Rape (Sexual Assault)

Rape (sexual assault) may be punishable by imprisonment for a definite term of at least three years.

This crime is classified as a serious offense for which a suspended sentence is difficult to obtain, and depending on the circumstances, it may be subject to aggravated punishment as rape resulting in death, rape causing death, or an offense committed against a minor.

Let us examine the sentencing guidelines for rape.

▶Rape (victims aged 13 or older)

※ Imitative rape against an adult is classified as Type 1, in which case the upper and lower limits of the sentencing range are mitigated to two-thirds.
※ Sexual intercourse or an imitative sexual act against a youth by deceit or coercion is included in Type 2.

▶Standards for Aggravating the Sentence in the Case of a Repeat Offense

If a specific violent crime applies (for example, a repeat offense), the upper and lower limits of the sentence are increased by a factor of 1.5.

A heavier standard is applied compared to an ordinary repeat offense (of the same type of crime).

The same applies in the case of robbery-rape.

▶Aggravating Factors

1. Special aggravating grounds

-Use of a sadistic or perverse method
-Repeated offenses against several victims
-If the victim was in a situation especially difficult to resist
-Rape with intrusion upon habitation, special rape, and the like
-Rape or gang rape by a relative
-If the victim was pregnant
-If a leader incited another person to commit rape

2. General aggravating grounds

-A premeditated offense
-Sexual intercourse on several occasions under the same circumstances
-An offense committed for a blameworthy motive
-An offense committed by inducing a state of mental disorder
-An offense against a youth or a relative
-Abuse of a relationship of personal trust
-A prior record of similar sexual offenses
-Committing the offense in a state of severe intoxication from alcohol or drugs is also applied as an aggravating factor rather than a mitigating one

▶Mitigating Factors

1. Special mitigating grounds

-Special circumstances such as a hearing or speech disability
-Diminished mental capacity (where the offender is not responsible for it)
-Voluntary surrender
-If the victim does not wish the offender to be punished
-No prior criminal record
-Sincere repentance
-If substantial recovery of the harm has been achieved

2. General mitigating grounds

-If the offender participated passively in the offense
-An offense committed under the influence of another through coercion or threat
-If the offender was intoxicated but not in a state of diminished mental capacity, this is not a mitigating factor

▶Special Standards for Sexual Offenses Committed in a State of Alcohol or Drug Intoxication

If rape or sexual molestation is committed in a state of alcohol or drug intoxication, the following standards apply.

-If a person voluntarily entered a state of severe intoxication in order to commit the offense or to conceal it:
The sentence is assessed more heavily regardless of whether there was diminished mental capacity.

-If there was no intent to commit the offense, but the risk was sufficiently foreseeable given the person's condition or past experience:
No mitigation is granted regardless of whether there was diminished mental capacity.

1. Date rape

This is a case that exploits a relationship with a partner or acquaintance, and applies where sexual intercourse takes place despite the victim's clear expression of refusal.

2. Quasi-rape occurring in a state of intoxication

If a person in a state of loss of consciousness or inability to resist is subjected to sexual intercourse, the issue is whether the victim was in a state of intoxication that made expressing intent impossible.

3. Sexual assault based on a workplace or power relationship

If a position such as that of a supervisor, teacher, or coach is used to make resistance difficult, the conduct may be recognized as rape.

4. A case occurring after staying overnight together or going to a motel together

Whether the relationship was 'consensual' is the main issue, and indirect circumstantial evidence such as text messages, KakaoTalk, CCTV, and recorded conversations is the key.

Let us examine how to respond to rape (sexual assault) from the suspect's position.

▶Unconditional admission or denial must be avoided

Unconditionally admitting to the offense while psychologically intimidated during a police investigation can operate as an unfavorable statement in subsequent legal proceedings.

In particular, a sexual offense case may have an investigation initiated based solely on the one-sided statement of the victim, and the suspect's statement becomes a key basis for determining not only whether the charge is admitted but also the intent behind the offense, whether there was consent, and similar matters.

Conversely, an unconditional denial that differs from the facts is equally dangerous.

If objective evidence and the suspect's statement clearly conflict during the investigation or trial, the credibility of the entire statement may instead be undermined, which can become a ground for aggravated punishment.

Therefore, rather than unconditionally admitting or unconditionally denying, it is important to organize the facts accurately and explain them consistently within the range of what is remembered.

Before giving a statement, one should approach it after sufficiently understanding what the legal elements of 'rape' are and which points are at issue.

If possible, receiving the assistance of defense counsel experienced in sexual offense cases from the early investigation stage is the safest approach.

▶Collecting and preserving evidence

-Text messages and KakaoTalk conversations from the day of the incident
-CCTV footage from a motel, bar, or similar location
-Recorded calls and materials indicating the victim's solicitation or voluntary conduct

Such evidence is very important in proving that the relationship was consensual.

▶Maintaining consistency in statements

Because the victim's statement is the most important evidence in a rape case, the consistency of the suspect's statement becomes a key point of defense.

If the early investigative statement and the courtroom statement conflict, an unfavorable determination may be made.

▶Exploring the possibility of settlement

Although sexual offenses have been excluded from crimes not punishable against the victim's will, a settlement with the victim becomes an important factor in reducing the sentence or inducing a non-prosecution disposition.

However, since there are many cases in which the victim refuses a criminal settlement, the feasibility must be reviewed carefully.

Let us examine how to respond to rape (sexual assault) from the victim's position.

▶Immediate statement and securing of evidence

-Reporting to and giving a statement to the police immediately after the incident
-Medical records (obstetrics and gynecology, emergency room)
-A history of psychological counseling
-Preservation of the clothing worn at the time of the harm and the mobile phone

These items of evidence must be kept from being damaged until the police conduct an on-site investigation, and a delayed report may lower the credibility of the victim's statement.

▶Securing specificity and consistency in statements

-In preparation for questions repeated during the investigation, one should organize the order of the statement and master the key contents. Expressions that differ from the facts or exaggerated descriptions may create room for rebuttal, so caution is required.

▶Preventing secondary harm

-If persuasion, threats, retaliation, or the like by the offender or persons around the offender is anticipated, one may request temporary measures such as a prohibition of contact and approach by applying for a protection order for victims of sexual violence.
-In particular, where the suspect attempts to approach or defames or threatens the victim online, evidence should be secured immediately and submitted to the police.

Rape is a highly legal matter in which guilt or innocence, and even the sentence, vary depending on the contradictions, differences, and interpretation of meaning in the parties' statements.

Simply stating the facts or pleading one's grievance is not enough to mount a defense or to obtain punishment.

Moreover, while the investigative agency aims at 'proving the charge,' the suspect or victim should focus on protecting their own legal interests, and this can be carried out effectively through an attorney.

From the suspect's position, one must minimize unfavorable statements and construct a defense strategy by interpreting the circumstantial evidence legally, and from the victim's position, one must coordinate consistent statements, the securing of supporting evidence, and legal protective measures in order to pursue both recovery from the harm and the inducement of punishment.

As this shows, a rape case calls for a legal and strategic response rather than an emotional one, so receiving the assistance of an attorney with extensive experience in sexual offense cases at an early stage is the best approach.

At Daeryun Law Firm, attorneys experienced in sexual offense cases provide thorough legal support throughout the entire process, from the initial statement to trial, and grasp the case promptly and accurately on the basis of strict confidential consultation.

In addition, through organic collaboration with the firm's Evidence Investigation Center, Digital Forensics Center, and Security Center, the firm provides comprehensive services for the practical resolution of the case, including the design of statements, the securing of evidence, and the prevention of secondary harm.