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| Protestors march near Gwanghwamun Square, downtown Seoul, Saturday, in a rally to criticize a local court's acquitting former South Chungcheong Province Governor An Hee-Jung on rape charges. / Korea Times photo by Park Ji-won |
By Lee Suh-yoon
The recent not-guilty verdict given to former South Chungcheong Province Governor An Hee-jung over his rape charges has caused controversy over whether the nation's laws on sexual offenses need to be changed.
The row surfaced after the Seoul Western District Court ruled last week An was not guilty, citing "insufficient evidence," in the highest-profile #MeToo case here. He was indicted for sexually assaulting his former secretary Kim Ji-eun over four times and sexually harassing her many more times.
In giving the verdict in favor of An, the court said, "This incident happened between two mature adults capable of good judgment, and there was no evidence the victim was subject to the degree of physical force that made it impossible for her to resist."
It then threw the ball to the legislative body.
It said Korea does not have a "no means no" or "yes means yes" rule, meaning there were no grounds for punishing those who had sexual intercourse when the other party said "no", or when a party had sexual relations without getting affirmative consent from the other party.
Without either of the rules, it is difficult to punish people for unwanted sexual intercourse that does not involve physical force and threats, the court said, adding "whether to adopt such rules is an issue to be dealt with by the National Assembly."
Following the ruling, some lawmakers and civic groups called for the adoption of "no means no" and "yes means yes" rules. Four bills have already been pending at the National Assembly to punish those who have had sex without consent from the other party.
"The ruling shows the country is forcing victims to prove everything," Rep. Shin Bo-ra of the Liberty Korea Party said in a discussion among female lawmakers, Friday. "The law should be changed to force the offenders to prove they obtained the victims' consent."
However, some other women's rights activists and scholars said An could be punished without the two rules if the court had actively applied existing laws designed specifically to punish sexual abuse by those in power.
"The law on sexual intercourse by abuse of occupational authority, which An was charged with, is specifically for punishing sexual abuse that did not involve overt physical force or threats," Ryu Hwa-jin, a law professor from Youngsan University, said to The Korea Times. "The law is there because perpetrators who have occupational authority over the victims do not have to depend on physical violence to commit rape; they can simply coerce the other person through their authority."
She said, "Even if there was no physical coercion in the lead-up to sexual intercourse, the intercourse itself could be counted as a form of physical violence."
According to the law, those who use their authority to have sexual intercourse with someone under their command in an employment relationship can be given up to five years in jail. In previous verdicts, this authority includes anything – including one's socioeconomic status – that might be used to restrain the victim's free will. Neighboring Japan, which Korea takes many of its criminal code articles from, also has a similar law.
Kwon-Kim Hyun-young, a women's rights scholar and activist, says properly applying the law is the way to prevent sexual abuse in the workplace, rather than implementing a "no means no" rule mentioned in the verdict.
"The rule only works if the victim is in a position to say no, and this is difficult in a relationship of hierarchical authority," she said in a local press interview.
"Usually a court ruling (on article 303) checks whether the perpetrator and victim were ever in a dating relationship, through pictures they took together or text messages they exchanged," Kwon-Kim said. "And An failed to submit any evidence that proved so."
