Possession as a Continuing Offense: Supreme Court Rules That Pre-Law Deepfake and Illicit Recording Stockpiles Remain Punishable

By Juwon Kang, June 5, 2026

Background

A defendant identified as A was charged with multiple violations of Korea’s Act on Special Cases Concerning the Punishment of Sexual Violence Crimes (the Sexual Violence Punishment Act) and the Act on the Protection of Children and Youth from Sexual Exploitation. The charges stemmed from A’s possession of two categories of material: 113 non-consensual recordings saved between December 2014 and May 2020 and retained through December 16, 2024; and deepfake sexual content stored between approximately May 2019 and December 2020 and likewise retained through December 16, 2024.

The statutory provisions criminalizing possession of non-consensual recordings and deepfake material did not exist when A first acquired the files. The non-consensual recording possession offense was enacted on May 19, 2020; the deepfake possession offense was enacted on October 16, 2024.

The lower court (Gwangju High Court) acquitted A on both possession counts, reasoning that the act of possession had commenced before the relevant penalties were enacted and that no distinct new possessory act had occurred after the laws took effect.

Court Decision

The Supreme Court’s Third Criminal Division (presiding Justice Lee Suk-yeon) on April 30, 2026 reversed the acquittal and remanded the case to Gwangju High Court (Case No. 2026Do541).

Legal Reasoning

The Court’s analysis turned on the classification of possession as a “continuing offense” (계속범). Under this doctrine, the criminal act does not conclude at the moment possession begins; it persists continuously for as long as the offender maintains dominion and control over the material. The possessory state therefore constitutes a single unbroken offense spanning from the initial acquisition through the final moment of control.

Because the offense is ongoing rather than instantaneous, the newly enacted prohibition applies to the entire period during which possession continues after the law’s effective date. The Court held that it is immaterial that possession commenced before criminalization; what matters is whether the defendant continued to possess the material after the statute came into force.

Applying that framework, the Court found:

• On the non-consensual recording count: the possession offense was enacted May 19, 2020, and A continued to possess the material through December 16, 2024—well into the statute’s operative period.
• On the deepfake count: the possession offense was enacted October 16, 2024, and A’s possession continued through December 16, 2024, placing the conduct within the statute’s reach.

Why This Matters

This decision has significant implications for both prosecutors and defense counsel in cases involving legacy digital contraband. The Court has effectively confirmed that enactment of a new possession offense creates an immediate legal obligation to destroy or surrender covered material. Defendants who retain prohibited recordings or deepfakes past a statute’s effective date cannot rely on the timing of their original acquisition as a defense.

For practitioners, the ruling underscores the importance of advising clients promptly when new digital-content offenses are enacted—the window between a law’s passage and its enforcement is not a safe harbor. Prosecutors, in turn, now have clear authority to charge possession covering any period that extends into the statutory era, potentially enabling charges years after the underlying content was first obtained.

The decision also signals how Korean courts are likely to handle the expanding body of digital sex crime legislation. As new prohibitions targeting AI-generated content, non-consensual intimate imagery, and similar material continue to be enacted, the continuing-offense framework established here will remain the central tool for holding long-term possessors accountable.

Article: https://www.lawtimes.co.kr/news/articleView.html?idxno=220836