[Example Situation]

In Seoul, a man goes about secretly taking pictures of women’s legs. He does so using his smartphone, only in public places. He targets random women’s legs clad in stockings or skinny jeans. One day, he is caught in the act. It turns out: From November 2013 to May 2014, he took pictures of 49 random women’s legs. The man is soon indicted for the crime of “Taking Pictures by Using Camera, etc.” (See Article 14(1) above.) What punishment, if any, can the man expect under Article 14(1)?

I. The Ruling

The above example is similar to an actual case recently reported here in Korea. The Seoul Northern District Court found the man not guilty.

II. Reasoning

Simply put, the court felt the man’s pictures fell short of causing “sexual stimulus or shame.” That the pictures were all taken in public places (e.g., in the subway/streets) also seems to have played a role.

III. “Pictures of another person’s body, which may cause sexual stimulus or shame…”

According to the Supreme Court of Korea, the factors below should all be taken into consideration when determining “pictures of another person’s body, which may cause sexual stimulus or shame…” (Supreme Court Decision of September 25, 2008, 2008Do7007):

1) Whether the body part in the picture is a body part objectively capable of causing sexual stimulus or shame to an average person.

2) How the victim was dressed and how revealing the clothes were.

3) The defendant’s intent and/or purpose in taking the pictures.

4) Where the pictures were taken, the angle in which they were taken, and the distance between the camera and the victim.

5) Whether the pictures highlight/accentuate a certain body part.

These factors should be taken into consideration collectively, as a whole. But even with knowledge of these factors, it’s never easy to predict what decision the court will render. It’s sort of like the U.S. Supreme Court’s “I know it when I see it” test for determining “obscenity.”

I would say: Less taken at an angle + More clad the body part -> The more likely an acquittal is. Which is why, I think, the man was acquitted.

In contrast: A man once was found guilty of this crime after he secretly took pictures of women’s legs as they were just about to use a squat toilet. See Supreme Court of Decision July 24, 2014, 2014Do6309.

IV. Additional Tidbits

1) A person found guilty of this crime will be registered as a “sex offender.” His/her personal info can be disclosed on the internet. NOTE: A “foreigner” who is registered as a “sex offender” may not be able to re-enter Korea (once he/she leaves).

2) Unlike a person found guilty of groping (aka “indecent acts”), a person found guilty of this crime cannot be ordered to wear an ankle bracelet.

3) Pressing “record” constitutes a completed form of this crime (i.e., not an attempt) even if the video fails to be “saved” because the recording was aborted midway (Supreme Court Decision of June 9, 2011, 2010Do10677).

4) Article 14(2) was recently added. (FYI, there was no English version, so I had to translate this part myself.) In a nutshell, one cannot distribute sexual photos/videos of another person w/o consent even if filming itself was “okayed” at the time.

Thanks for reading!