace’ include but are not limited to kissing, hugging, inappropriate touching, massages, making sexual jokes or comments, asking about one’s sexual life, or intentionally speaking sexual information. The employer who commits sexual harassment in the workplace shall be punished with an administrative fine not exceeding five million won.

Meanwhile, if sexual harassment in the workplace is so severe that it amounts to the crime of an “indecent act by compulsion,” then the perpetrator gets punished by Article 10, Act On Special Cases Concerning The Punishment Of Sexual Crimes as below.

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.

(2) A person supervising a detained person according to the provisions of any Act commits an indecent act on such detained person shall be punished by imprisonment with labor for not more than five years or by a fine not exceeding 20 million won.

4. Crimes using Cameras

Along with the development of technology, new types of sexual crimes have emerged. This includes taking sexual photographs and videos, as well as their illegal distribution.  The 2011 Act On Special Cases Concerning The Punishment Of Sexual Crimes stipulates filming against the victim’s will as a sex crime and later included “distribution against one’s will”, “habitual filming”, and “false video products (deep fake).”

It is important to note that sexual crimes involving cameras do not require the victim to be naked or engaged in a sexual act. If the victim feels that any image or video taken of their person without consent was done in a sexual manner, they are liable to take the case to court as a sex crime. For instance, if the perpetrator films a woman’s thigh while sitting next to her on the bus, it is a crime of “taking videos by using cameras” and shall be punished by imprisonment with labor for not more than seven years or by a fine not exceeding 50 million won.

Even if the filming itself was not against the victim’s will, if the perpetrator distributes, sells, leases, provides, or openly exhibits or shows the photograph or video against the victim’s will, they get punished with the same punishment for filming against the victim’s will. So, if the perpetrator films the victim against their will and also distributes the photograph or video against their will, the filming and distributing are treated as separate crimes. If they make money off of the image or video, this may result in additional punishment. Lastly, those found keeping or sharing illegally filmed videos or images are also liable for punishment.

5. Sex Crimes against Minors

There are various types of sex crimes against minors, punishable by different standards, under Korean law. In Korea, it is regulated by the Act On The Protection Of Children And Youth Against Sex Offenses.

First, let us look over the “age of consent” in Korea. The ages of both the perpetrator and victim come into play. A person who has sexual intercourse or commits an indecent act on a victim under 13 years of age shall be punished under the charge of “Sexual Intercourse or Indecent Acts with Minor (미성년자에 대한 간음, 추행)”, even with the victim’s consent.

Meanwhile, a person 19 years of age or older who has sexual intercourse with a victim who is 13 years of age or older but under 16 years of age, also shall be punished under the charge of the same crime, even with the victim’s consent. So, 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. 

But all these charges are on the premise that the sexual intercourse was done consensually. It is completely another story if a child gets actually “raped” by violence or intimidation. As it should be, sex crimes against minors get punished much more severely than the same crimes against adults.

• If the perpetrator rapes a minor (a person under 19 years old) by means of violence or intimidation, shall be punished by imprisonment with labor for an indefinite term or for at least five years. If the victim is under 13 years of age, the lower limit of the sentence is increased to 10 years.
• If the perpetrator commits “imitative rape” to a minor by means of violence or intimidation, they shall be punished by imprisonment with labor for a limited term of at least five years. If the victim is under 13 years of age, the lower limit of the sentence is increased to seven years.
• If the perpetrator commits an “indecent act by compulsion” to a minor, they shall be punished by imprisonment with labor for a limited term of at least two years or by a fine of at least 10 million won, but up to 30 million won. If the victim is under 13 years of age, the perpetrator shall be punished by imprisonment with labor for a limited term of at least five years.
• If the perpetrator commits a “quasi-rape” or “quasi-indecent act by compulsion” to a minor, they shall be punished in the same manner as prescribed above.

Please note that all the charges and punishments above still apply when the perpetrator themselves are minors. Of course, minors usually get special treatment in the trial as a defendant, but that is the other story.

As always, it is important to discuss your unique situation in detail with one of our experts at Seoul Law Group. Whether you find yourself a perpetrator or victim of a sex crime, it is crucial to exercise your rights. To achieve the best possible outcome, a supportive lawyer with years of experience is necessary. This is where Seoul Law Group can help. Reach out to us through our website, phone, and in-person services.