Uncovering the essential legal information, you need to know as a foreigner in Korea, we explain the recourse available for victims of sexual violence and how Law firm Lee & Lee can guide you through the complex Korean legal system.
Sex crimes are not a problem that only occurs in Korea. Despite the existing measures to eradicate sexual crimes, sexual crimes have not decreased. However, if you become a victim of a sexual crime in Korea, your pain may be worse than usual because Korea will be a foreign country to you, and since judicial procedures are not conducted in English or in your language, you will find it difficult to get relief from damages. So LEE&LEE Law office, here we are, has prepared a guide for you just in case.
What is Sexual Violence?
Table of Contents
- What is Sexual Violence?
- Sex Crimes in Korea
- Sexual Violence Crime Punishment in Korea: Prosecution/Sentencing suspended, Fine, years of Imprisonment to a life sentence.
- Factors mitigate the punishment for sexual crime: Settlement, Restitution, etc
- Sexual Harassment and Punishment
- Sexual Intercourse by Abuse of Occupational Authority
- Victims’ Rights in Sex Crimes in judicial procedures, & Procedures Guide for sexual violence victim
In Korea, sexual violence is a physical coercive force that causes physical and mental damage to others through sexual acts. South Korea regulates and punishes sex crimes in the 1) Criminal Act, 2) Special Act on the Punishment of Sexual Violence Crimes, 3) Information and Communications Network Act (For online sexual offenses), and 4) Act on the Protection of Children and Adolescents from Sex.
Sex Crimes in Korea
Below are the major sex crimes that are frequently committed in Korea.
Sexual Offense in Korean Criminal Act
Public Indecency
(Korean Criminal Act, Article 245)
A person who publicly commits an obscene act shall be punished by imprisonment with labor for not more than one year, a fine not exceeding five million won, detention, or a minor fine.
It’s one of the most frequent sexual offenses in Korea, under the chapter of CRIMES CONCERNING SEXUAL MORALS, Korean Criminal Act.
Rape
(Korean Criminal Act Article 297)
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.
Imitative Rape
(Korean Criminal Act Article 297-2)
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.
Indecent Act by Compulsion
(Korean Criminal Act 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.
Quasi-Rape, Quasi-Indecent Act by Compulsion
(Article 299)
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.
Inflicting or Causing Another’s Bodily Injury/Killing or Causing Death by Rape
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 an indefinite term or for at least five years
A person who commits any of the crimes of Articles 297, 297-2, and 298 through 300 and kills a victim of such crime shall be punished by death or imprisonment with labor for an indefinite term. If the commission of such crime results in the death of the victim, the perpetrator shall be punished by imprisonment with labor for an indefinite term or for at least ten years.
.
Sexual Intercourse with Minor
(Korean Criminal Act Article 302)
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.
Statutory Rape: Sexual Intercourse or Indecent Acts with Minor
(Korean Criminal Act, Article 305)
(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
(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.
This offense is commonly known as ‘Statutory Rape’.
Habitual Offenders
A person who habitually commits any of the sexual crimes shall be punished by aggravating the penalty by up to one-half of the penalty specified for the crime committed.
Attempt to rape, etc.
Attempts to commit any of the crimes of the Articles above shall be punished.
Sexual Offense in Act On Special Cases Concerning The Punishment Of Sexual Crimes
Special Robbery and Rape
(Special act on Sexual Crimes Article 3)
(1) A person who commits a crime prescribed in Article 297, 297-2, 298, or 299 of the Criminal Act in the course of committing a crime under Article 319 (1), 330, 331, or 342 (limited to an attempt to commit a crime under Article 330 or 331) of the same Act shall be punished by imprisonment with labor for an indefinite term or for at least seven years.
(2) A person who commits a crime prescribed in Article 297, 297-2, 298, or 299 of the Criminal Act in the course of committing a crime under Article 334 or 342 (limited to an attempt to commit a crime under Article 334) of the same Act shall be punished by death or by imprisonment with labor for an indefinite term or for at least 10 years.
Aggravated Rape
(Special act on Sexual Crimes Article 4 )
(1) A person who commits a crime prescribed in Article 297 of the Criminal Act, carrying any weapon or other dangerous object or jointly with any other persons, shall be punished by imprisonment with labor for an indefinite term or for at least seven years.
(2) A person who commits a crime prescribed in Article 298 of the Criminal Act in the manner as prescribed by paragraph (1) shall be punished by imprisonment with labor for a limited term of at least five years.
(3) A person who commits a crime prescribed in Article 299 of the Criminal Act in the manner prescribed by paragraph (1) shall be punished according to the provisions of paragraph (1) or (2).
Rape through Abuse of Consanguineous or Marital Relationship
(Article 5)
(1) A person who, through violence or intimidation, has sexual intercourse with another person in a consanguineous or marital relationship shall be punished by imprisonment with labor for a limited term of at least seven years.
(2) A person who, through violence or intimidation, commits an indecent act on another person in a consanguineous or marital relationship shall be punished by imprisonment with labor for a limited term of at least five years.
(3) A person who commits a crime prescribed in Article 299 of the Criminal Act on another person in a consanguineous or marital relationship shall be punished according to the provisions of paragraph (1) or (2).
(4) The scope of persons in a consanguineous or marital relationship referred to in paragraphs (1) through (3) shall be limited to relatives by blood or marriage within the fourth degree or residing together.
(5) A consanguineous or marital relationship under paragraphs (1) through (3) shall include a de facto relationship.
Rape of, or Commission of Indecent Acts by Compulsion on, Persons with Disabilities
(Special act on Sexual Crimes Article 6)
(1) A person who commits a crime prescribed in Article 297 of the Criminal Act on another person with a physical or mental disability shall be punished by imprisonment with labor for an indefinite term or for at least seven years.
(2) A person who, through violence or intimidation, commits any of the following acts on another person with a physical or mental disability shall be punished by imprisonment for a limited term of at least five years:
- Inserting the genitals into the inner part of the other person’s body (excluding genitals), such as the mouth or anus;
- Inserting a part of the body (excluding genitals), such as fingers, or implements into the other person’s genitals or anus.
(3) A person who commits a crime prescribed in Article 298 of the Criminal Act on another person with a physical or mental disabilities shall be punished by imprisonment with labor for a limited term of at least three years or by a fine of at least 30, but not more than 50 million won.
(4) A person who has sexual intercourse with or commits an indecent act on another person by taking advantage of the latter’s condition of inability to resist or difficulty in resisting due to physical or mental disability shall be punished according to the provisions of paragraphs (1) through (3).
(5) A person who, through fraudulent means or by a threat of force, has sexual intercourse with another person with a physical or mental disability shall be punished by imprisonment for a fixed term of at least five years.
(6) A person who, through fraudulent means or by a threat of force, commits an indecent act on another person with a physical or mental disability shall be punished by imprisonment with labor for a limited term of at least one year or by a fine of at least 10, but not more than 30 million won.
(7) If the head or a staff member of a facility for the protection, education, etc. of persons with disabilities commits any of the crimes listed in paragraphs (1) through (6) on a disabled person who is under his/her protection or supervision, the penalty shall be raised by up to 1/2 of the prescribed one.
Rape of, or Commission of Indecent Acts by Compulsion on, Minors under Age of 13
(Article 7)
(1) A person who commits a crime prescribed in Article 297 of the Criminal Act on a minor under the age of 13 shall be punished by imprisonment with labor for an indefinite term or for at least 10 years.
(2) A person who, through violence or intimidation, commits any of the following acts on a minor under the age of 13 shall be punished by imprisonment with labor for a limited term of at least seven years:
- Inserting the genitals into the inner part of the minor’s body (excluding genitals), such as the mouth or anus;
- Inserting a part of the body (excluding genitals), such as fingers, or implements into the minor’s genitals or anus.
(3) A person who commits a crime prescribed in Article 298 of the Criminal Act on a minor under the age of 13 shall be punished by imprisonment with labor for a limited term of at least five years.
(4) A person who commits a crime prescribed in Article 299 of the Criminal Act on a minor under the age of 13 shall be punished according to the provisions of paragraphs (1) through (3).
(5) A person who, through fraudulent means or by a threat of force, has sexual intercourse with or commits an indecent act on a minor under the age of 13 shall be punished according to the provisions of paragraphs (1) through (3).
Bodily Injury Associated with, or Resulting from, Rape
(Article 8)
(1) A person who inflicts a bodily injury on another person in the course of committing a crime prescribed in Article 3 (1), 4, 6, 7, or 15 (limited to an attempt to commit a crime under Article 3 (1), 4, 6, or 7), or leads to a bodily injury on another person by committing such crime, shall be punished by imprisonment with labor for an indefinite term or for at least 10 years.
(2) A person who inflicts a bodily injury on another person in the course of committing a crime prescribed in Article 5 or 15 (limited to an attempt to commit a crime under Article 5), or leads to a bodily injury on another person by committing such crime, shall be punished by imprisonment with labor for an indefinite term or for at least seven years.
Murder Associated with Rape, or Rape Resulting in Death
(Article 9 )
(1) A person who murders another person in the course of committing a crime prescribed in any of Articles 3 through 7 and 15 (limited to an attempt to commit a crime under any of Articles 3 through 7) of this Act or a crime prescribed in any of Articles 297, 297-2, and 298 through 300 of the Criminal Act shall be punished by death or imprisonment with labor for an indefinite term.
(2) A person who commits a crime prescribed in Article 4, 5, or 15 (limited to an attempt to commit a crime under Article 4 or 5), thereby causing the death of another person, shall be punished by imprisonment with labor for an indefinite term or for at least 10 years.
(3) A person who commits a crime prescribed in Article 6, 7, or 15 (limited to an attempt to commit a crime under Article 6 or 7), thereby causing the death of another person, shall be punished by death or by imprisonment with labor for an indefinite term or for at least 10 years.
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>
(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. <Amended on Oct. 16, 2018>
Indecent Acts in Crowded Public Places
(Article 11)
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>
Intrusion upon Publicly Used Places with Intent to Satisfy Sexual Urges
(Article 12)
A person who intrudes upon any publicly used place used by many and unspecified people including a toilette, public bath, bathroom, sweating room, breast-feeding facilities, and dressing room, or who refuses to leave such a place upon demand, with intent to satisfy his/her own sexual urges, shall be punished by imprisonment with labor for not more than one year or by a fine not exceeding 10 million won.
Obscene Acts by Using Means of Communication
(Article 13)
A person who sends another person any words, sounds, writings, pictures, images, or other things that may cause a sense of sexual shame or aversion by telephone, mail, computer, or other means of communication, with intent to arouse or satisfy his/her own or the other person’s sexual urges, shall be punished by imprisonment with labor for not more than two years or by a fine not exceeding 20 million won.
Taking Photographs or Videos by Using Cameras
(Article 14)
(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 which 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.
(2) A person who distributes, sells, leases, provides, or openly exhibits or shows (hereinafter referred to as “distribution, etc.”) a photograph taken under paragraph (1) or its duplicate (including a duplicate of its duplicate; hereafter in this paragraph, the same shall apply) or a person who makes the distribution, etc. of a photograph or video taken under paragraph (1) or its duplicate against the will of the person shot after the photograph or video taken under paragraph (1) was not against the will of the person shot (including a person who takes his/her body himself/herself) as at the time such photograph or video was taken, shall be punished by imprisonment with labor for not more than seven years or by a fine not exceeding 50 million won.
(3) For the purpose of making profits by using an information and communications network (hereinafter referred to as “information and communications network”) referred to in Article 2 (1) 1 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, a person who commits a crime under paragraph (2) against the will of a person shot, shall be punished by imprisonment with labor for a limited term of at least three years.
(4) A person who possesses or has seen or purchased the photograph or its duplicates referred to in paragraph (1) or (2) shall be punished by imprisonment with labor for not more than three years or by a fine not exceeding 30 million won.
(5) A person who habitually commits any of the crimes provided for in paragraph (1) through (3) shall be aggravatingly punished by up to 1/2 of the punishment for each crime.
‘Deep Fake on Sexual contents’: Distribution of False Video Products
This provision was newly enacted in 2020 following advances in deep fake technology. It is to punish the creation and distribution of photos or videos that can feel sexually shameful.
(Article 14-2)
(1) A person who edits, synthesizes, or processes photograph, video, or audio (hereinafter referred to as “photograph, etc.” in this Article) targeting the face, body or voice of a person for the purpose of dissemination, etc, in a form that may cause sexual desire or shame against the will of the person who is subject to video,etc. (hereinafter referred to as “editing, etc.” in this Article), shall be punished by imprisonment with labor for not more than five years or a fine of not more than 50 million won.
(2) A person who has published, etc. a compilation, composite, or processed product (hereinafter referred to as “compilation, etc.” in this paragraph) or a editing, etc. (including a duplicate of a duplicate; hereinafter the same applies in this paragraph) under paragraph (1), or even if it is not contrary to the intention of the person subject to the video material, etc. at the time of editing, etc. under paragraph (1), a person who dismisses the edited material, etc. against the intention of the person subject to the video material, etc. after the death, shall be punished by imprisonment with labor for not more than five years or by a fine not exceeding 50 million won.
(3) A person who commits a crime under paragraph (2) by means of information and communications networks against the will of the person subject to video works, etc. for the purpose of making profits shall be punished by imprisonment with labor for not more than seven years.
(4) A person who habitually commits any of the crimes provided for in paragraph (1) through (3) shall be aggravatingly punished by up to 1/2 of the punishment for each crime.
Intimidation or Compulsion by Using Photograph, etc.
Even if it is a sexual photo or video taken with the other person’s consent, if you use it to force or threaten the other person to do something you don’t want, you will be punished. Under the Korean Criminal Code, punishment is more severe than general intimidation.
(Article 14-3)
(1) A person who intimidates another person by using photograph or its duplicates (including a duplicate of the duplicate) which may cause sexual desire or shame shall be punished by imprisonment for a limited term of at least one year.
(2) Any person who interferes with the exercise of a person’s right by intimidation under paragraph (1) or has the person to the work not obligatory for him/her shall be punished by imprisonment with labor for a limited term of at least three years.
A person who habitually commits a crime specified in Article 1 or 2 shall be punished by aggravating the punishment for such crime by up to 1/2 of the pending punishment thereon.
Sexual Violence Crime Punishment in Korea: Prosecution/Sentencing suspended, Fine, years of Imprisonment to a life sentence.
The level of punishment differs depending on the type of sexual offense committed. Overall, depending on the alleged crime, even if it is a sex crime, there are cases where the prosecution is suspended without being indictment lightly. Or, as a result of the summary indictment, or trial, a light sentence of a fine of 5 million won or less may be punished with a heavy punishment of 10 years or life imprisonment.
Factors mitigate the punishment for sexual crime: Settlement, Restitution, etc
There are various reasons that affect the punishment of sexual offenses.
1) Is it a first-time offender?
2) Does the victim want the perpetrator to be punished?
3) Is the nature of the crime bad?
4) Is there an agreement, or reimbursement/restitution for the damage? Etc.
5) Is there any chance that the perpetrator will not repeat the same mistake in the future?
And so on.
Facts directly related to the level of punishment are sometimes actively submitted to investigative authorities and judges by criminal defense lawyers. Any criminal offense in Korea is automatically connected to immigration deportation issues for offenders, Sexual offenses are treated more seriously. In addition to immediate deportation, they could be banned from entering South Korea for the next 10 years or permanently.
Sexual Harassment and Punishment
If there was no assault or threat, but there was non-consensual sex in a business/work relationship, it can go beyond simple sexual harassment and become a sex crime subject to punishment under criminal law in Korea.
Sexual Intercourse by Abuse of Occupational Authority
(Article 303)
(1) A person who, by means of fraud or by the threat of authority, has sexual intercourse with another who is under his or her protection or supervision for his or her business, employment or other relationship, shall be punished by imprisonment with labor for not more than seven years, or by a fine not exceeding 30 million won.
(2) A person who has sexual intercourse with another held in his or her custody according to an Act shall be punished by imprisonment with labor for not more than 10 years.
Verbal sexual harassment itself falls within the scope of labor law in Korea and does not constitute a crime. However, if verbal sexual harassment constitutes insult or defamation under Korean Criminal Law, it may be subject to investigation and punishment in criminal judicial proceedings.
Even if it is not a crime, it is subject to civil tort liability.
Victims’ Rights in Sex Crimes in judicial procedures, & Procedures Guide for sexual violence victim
Because the damage of sexual crimes is serious and it is considered difficult for victims to muster up the courage to report and follow legal procedures, the Korean government has established a system to protect and assist victims of sex crimes. Request for personal protection, victim psychotherapy, Protection on Victim, Video recording of statement, etc. is available for sexual violence victims. We will address it in the next article.
FAQ
Q1. Can rape be committed between lovers or married couples?
A1. Yes. In 2013, the Supreme Court ruled that rape is constituted when a husband commits adultery with his wife by inflicting violence or threats to the extent of making rebellion impossible or significantly difficult, not only when the marriage is broken, but also when the actual marriage relationship is maintained.
Q2. What is quasi-rape?
A2. Under Korean criminal law, quasi-rape means having sex while the other person is unable to express their consent to sex with you, such as being drunk and blacked out or asleep.
Q3. Is it a sexual assault crime to secretly film a woman’s legs on the subway?
A3. Yes. Sexual violence includes not only rape and indecent assault, but also all physical and mental violence against the other person’s will, such as obscene messages and hidden cameras. Taking pictures of a person’s body that may cause sexual desire or shame against the will of the person being filmed, or distributing, selling, renting, providing, or displaying the filmed or reproduced pictures will be punished.
Q4. What Korean laws apply when committing a sex crime?
A4. The Korean Criminal Law and Special Act on Sex Crimes are the 2 laws that are representatively applied, and the applicable law may vary depending on the type of sexual violence.
Q5. Can a settlement or reimbursement avoid or reduce the punishment of a sex crime in Korea?
A5. Yes. Sex crimes are a type of crime that continues to be investigated and punished even if the victim does not want to be punished. However, in the case of providing restitution to the victim, the sentence can be reduced, and there are cases where it is not prosecuted.
Q6. Is sexual harassment subject to punishment?
A6. It depends. Physical harassment is, of course, subject to criminal penalties. However, it may be difficult to see that verbal sexual harassment is necessarily subject to criminal punishment, but if it falls under the offense of insult, it is subject to punishment. If sexual harassment occurs in the workplace, it is subject to disciplinary action, and the victim can legally claim damages compensation from the perpetrator and the company.
Lee & Lee law office’s english speaking lawyers provide clients with the highest quality representation
SEOUL, Gangnam Office (Korea) | Kristen Y. LEE
2F, 27-6, 162 Gangnam-daero, Gangnam-gu, Seoul, Republic of Korea
