[Example Situation]

Mr. Cho (married but separated; age 42) is the head of a small talent agency in Seoul. Right now, his son (age 13) is recovering in the hospital after a minor car accident. While on a visit to his son, Mr. Cho shares an elevator with a stranger named Soojin (female; age 15). He abruptly asks if she’d be interested in becoming an actress. Soojin is flattered and takes his card. (FYI, Soojin is neither interested in academics, nor is her sick mother able to amply support her.) Fast forward 3 months: Mr. Cho is having sexual relations with Soojin (who has now left home). There is no outward evidence to suggest Soojin has ever been raped or told to leave her home. Eventually, Soojin becomes pregnant with Mr. Cho’s child and gives birth. Soojin’s mother later finds out and reports Mr. Cho to the police. Q: Discuss Mr. Cho’s criminal liability under Korean law.

Note 1: “Child or juvenile” is a person under the age of 19.

Note 2: All ages in this post are in international age (not “Korean age.”)

I. The Ruling

In a similar case, the Supreme Court of Korea reversed and remanded an appellate court decision which had found Mr. Cho guilty of “Sexual Intercourse with a Minor by Means of Authority” under Article 7(5) of the Act on the Protection of Children and Juveniles Against Sexual Abuse. In the Court’s view, Mr. Cho was not guilty. (FYI, the appellate court had found him guilty and sentenced him to 9 years in prison. The trial court had also found him guilty and sentenced him to 12.)

II. Reasoning

• There was only Soojin’s statement alleging she had, in fact, been forced into having sex.
• While Mr. Cho was being detained for another crime, Soojin frequently visited him + sent him mail. In the mail, Soojin often expressed (romantic) love. She also looked after Mr. Cho’s 13-year-old son.
• During the course of their “relationship,” they often expressed “love” for each other via text message.
• Soojin had many opportunities to return home and/or report Mr. Cho to the police.
• It was difficult to believe Soojin’s allegation that she had, in fact, been afraid all this time. According to her, she could not help but continue to see him because she did not have enough money for an abortion.

All in all, the prosecution failed to prove beyond a reasonable doubt that Mr. Cho committed a crime. It was hard to rule out the possibility that Soojin really wanted to be in a relationship with Mr. Cho.

UPDATE: Believe it or not, this case is still ongoing (TRIAL: Guilty —> APPELLATE: Guilty —> SUPREME: Not Guilty —> APPELLATE: Not Guilty —> SUPREME: ?). It’s unlikely the decision will again be overturned. The events originally took place in 2011, and it’s 2015 right now. (Link)

UPDATE in 2017: He was ultimately found NOT GUILTY.

III. Explanation of the Title: The Two Laws Coexist!

According to Article 305 of the Criminal Act, the age of consent in Korea is 13. But there is a fine print: Article 7(5) of the Act on the Protection of Children and Juveniles Against Sexual Abuse.

Article 7(5) basically refers to situations where sexual intercourse seemed “consensual,” but it would have been very difficult (ordinarily) for a minor to say no.

In Article 7(5), “by authority” means “through the use of one’s social, economic, or political status/power.” Maybe something like: Your boss pours you a shot of soju, and you find it hard to “just say no.” You want to say no + you can say no, yet you gulp it down like a soft drink. Added explanation: “By authority” is an element of crime that is to be proven (not presumed). Being a boss/teacher can be very vital proof of that, but not an absolute/airtight proof. In other words, a certain outward relationship does not automatically prove “authority” actually came into play. The prosecution has to actually prove that.

For Article 7(5), I have translated “위력” as “authority” and “위계” as “deception.” “위력” is normally closer to “power” or “force,” but I feel “authority” makes a little more sense in that context. (FYI, KLRI translated it as “force.”) When in doubt, one should always refer to the original/Korean version of the law. Translated versions of Korean law have no authority. They exist for reference only.

Power Tidbit: The age of majority in Korea is 19. For the purposes of Article 7(5), however, one is already deemed 19 on January 1st of the year in which one is to turn 19. Article 7(5) does not apply to them even though they are technically still 18 years old.

DID YOU KNOW? Recently here in Korea, a 9-year-old boy confessed to throwing a brick from the rooftop of an apartment building. The brick hit two people (on the ground) who happened to be feeding stray cats. One person was killed, the other severely injured. The age of criminal responsibility in Korea is 14. The boy can’t even be tried as a juvenile because he is not yet 10. The victims can only sue the boy’s parents. FYI, two other kids were with him that day (ages 8 and 11, respectively.) The 11-year-old will be tried as a juvenile (for being an accomplice.)

<BONUS MATERIAL: What Exactly Constitutes Rape in Korea?>

In Korea, the crime of rape specifically requires “violence” (폭행) or “intimidation” (협박) be used as a (direct) means to engage in sex. Here, “violence” is the use of physical force, while “intimidation” refers to threats. The “lack of consent” element is proven as evidenced through the presence of either of these means. So unless there is proof of “violence” or “intimidation,” the crime cannot be rape. Example:

Jack and Jill are boyfriend and girlfriend here in Korea. One night in a motel room, Jack gets extremely angry at Jill over a trifle. He yells/curses at her and even punches the wall (out of anger). He leaves the room to cool down. After 20 minutes, Jack comes back and demands they have intercourse. Jill says no. Jack keeps demanding. Jill eventually obliges.

In a scenarios such as the one above, it’s unlikely that a Korean court will find Jack guilty of rape. Neither “violence” nor “intimidation” was (directly) used as a means to engage in sexual intercourse. Korean courts are still somewhat strict in their interpretation of rape. Initially saying no, but later obliging is more likely to be considered a change of mind. For a little more information on Korea’s rape laws, click here.

Thanks for reading!

[UPDATE] Please read –> https://klawguru.com/2017/08/26/the-confusing-legal-age-of-sexual-consent-in-south-korea/