Assistance With a Public Indecency Charge | A Client Reported for Public Indecency Due to a Misunderstanding, Concluded With a Non-Referral

The client asserted that, although the client had exercised or rested in the office, the client had not at all committed the obscene act that the reporter claimed.

Accordingly, the criminal defense lawyer analyzed the video filmed by the reporter in collaboration with this firm's Digital Forensics Center.

As a result, the video only partially showed the movement of the client's hands and arms, but there was no scene from which it could be judged that an obscene act was actually being committed.

The lawyer also emphasized that what the client had moved was, in the process of exercising, the act of grasping and shaking the top to cool off the sweat.

In this regard, the Supreme Court has held that even where there was exposure of the body, public indecency is not established where it does not reach the degree of stimulating the sexual desire of an ordinary person or harming the normal sense of sexual shame (Supreme Court Decision 2003Do6514, March 12, 2004).

Based on the above precedent, the criminal defense lawyer asserted that the client's conduct could not be regarded as an obscene act and that the evidence to establish it was insufficient.

The client's office was structured so that all sides were made of transparent glass, allowing the interior to be seen easily from the outside.

In addition, at the time of the incident there were also employees working in the office, and immediately after finishing exercising, a business counterpart was arranged to visit and carry out work.

Considering these circumstances, the criminal defense lawyer strongly emphasized that the client had no reason to commit an obscene act while taking such a risk.

After learning of the report, the client made efforts to resolve the misunderstanding directly.

The client went to the building across the way where the reporter worked, explained the client's position, and delivered a letter apologizing for having apparently caused a misunderstanding.

Afterward, the client received a note from the reporter stating that the reporter seemed to have misunderstood the situation, and the criminal defense lawyer submitted that note as evidence.

Through this, the lawyer emphasized that there was a strong possibility that the report had been made while the reporter had not clearly confirmed the situation at the time, and asserted that it was difficult to find the suspected charge of public indecency.

Under Article 245 of the Criminal Act, the crime is established where a person publicly commits an obscene act, and the person may be punished by imprisonment for not more than one year, a fine not exceeding 5 million won, misdemeanor imprisonment, or a minor fine.

Regarding the elements of public indecency, the Supreme Court has held as follows.

Supreme Court Decision 2003Do6514, March 12, 2004
The term "obscene act" under Article 245 of the Criminal Act refers to conduct that stimulates the sexual desire of an ordinary person, arouses sexual excitement, harms the normal sense of sexual shame, and thereby offends the sense of sexual morality, and this crime is not established only where there is a subjective sexual purpose such as the arousal or satisfaction of sexual desire; it suffices that there is an awareness of the meaning of the obscenity of the act.

In other words, the crime is generally not established merely on the ground that another person felt discomfort or misunderstood.

Whether the conduct at issue amounts to an obscene act to the degree of harming an ordinary person's sense of sexual shame, and whether such conduct actually took place under the circumstances at the time, are examined specifically and judged.

In this case as well, it was importantly considered that it was difficult to find that the client had actually committed an obscene act on the basis of the reporter's misunderstanding alone.