Korean Law Demystified!

Coerced vs. Consensual Sex…


Q: Is “begrudgingly obliging” coerced or consensual?

Strictly speaking, it would have to fall under consensual. Because what the court will ask is, “Was that your final answer?” And consent can be implied.

In the case of rape, sometimes people forget “lack of consent,” too, is an integral element of crime. This is why asking the defendant to prove “there was indeed consent” is absurd. That’s essentially asking the defendant to prove himself innocent (i.e., “guilty until proven innocent by oneself”).

In criminal law, it is always the prosecution who bears the burden of proof regarding every element of a crime. In rape, for example, the prosecution must prove: a) sex took place and b) it lacked consent. Both are equally important.

The prosecutor must prove each element of a crime “beyond a reasonable doubt.” As you might suspect, it’s true this standard varies somewhat from country to country, from judge to judge… Interestingly, it varies from crime to crime as well (at least in Korea). The harsher the min punishment, the stricter the adherence. In Korea, there are instances where: the min punishment outlined is increased (for a certain crime) –> the rate of acquittal suddenly jumps (for that crime). Crimes that usually result in (nothing but) a criminal fine tend to have lower acquittal rates than the more egregious crimes such as rape where a prison sentence is inevitable (once found guilty).

Sadly, the rate of false accusation in South Korea is very high. (I once read the rate of “filing a criminal complaint” is 60 times that of Japan!) It’s not right, of course, to automatically question a person who’s come to file a criminal complaint. I think Korean police officers sometimes fall into this trap because they’ve been had many times before. I’m sure they did not all start out their careers being so suspicious and mistrustful. This is the sad reality. As the police officer is listening to you and typing, he might simultaneously be thinking “hmm… really…” (not “omg…”) They might even stop you from time to time and ask you “But why didn’t you at the time … ?”

It is indeed rape if at any time (before or during sex) either person recants consent. But just “saying no” might/will not be enough. If that person could have reasonably walked away yet didn’t, that is likely to be construed by the court as implied consent (despite having said no). I think this is the part many people tend to have a problem with, and I understand. But the flip side is, what if: after having consensual sex, one person painfully regrets it (or becomes angry for some other reason) and decides to report it as rape? Let’s assume there is no proof other than the allegation itself. If you’re the judge, could you easily send the accused to jail?

Tidbit: Drugging someone to have sex is, of course, rape because consent cannot be implied that way.

Thanks for reading!

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