Definition of Rape in Korea Elaborated on by the Korean Supreme Court: Criminal Law Basics

A recent decision by the Supreme Court of Korea may make defending against rape charges a little easier for defendants. The Defendant in the case was convicted by a Korean District and High Court for rape and was sentenced to 1 1/2 years in jail.

Facts Found by the Court
The Supreme Court found, among other things, the following facts:

  1. The defendant was the ex-boyfriend of the Accuser;
  2. The Accuser had a boyfriend;
  3. The Accuser was drunk and the Defendant may have been drunk on the night of the alleged rape;
  4. The Accuser and the Defendant met each other “spontaneously” and drank together;
  5. The Accuser and the Defendant went back to a motel room together;
  6. The Accuser and the Defendant had sex;
  7. The Accuser screamed that “this is rape” and the Defendant stopped having sex with the Accuser;
  8. The Defendant noted that he would take the Accuser to her home, but she demanded to be taken to her boyfriend’s home; and
  9. After the alleged rape the Accuser and the Defendant exchanged texts on numerous occasions and the Accuser never mentioned rape.

Opinion of Supreme Court The Supreme Court overturned the opinion of a District and a High Court in Korea noting, in part, that: “As he refrained from his sexual advances when the Accuser warned him, we doubt that the sex was really against her will.” The Court seems to be noting that prior to the exclamation that “this is rape” the action was consensual.

One of the most prevalent reason for a false accusation of rape is embarrassment. Was the Accuser embarrassed by her actions when she was confronted by her present boyfriend? Did this lead her to telling her boyfriend she was raped, thus, leading to him pushing her to report the lie? It seems the Court was considering this, potential, reality.Other articles that may be of interest:

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Sean Hayes is the first non-Korean attorney to have worked for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty. Sean is ranked, for Korea, as one of only two non-Korean lawyers as a Top Attorney by AsiaLaw, and IPG Legal is consistently ranked Top Dispute Resolution Law for our litigation services.

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