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Thankfully we see more and more legally convicted sex offenders; but too many others are convicted in the court of public opinion such as Facebook and other social media outlets. Rape allegations frequently stem from the accused and the victim at a private venue; no evidence of coercion, physical violence or drugs. So what is the actual evidence for rape?
The old idea that "she entered the premises voluntarily so therefore must have consented" is dead; and we should be grateful for that. But the fact remains that we have two people in a room, one says she was raped, the other says it was consensual. How does an impartial court decide?
Convictions are often based upon the fact that the victim was drunk, and therefore could not have consented, which would certainly amount to rape. But if the accused was drunk, is he expected to be able to determine that the victim was drunk also? We all agree that if an individual has been drinking, even minimal amounts though not being necessarily drunk, he cannot be legally trusted to drive a car because his judgment is impaired.
A conviction based largely upon the emotive aspects of a rape case cannot be legally upheld; it must be based solely upon the evidence. However, following such acquittals comes the rage I mentioned above, led largely by women's rights groups. The odd thing about such groups, not limited to Korea, is that many of them are led by lawyers, who I suspect missed the class on evidence during their studies.
Another problem with some social issue groups is that they have no real interest in fixing the problems they campaign for. If the problems were fixed what would be their purpose; how would they generate income? And if they closed, which private company is going to hire individuals whose sole talent is activism? Therefore, they perceive it to be in their best interests not to fix the problems, but to sustain and manage them, hence the acquittal of a famous person becomes perfect fodder.
Korea's problem is that rape has become so politicized that the courts might fear acquitting a rapist because of the potential social ramifications and the high-octane demonstrations, particularly if the accused is rich and or well connected.
But this legal "he said she said" quagmire could be fixed with a simple law change. Most female rape victims are unlikely to go immediately to the police and will choose instead to confide in their closest friend, who will often persuade the victim to report the matter. Currently laws in most countries, including Korea, do not allow that conversation to be admissible because it is considered hearsay, i.e. it occurred out of the earshot of the accused. Yet, that conversation is a very sensitive aspect of the rape event, and in many cases, a continuation of it.
If, in the case of rape, that first conversation were legally admissible, it would remove much of the doubt surrounding the allegations. It would also remove the confidence held by too many offenders who know that the appeals system will unlikely uphold a conviction based upon one person's word against another's, because now, we would have a witness!
The writer is a criminologist with a master's degree in criminology and criminal psychology. Contact him at dsrm@dsrm.kr.
