[Example Situation]

Vivian (age 54) is an employee at a laundry factory in Gangwon Province. Mr. Seo (age 61) is Vivian’s supervisor. One evening after work, Vivian is told to deliver some items to Mr. Seo at his residence. Vivian successfully finds Mr. Seo’s residence and hands over the items to Mr. Seo himself. As she is about to leave, Mr. Seo tells her to come into his bedroom for a talk/chat. Vivian begrudgingly obliges. Once inside, Mr. Seo offers a can of beer and a cigarette. Vivian politely says no and gets up to leave. Suddenly, Mr. Seo grabs Vivian by the wrist and tells her, “Spend the night!” Vivian is frightened and runs away. The next day, Vivian files a criminal complaint against Mr. Seo.

Q: Is Mr. Seo guilty of the crime described in the above slide?

The above “example situation” is very similar to an actual case/decision that was widely reported earlier this month here in Korea. The decision received much attention because: 1) It was a Supreme Court decision + 2) The Supreme Court overturned the trial & appellate court decisions.

I. The Ruling: “Not Guilty!”

The Supreme Court of Korea reversed and remanded the appellate court decision which had found Mr. Seo guilty. The trial & appellate courts had (both) found Mr. Seo guilty of the crime of “Indecent Act through Abuse of Occupational Authority, etc.” (업무상 위력 등에 의한 추행) and fined him 3 million won (벌금). But, the Supreme Court of Korea overturned the lower court decision(s), finding Mr. Seo “not guilty.”

For ease of understanding, it’s helpful to understand “indecent act” (추행) as “inappropriate sexual touching” (e.g., groping, forcible kissing…). This is not a “perfect” definition, however, because, strictly speaking, “physical contact” is not actually a requirement. For example, forcing another person to watch oneself masturbate in an enclosed area could also qualify.

For Mr. Seo, this case was not just a matter of paying a fine or having a criminal record. Had Mr. Seo been found guilty, he would have been registered as a “sex offender” and his personal information would have been disclosed on the internet.

II. Reasoning: “Not Sexual!”

In a nutshell, the Supreme Court of Korea felt that the act of grabbing Vivian by the wrist, in itself, was not “sexual” in nature. In the Court’s view, grabbing someone by the wrist, in itself, does not automatically constitute an “indecent act.” Whether an act constitutes an “indecent act” has to be determined in its overall context.

In order to qualify as an “indecent act,” the victim’s “right to sexual self-determination” has to be infringed. And in this case, the Court felt that Vivian’s wasn’t. In other words, the Court felt that the sole intent behind grabbing Vivian by the wrist was to stop her (physically) from leaving the room. The act, in itself, was not (objectively) capable of producing feelings of sexual humiliation or revulsion. Had Mr. Seo (gently) caressed her wrist, in contrast, things would/could be different.

Finally, Mr. Seo’s telling Vivian to “Spend the night!” could constitute “sexual harassment” (성희롱), but no law in Korea currently outlines criminal punishment for “sexual harassment.” Vivian could instead sue Mr. Seo and/or file a complaint to have him fired, etc… In Korea, “sexual harassment” normally refers to sexually inappropriate comments, suggestions, jokes, or innuendoes, not amounting to an “indecent act.” It’s easier to understand this area of (Korean) law using the “sexual harassment vs. indecent act” dichotomy framework.

III. Related Tidbits

1) “Indecent Act through Abuse of Occupational Authority, etc.” is a crime (somewhat) frequently reported here in Korea. For example, it was recently reported that a Kyung Hee University professor (in dentistry) had been indicted for this crime. The victim seems to be a female 1st-year resident.

2) In Korea, telling a subordinate: “Come here and pour me a drink!” could qualify as “sexual harassment.” Forcing “love shots,” meanwhile, could even qualify as an “indecent act.” The latter entails criminal liability.

3) In Korea, an “indecent act” perpetrated at a “crowded public place” could constitute the crime of “Indecent Act at Crowded Public Place” (공중 밀집 장소에서의 추행). For instance, inside subway trains, at concerts, in jjimjilbangs…

4) In Korea, sending sexually inappropriate messages/emails could constitute the crime of “Obscene Act by Using Medium of Communication” (통신매체를 이용한 음란행위).

5) In Korea, filming another person’s body (in a sexual manner) against his/her will is a crime. The distribution or public display of such film/photo is also a crime. It’s a crime even when the person agreed at the time of filming but later expresses dissent! These crimes are called “Taking Pictures by Using Camera, etc.” (카메라 등을 이용한 촬영).

Thanks for reading!