A foreigner with US nationality was arrested by South Korean police on allegations of secretly filming a Korean woman’s buttocks with his mobile phone camera, but he ultimately received a suspension of indictment, thanks to the efforts of the criminal defense lawyer at the Lee & Lee Lawfirm who defended him against the sexual violence accusation.
1. Why Mr. A, a Foreigner, was Arrested and Nearly Prosecuted for Illegal Filming Charges
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This is the case of Mr. A, an American, who was partying with friends at a club in Itaewon, Seoul, where he used his mobile phone camera to secretly film the buttocks of B, a Korean woman who was dancing in front of him. He was subsequently arrested by the police and his case was handed over to the prosecution after B reported him.
Mr. A was charged with an offense under the “Act On Special Cases Concerning The Punishment Of Sexual Crimes” (taking photos/videos of another person’s body against their will, with a camera or similar, or distribution of such photos/videos taken, etc)”. This was a serious offense that could result in imprisonment in a Korean prison if he was found guilty. The statute that was at the center of this case is as follows:
| ACT ON SPECIAL CASES CONCERNING THE PUNISHMENT OF SEXUAL CRIMES | |
| Article 14 (Taking Photographs or Videos by Using Cameras) | (1) A person who takes photographs or videos of another person’s body, which may cause any sexual stimulus or shame against the will of the person who was shot, by using a camera or other mechanism that has functions similar thereto, shall be punished by imprisonment with labor for not more than seven years or by a fine not exceeding 50 million won. |
In this case, a legal debate erupted on whether making a ‘video call’ constituted the criminal offense of illegal ‘recording’(몰카, Molka). The South Korean Supreme Court’s ruling became notable, stating that although a video call is not saved to the phone’s gallery, it still constituted a criminal offense of ‘recording’, based on the fact that technically, the video data is still temporarily stored on the RAM of the other caller’s phone.
While laws on sexual offenses vary from country to country, the range of what constitutes a sexual offense, especially when it comes to “taking a sexual photograph or video,” has been the subject of controversy and legal debate in several legal cases in Korea.
Let’s say somebody secretly filmed someone’s buttocks against their will and got caught, but failed to actually save the recording. Is it still considered a sexual offense that is prohibited and subject to strict punishment under Korean criminal law? The answer is yes. The Korean Supreme Court ruled that it is still a ‘recording’ against the other person’s will because the technology of cell phones and electronic devices temporarily stores data in the device’s RAM the moment you press the recording button.
But what if you secretly take a photo or video of someone who is not nude or exposing their skin, but whose body or body parts are emphasized by the clothes they are wearing? This may or may not be considered a crime. A photo or video can convey the perspective or view of the person taking it. If it can be determined that the photo or video conveys the sexual humiliation of the person being filmed, to the viewer or to the person secretly taking it, it is considered a sexual offense.
Since the standard of evaluating this will differ from person to person, this is a controversial area, along with cases of defamation or insult, where the crime is determined by assessing how an act or expression might make people feel.
The Act On Special Cases Concerning The Punishment Of Sexual Crimes states that one shall not record another person’s body parts without their permission and that doing so may constitute a sexual offense.
Under Korean law, Mr. A was facing up to seven years in prison based on his charges, so he knew he needed a good legal defense in Korea, that could effectively defend him against his charges. As a foreigner, he sought out an English-speaking criminal defense lawyer in Seoul and ultimately decided to retain our criminal law specialist attorney for his case.
2. Defense Strategy of an Expert Lawyer for Sexual (Violence) Crimes involving Foreigners
Our sexual crime defense lawyer presented a strong, and ultimately effective, defense for our client A.
Our lawyer used several defense tactics against the illegal filming charges, such as asserting to the prosecution that the suspect, Mr. A, has admitted his guilt and expressed his sincere remorse, that he had never committed any similar offenses in Korea prior to this incident, and that with the help of his attorney, he had made proactive efforts with to negotiate a settlement with the victim B, which resulted in B’s decision not to seek punishment for Mr. A.
Our attorney also emphasized the fact that the reason behind Mr. A’s filming was to give his friends and family back in the United States an ‘image’ of how he was enjoying himself, partying in Korea, which resulted in him filming the victim B.
In the end, the Korean prosecutor decided to suspend the indictment against Mr. A, and our lawyer succeeded in having the case concluded without our client receiving any legal punishment.
A sexual offense is a serious crime that serves as justifiable grounds for Korean Immigration to issue a deportation order. Even if you have not received any legal punishment, you may still be summoned to attend an evaluation by the Korean Immigration Office to determine whether a visa extension will be granted or whether you will be ordered to leave Korea, if you have been under investigation for committing a sex crime here. Therefore, it is advisable for expats in Korea to seek legal counsel to effectively respond to these additional measures and legal challenges experienced by foreign nationals.
