If you feel sexually humiliated, is it sexual harassment?... Looking at the legal standards [I don’t know the law]

Whether the victim felt ‘sexual shame’ during the procedure
“Evidence is admissible only if the statements are consistent.”
The standard for ‘shame’ is also acceptable according to ‘social norms’
‘Scope of treatment’ must be agreed upon in advance to avoid legal disputes

Last month, a traditional dancer and Hanbok designer was indicted on charges of violating the Act on the Protection of Children and Adolescents from Sex (Acheong Act) by sexually harassing his same-sex high school student. His student reportedly stated in a statement to the prosecution, “(The perpetrator) put his hand inside his underwear under the pretext of giving him a massage.”

As cases of sexual harassment crimes committed under the pretext of massage treatment continue to occur, questions are growing about the legal standards that distinguish between the two acts. Experts emphasize that in order to prevent unfair cases for both suspects and victims, it is important to leave evidence of 'intention' in advance.

“The victim’s ‘sexual shame’ is the only evidence? Exaggerated.”
The scope of the procedure must be agreed upon in advance through a consent form and recording.

It is true that massage performed for therapeutic or cosmetic purposes is difficult to distinguish from sexual harassment in that it involves physical contact. In addition, there are cases where some clothes must be removed during the procedure, so there is usually no closed-circuit television (CCTV) inside the procedure room and it is difficult to find nearby witnesses.

According to the 2002 Supreme Court precedent, physical contact, commonly referred to as ‘sexual harassment,’ is punished under Article 298 of the Criminal Act. The provision states that a person who commits an indecent act against another person through assault or intimidation shall be punished by imprisonment for not more than 10 years or by a fine not exceeding 15 million won. The Supreme Court believes that applying tangible force to the body against the will of the other person also violates the law under the term 'surprise molestation'.

If the victim of forced molestation is a minor, Article 7, Paragraph 3 of the Acheong Act may be applied and the offender may be sentenced to imprisonment for a period of more than two years or to a fine of not less than 10 million won but not more than 30 million won. Additionally, according to Article 20 of the same Act (Special Provisions on Statute of Limitations), the statute of limitations under the Criminal Procedure Act does not apply.

It is known that the 'sexual shame' felt by the victim is usually the standard for determining whether physical contact, such as a massage, constitutes forcible molestation, but experts point out that the interpretation of the law is somewhat exaggerated. The explanation is that since subjectivity is greatly involved, consistent statements must be made for sexual shame to be recognized at trial.

In fact, in 2020, the court acquitted the defendant, a sports manager, in a case of forced molestation that occurred at a sports center in Seongnam, Gyeonggi-do, on the grounds that the victim's statements were inconsistent. The victim who received a massage from him was unable to acknowledge her sexual humiliation as the body part touched changed during the statement.

Choi Hyeon-deok, lawyer at Daeryun Law Firm, said, "In sexual crimes, it is often thought that the victim is unconditionally the center, but in reality, the court considers whether sexual shame is applied based on the standards of 'ordinary people' with general social norms," ​​and emphasized, "It is an exaggeration to say that 'the victim's tears are evidence' in sexual crime trials."

Byeong-cheol Han, a lawyer at the Korea Central Law Firm, explained, "Of course, it is true that the shame felt by the victim becomes a major judgment standard for police and other investigators during the indictment stage," but added, "However, when entering a trial, numerous materials and context are identified, and even lie detectors are used. Unlike the past when courts accepted testimony as the only evidence, there is a growing tendency to accurately examine the circumstances."

In a trial, an important criterion to distinguish between massage treatment and forced molestation is ‘intentionality.’ Therefore, experts advise that in order to prevent legal disputes between the suspect and the victim, the scope of massage treatment must be agreed upon in advance.

Attorney Byeong-cheol Han said, "When receiving treatment at a professional massage shop, unnecessary controversy can be reduced if the scope of the treatment is clearly announced in advance and a consent form is obtained. When giving or receiving a massage in everyday life, it is effective to record the situation at the time. Recording the conversation between the parties is not illegal even without consent."

In order to prevent victims from being unfairly accused of making false accusations, it is important to report quickly and secure evidence to prove the suspect's intent. One lawyer emphasized, “Even if you report forced harassment, the actual trial will take place at least six months later, so the circumstances at the time may be confusing in subsequent testimony,” and added, “You must leave evidence in various ways in advance.”

One lawyer added, "As soon as you see the damage, leave a KakaoTalk or text message about the situation at the time to an acquaintance or friend, or if you received sexual counseling, keep a diary to increase the evidence of your testimony." He added, "However, you must keep in mind that shame is at the level of 'social norms' and take legal action."

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