Korean Law Demystified!

Korean Law on Rape

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In Korea, criminal law can be tricky and confusing because several different laws come into play simultaneously. Korea’s rape laws are a good example. There are basically three types of rape crimes.


I. Rape (강간)

According to Article 297 of the Criminal Act, the punishment for “Rape” is imprisonment for a definite term of at least three years. An attempt to commit this crime is also punishable (Article 300). “Habitual offenders” may face more severe punishment (Article 305-2). In order to qualify as “Rape”:

1) A person has to engage in sexual intercourse with another person

2) Through violence or intimidation

3) With the intent to commit “Rape.”

This crime specifically requires “violence or intimidation” be used as a means to engage in sexual intercourse. “Violence or intimidation” must be one capable of rendering the victim’s resistance impossible or extremely difficult. Once “violence or intimidation” has commenced, the legal threshold for “Attempted Rape” is met.

The crime of “Rape” is completed when the perpetrator engages in sexual intercourse with the victim. Specifically, this refers to the penetration of the female sex organ by the male sex organ. Once penetration has commenced, the legal threshold for “Rape” is met.

Article 297 of the Criminal Act applies to “Rape” cases where the victim is at least nineteen years of age (international age). When the victim is between the ages of thirteen and eighteen, the Act on the Protection of Children and Juveniles from Sexual Abuse (아동•청소년의성보호에관한법률) takes precedence. Meanwhile, when the victim is under the age of thirteen, the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (성폭력범죄의처벌등에관한특례법) takes precedence. In accordance with these laws, a person who rapes a minor could face life imprisonment.

When this crime is perpetrated against a disabled person or a relative, the punishment is more severe as well.

When “Rape” is perpetrated by “carrying a deadly weapon/dangerous object” or “jointly with another person,” the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes takes precedence. The crime becomes “Aggravated Rape” (특수강간), and the perpetrator(s) could face life imprisonment.

Korea has recently adopted a zero-tolerance policy towards crimes of “sexual violence.” Certain sex offenders may be required to wear an ankle monitor or be sentenced to chemical castration. At the same time, the sex offender’s personal information may be disclosed on the internet.

In a recent landmark decision, the Supreme Court of Korea ruled that forced sex with one’s own wife also constitutes “Rape” (Supreme Court Decision of May 16, 2013, 2012Do14788). Previously, marital rape was recognized only under special circumstances such as when divorce was pending.


II. Like-Rape (유사강간)

According to Article 297-2 of the Criminal Act, the punishment for “Like-Rape” is imprisonment for a definite term of at least two years. An attempt to commit this crime is also punishable (Article 300). “Habitual offenders” may face more severe punishment (Article 305-2). In order to qualify as “Like-Rape”:

1) A person has to insert his or her genitals into the inner part of another person’s body (excluding genitals), such as the mouth or anus; or insert a part of his or her body (excluding genitals), such as a finger, or any other object into another person’s genitals or anus.

2) Through violence or intimidation

3) With the intent to commit “Like-Rape.”

This crime specifically requires “violence or intimidation” be used in its commission. “Violence or intimidation” must be one capable of rendering the victim’s resistance impossible or extremely difficult. Once “violence or intimidation” has commenced, the legal threshold for “Attempted Like-Rape” is met.

The crime of “Like-Rape” is completed when the perpetrator engages in any conduct described in Article 297-2. Specifically, this refers to the insertion of the sex organ into the mouth or anus of the victim, or the insertion of any part of the body (excluding the sex organ) or any object into the victim’s sex organ or anus. Once insertion has commenced, the legal threshold for “Like-Rape” is met.

Article 297-2 of the Criminal Act applies to “Like-Rape” cases where the victim is at least nineteen years of age. When the victim is between the ages of thirteen and eighteen, the Act on the Protection of Children and Juveniles from Sexual Abuse takes precedence. Meanwhile, when the victim is under the age of thirteen, the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes takes precedence. In accordance with these laws, the perpetrator will face more severe punishment if the victim is a minor.

When this crime is perpetrated against a disabled person or a relative, the punishment is more severe as well.

Certain sex offenders may be required to wear an ankle monitor or be sentenced to chemical castration. At the same time, the sex offender’s personal information may be disclosed on the internet.


III. Quasi-Rape (준강간)

According to Article 299 of the Criminal Act, the punishment for “Quasi-Rape” is imprisonment for a definite term of at least three years. An attempt to commit this crime is also punishable (Article 300). “Habitual offenders” may face more severe punishment (Article 305-2). In order to qualify as “Quasi-Rape”:

1) A person has to engage in sexual intercourse with another person

2) By taking advantage of his or her state of unconsciousness or inability to resist

3) With the intent to commit “Quasi-Rape.”

This crime specifically requires the perpetrator to take advantage of the victim’s “state of unconsciousness or inability to resist” as a means to engage in sexual intercourse. For the purposes of this crime, “state of unconsciousness” includes loss of consciousness caused by sleep or intoxication. “Inability to resist,” meanwhile, refers to other situations where the victim was unable to resist due to physical or psychological factors.

FYI: If the rapist was the one who drugged the victim, the crime would be “Rape,” not “Quasi-Rape.”

Article 299 of the Criminal Act applies to “Quasi-Rape” cases where the victim is at least nineteen years of age. When the victim is between the ages of thirteen and eighteen, the Act on the Protection of Children and Juveniles from Sexual Abuse takes precedence. Meanwhile, when the victim is under the age of thirteen, the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes takes precedence. In accordance with these laws, the perpetrator could face life imprisonment if the victim is a minor.

When “Quasi-Rape” is perpetrated by “carrying a deadly weapon/dangerous object” or “jointly with another person,” the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes takes precedence. The crime becomes “Aggravated Quasi-Rape” (특수준강간), and the perpetrator(s) could face life imprisonment.

When this crime is perpetrated against a disabled person or a relative, the punishment is more severe as well.

Certain sex offenders may be required to wear an ankle monitor or be sentenced to chemical castration. At the same time, the sex offender’s personal information may be disclosed on the internet.


Afterword

In Korea, female-on-male (also, male-on-male) rapes have been punished under the crime of “Indecent Act by Compulsion” (강제추행). Only a female or a transsexual woman could be a victim of a rape-related crime. With the new amendments, a male or a female can be a victim of a rape-related crime.

Under Korea’s rape laws, forced anal sex is, by interpretation, criminalized under “Like-Rape,” not “Rape.” Consequently, forced anal sex is punished less severely than forced sex. This is somewhat baffling if one believes forced anal sex carries the same degree of culpability as forced sex.

Like the rape-related crimes, many crimes are regulated under multiple laws. In Korea, special laws are continually enacted to combat new types of crime or to punish a select group of existing crimes more severely. It would be highly impractical to amend the Criminal Act every other month or to try defining all crimes in one such law. When a special law comes into force, it takes precedence over all other general laws. The Criminal Act – a general law by design – functions as a “catch-all” law, so to speak.


Note: I have added some more information below.

– I recommend this post: https://klawguru.com/2016/04/15/common-misconceptions-about-korean-law-on-rape/

– I also recommend this post: https://klawguru.com/2016/04/22/the-serious-crime-of-false-accusation-in-korea/

– Another post I recommend: https://klawguru.com/2016/05/17/korean-law-on-rape-understanding-the-lack-of-consent-requirement/

– One more: https://klawguru.com/2016/06/13/the-more-serious-rape-related-crimes-under-korean-law/

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