I. Understanding the Key Terms
In Korea, you may have heard of the term “indecent act” (추행). It basically refers to the crime of “(sexual) groping” or “inappropriate sexual touching.” I personally prefer the broader term “inappropriate sexual touching” because not only is there “groping,” but there is also “forcible grinding” and “forcible kissing.” Unlike groping, the latter two do not entail so much using one’s hand to achieve gratification.
Meanwhile, the term “indecent act” is actually a much broader term than (even) “inappropriate sexual touching.” An “indecent act” does not require physical contact! For example, forcing another person (e.g., by making threats with a knife) to watch one masturbate in an enclosed area (e.g., inside an elevator) constitutes an “indecent act.” An “indecent act” is a very broad term referring to any act objectively capable of producing feelings of sexual humiliation or revulsion that infringes upon the right to sexual self-determination of another person. Technically speaking, physical contact is not a requirement.
Nevertheless, an overwhelming majority of “indecent acts” are essentially groping or inappropriate sexual touching. When you hear about an “indecent act” in the news, it’s (almost) safe to assume they are referring to groping or inappropriate sexual touching. This is why I am not averse to using the three terms synonymously.
But, another reason why I prefer the term “inappropriate sexual touching” (over groping) is because those three words (i.e., touching, sexual, & inappropriate) encapsulate what a defendant must argue in order to exonerate him/herself. In essence, a defendant must argue:
1) “I did not even touch!” or
2) “I touched, but it wasn’t sexual!” or
3) “I touched and it was sexual, but there was consent!”
Any one of these arguments, when successful, is enough to find a defendant not guilty (i.e., a full defense).
DID YOU KNOW? In the “masturbation example” above, one key/operative word is “enclosed.” Had the man (just) publicly masturbated in an open area, the crime would have been either “Public Obscenity” (공연음란) or “Obscene Exposure” (과다노출). The fact that it took place in an enclosed area implies that the victim could not flee, and therefore her right to sexual self-determination was infringed.
DID YOU KNOW? Before Korea’s laws on rape became gender-neutral in 2013, a woman raping a man would constitute the crime of “Indecent Act (by Compulsion).” Male-on-male rapes as well. By definition, a man could not fall victim to the crime of rape. This has all changed now.
II. Types of “Indecent Acts” in Korean Law
The term “indecent act” is a term I (and other people) use generally. No crime is actually named just “indecent act.” The official names are much longer. Longer because they usually specify the manner in which an “indecent act” is perpetrated. The following are the official names of all “indecent act” crimes and their corresponding (criminal) punishments. Prison sentences are in red, and criminal fines in orange.
1. “Indecent Act at Crowded Public Place” : max 1 year or max 3 mil won
2. “Indecent Act through Abuse of Occupational Authority, etc.” (Victim is under one’s protection or supervision by reason of business, employment or other relationship) : max 2 years or max 5 mil won
3. “Indecent Act through Abuse of Occupational Authority, etc.” (Victim is held in one’s custody after being detained in accordance with the law) : max 3 years or max 15 mil won
4. “Indecent Act by Compulsion” / “Quasi Indecent Act by Compulsion” (Victim is 19 or older) : max 10 years or max 15 mil won
5. “Indecent Act by Compulsion” / “Quasi Indecent Act by Compulsion” / “Indecent Act by Authority or Fraudulent Means” (Victim is ages 13-18) : min 2 years of fixed term or 10-30 mil won
6. “Indecent Act by Compulsion” / “Quasi Indecent Act by Compulsion” / “Indecent Act by Authority or Fraudulent Means” (Victim is 12 or younger) : min 5 years of fixed term or 30-50 mil won
7. “Indecent Act by Compulsion” / “Quasi Indecent Act by Compulsion” (Victim is a disabled person) : min 3 years of fixed term or 20-50 mil won
8. “Indecent Act by Authority or Fraudulent Means” (Victim is a disabled person) : min 1 year of fixed term or 10-30 mil won
9. “Indecent Act by Compulsion” / “Quasi Indecent Act by Compulsion” (Victim is a family member or relative) : min 5 years of fixed term
Most of the translations above, I went by the KLRI (Korea Legislation Research Institute) translation. I usually go by their translation mainly because coming up with my own could potentially create confusion to the English reader. One could mistakenly think that KLRI and I are referring to two different/separate things, when actually we’re not. Indeed, one problem with KLRI translations is that a Korean legal term is sometimes translated into different/separate English terms for no reason. I suspect this is because the translations are done by several different people with no one person to coordinate everything.
FYI, I have translated “위력” as “Authority.” “Quasi” is a translation of “준” which refers to instances where the victim is already incapacitated (e.g., drunk, asleep…), and the perpetrator takes advantage of that. “Compulsion” is a translation of “강제” which refers to situations where violence or intimidation is used as a means to perpetrate the actual crime (i.e., two-step process: intimidation/violence –> indecent act). Oh and, “fixed term” basically means it cannot be life imprisonment.
One thing I wanna say about “Indecent Act by Compulsion” (강제추행) is that even though the crime specifies intimidation or violence as a necessary means, these means are not really necessary. This is because the Supreme Court of Korea has interpreted that the preliminary act of intimation/violence and the actual indecent act can take place simultaneously! When a victim is taken by surprise, the “indecent act” itself also constitutes “violence.” I think the original drafters failed to see that (unlike rape) groping usually takes place suddenly and instantaneously (i.e., not a two-step process).
One must keep in mind: On top of the above-mentioned punishments, a person found guilty will also be registered as a “sex offender” and probably be ordered to attend many hours of “sex offender treatment program.” His/her personal info can be disclosed on the internet. In egregious/habitual cases, a person found guilty might also be ordered to wear a GPS ankle bracelet or even undergo chemical castration!
A foreigner who is convicted of an “indecent act” crime will likely be denied re-entry to South Korea. An innocent person should never admit to guilt even when his/her employer is willing to pay the criminal fine.
DID YOU KNOW?
Earlier this month, a British female exchange student here in Korea accused a subway station employee of molesting her. She originally called the police saying she had been kidnapped by other foreigner students. The police came to her rescue and took her to the nearest subway station. Not long after, she again called the police (this time) saying an employee there forcibly kissed her, touched her… The employee vehemently denies the accusation saying he found her crying in the station, so he only tried to help. There was no CCTV there, but the employee claims a cleaning lady was there to verify. The case is under investigation, and the parties are said to undergo a polygraph.
DID YOU KNOW? A “criminal complaint” is not a requirement for prosecuting/punishing someone for any “indecent act” crime. So for instance, if an undercover cop catches someone red-handed in the subway, the police can prosecute that perpetrator regardless of whether the victim’s wishes to seek punishment. This also means the perpetrator will still be punished even if some sort of (monetary) settlement is later reached between the perpetrator and the victim. When a settlement is reached, the perpetrator usually ends up with a lighter punishment. But, punishment itself cannot be avoided. Same with all rape crimes.
III. Recent Court Cases Worthy of Note
1. The Seoul High Court recently found a man not guilty of inappropriate sexual touching (and other charges). He had originally been charged with the crimes after he started groping a co-worker’s girlfriend who was spending the night at this home (in one of his rooms). The man slowly started groping her thinking she was asleep. In fact, it was established in court she was not asleep; she was just pretending to be asleep. The man was found not guilty because: a) She was not asleep, so the crime cannot be “Quasi …” + b) The groping started slowly and gradually (e.g., first checking to see if she was asleep) which means she had ample time/opportunity to say no (which she didn’t) + she was not taken by surprise. This case is in the Supreme Court now. (Link)
2. The Seoul High Court found a man in his 30s guilty of inappropriate sexual touching. He had been charged with the crime after he touched/caressed the back of the hand + cheek of an 8-year-old girl. This happened in the playground of an apartment complex. The man was sentenced to 3 years in prison (4 years probation). What was key in this case was that the victim stated that the touching was “not really pleasant to her.” The man was, however, able to avoid wearing a GPS ankle bracelet because he had no priors. (Link)
3. The Ulsan District Court found a man in his 50s guilty of sexual inappropriate touching. He had been charged with the crime after he touched a 10-year-old girl’s buttocks three times. This crime also happened within the premises of an apartment complex. The man was fined 40 million won, ordered to attend 120 hours of “sex offender treatment program,” and his personal info is to be disclosed for 2 years. The man committed this crime while he was on probation for a similar crime. But, reports imply he was able to avoid a prison sentence because a settlement was apparently reached with the victim’s family. (Link)
4. The Daegu District Court found a man in his 60s not guilty of inappropriate sexual touching. He had been charged with the crime after he touched/slapped a (young) woman’s thigh, while on the subway. He touched her thigh once while telling/ordering her to uncross her legs. It seems he was trying to scold her that her dress was too short/revealing. The court here ultimately felt there was no intent to grope the woman. (Originally, the lower court had found him guilty and fined 1.5 million won.) FYI, the man’s defense here would have been the “I touched, but it wasn’t sexual!” defense I talked about earlier. (Link)
5. The Daegu District Court found a man in his 40s not guilty of inappropriate sexual touching. He had been charged with the crime after he suddenly put his hands inside the armpits of a female coworker (a teacher) during a get-together dinner (at a restaurant). He did so while saying “Let’s go for a 2nd round (of drinks)!” The man was found not guilty mainly: a) Because whether he intended to “grope” was still unclear + b) Because of conflicting witness accounts (of other coworkers, the restaurant owner). Originally, the lower court had found the man guilty mainly because the female co-worker expressed disapproval right away + he publicly apologized to her. (Link)
6. The Daegu High Court affirmed a lower court decision which had found a 22-year-old man not guilty of inappropriate sexual touching at a club. He was indicted solely based on the female victim’s description that the perpetrator was wearing a pink shirt and had short hair. The courts all felt this was not enough to convict the man especially considering that: the club was dark and crowded + the club had special blue lighting + the victim was drunk herself and only glimpsed the perpetrator from the side/rear. (Link)
7. The Ulsan District Court found a 46-year-old man guilty of inappropriate sexual touching after he slapped a female coworker on the buttocks on two separate occasions. He was fined 4 million won and ordered to attend 40 hours of “sex offender treatment program.” (Link)
8. The Supreme Court of Korea reversed and remanded an appellate court decision which had found a male physical therapist guilty of inappropriate sexual touching. He had been fined 3 million won for touching (w/o consent) a female patient’s breasts. The Court exonerated the man because the female victim could have easily extricated herself + did not (at the time) clearly express any disapproval + filed a criminal complaint after two days. Also, the man clearly and consistently denied the claims from the very beginning. All in all, the victim’s claim alone was not enough to convict the man. (Link)
9. Earlier this month, the Daejeon District Court found a high school teacher guilty of inappropriate sexual touching. He had been charged with the crime after he habitually molested 23 of his students from 2013 to 2014. The court sentenced him to 18 months in prison (no probation). This means he will actually serve time in jail. He was also ordered to attend 40 hours of “sex offender treatment program.” (Link)
10. The Seoul Northern District Court found a man in his 40s guilty of inappropriate sexual touching. He had been charged with the crime after he habitually molested the two young daughters of his cohabitating girlfriend. He was sentenced to 2 and half years in prison (no probation). This means he will actually serve time in jail. He was also ordered to attend 80 hours of “sex offender treatment program.” But, the prosecution’s request for a GPS ankle bracelet was denied by the court. The court denied it saying: he had no priors, he no longer lives with the victims, and the assessment report for possibility of recidivism did not come out as high. FYI, GPS ankle bracelets and chemical castration require the request from prosecution. The court cannot just order. (Link)
If you are a defendant and you know yourself to be innocent, do not at any point admit to any guilt. Be consistent in your denials from beginning to end. Point out any inconsistencies in the accuser’s statements. Even if you lose a case, by all means appeal. Don’t give up.
If you are a victim, clearly express disapproval right away and report the crime ASAP. Do not wait a few days to report. Demand an apology. Also, do not exchange any friendly text messages with the perpetrator. Be consistent and specific in your allegations from beginning to end.
At any rate, it’s generally not a good idea to go ahead and touch someone (you don’t know).
Thanks for reading!