Indecent Act by Compulsion against Military Personnel | A Case of a Service Member Client Cleared of an Indecent Act by Compulsion Allegation and Concluded with Non-Referral

The client, an active-duty corporal, was accused of an indecent act by compulsion against military personnel by fellow enlisted soldiers who served in the same barracks within his unit.

The complainants alleged that the client had repeatedly engaged in inappropriate physical contact, such as fondling their chests and slapping their buttocks.

The client, however, completely denied these allegations.

On the contrary, it was the complainants who had frequently harassed the client through physical contact or tormented him with sexual words and conduct within the unit.

The client said that, although several sexual misconduct incidents had already occurred within the same platoon, he had hesitated to report them for the reason that he did not want to create yet another problem.

However, when he said, “I will no longer tolerate this; if anything like that happens one more time, I will file a complaint,” the complainants, on the contrary, filed a retaliatory complaint.

The client, who pleaded his innocence, prepared his defense with the assistance of a military law attorney.

A comparative analysis of the complainants' statements confirmed that their specific descriptions of time, place, and circumstances were inconsistent and that there were numerous contradictions among their mutual statements.

In particular, in order to prove that the alleged time of the harm did not match the actual service schedule, the barracks duty records, the duty officer's log, and the service log, among others, were obtained.

The defense presented the Supreme Court precedent holding that, in a sex crime, guilt cannot be established on the basis of the victim's statement alone and that the objective credibility of that statement must be assured (Supreme Court Decision 2009Do12048).

Through this, the defense emphasized that it is difficult to prove the fact of a crime on the basis of mere emotional statements or unclear circumstances.

By submitting the full text of the diary kept by the client as evidence, the defense specifically proved that the client had been subjected to continuous sexual harassment and inappropriate words and conduct by the complainants.

The defense supported the circumstances of the indecent act by obtaining statements from fellow service members establishing that the complainants had, on the contrary, first attempted physical contact with the client.

In addition, pointing out that the complaint was filed immediately after the client said that he would respond legally the next time, the defense emphasized that there was a high likelihood that the complaint was a false report made for the purpose of retaliation.

Article 92-3 of the Military Criminal Act provides as follows.

“A person who commits an indecent act against military personnel by violence or intimidation shall be punished by imprisonment for a definite term of not less than 1 year.”

This provision sets a far stricter standard than the crime of indecent act by compulsion under the general Criminal Act, as the option of a fine is not available and the offense must necessarily be punished by imprisonment or heavier.

Here, military personnel and the like include the following persons.

· Officers, warrant officers, noncommissioned officers, and enlisted personnel serving on active duty

· Military civilian employees, military academy cadets, noncommissioned officer candidates, and other students holding military status

· Reservists and supplemental service personnel called up for service

In other words, it applies equally to members of all ranks belonging to the military.

· Securing consistency at the early statement stage
– Because an unfavorable statement made early in the investigation is difficult to rebut afterward, statements must be given with the assistance of an attorney.

· Securing objective material
– Materials that prove a ‘pattern of daily life,’ such as a diary, text messages, KakaoTalk messages, and a duty log, become key evidence against a presumption of guilt.

· Analyzing whether there was a retaliatory purpose
– A motive analysis that takes into account interpersonal relationships within the military organization, service conflicts, and the chain of command is necessary.

· Considering the distinctive features of military investigative agencies
– The investigation process of the military police is faster than ordinary criminal procedure, and the proportion of statements that are reduced to a written record is high, so an early response is very important.

· Being mindful of military disciplinary action
– Separately from the criminal outcome, internal military disciplinary action (such as demotion or discharge) may proceed in parallel, so a response on both the criminal and administrative fronts is necessary.

A sexual misconduct case involving a person in military status is treated far more seriously than an ordinary criminal case.

Article 92-3 of the Military Criminal Act provides only for imprisonment for a definite term of not less than 1 year, with no option of a fine, so becoming the subject of an investigation on a wrongful allegation can jeopardize an entire military career.

Therefore, from the early investigation-response stage, the assistance of a military law attorney well versed in the Military Criminal Act and military trial procedure is essential.

If objective evidence and consistency of statements are secured, a non-referral conclusion can be achieved, as in this case.

After resolving his grievance through the non-referral decision, the client in this case is, with the assistance of a military law attorney, preparing a counter-complaint against the complainants.

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