CONTENTS
- 1. Tongyeong Law Firm | Background of the Case
- - A Criminal Act Committed by the Client in a Blackout State While Intoxicated
- - Testimony of Fellow Teachers
- 2. Tongyeong Law Firm | The Law on Indecent Act by Compulsion Facing the Client
- - Blackout vs. Passing Out
- 3. Tongyeong Law Firm | The Client's Contrition and Remorse
- 4. Tongyeong Law Firm | Trial Outcome, Suspension of Sentencing
1. Tongyeong Law Firm | Background of the Case
The client is an education official who worked diligently as an elementary school teacher for 17 years, receiving a model teacher commendation every year.
However, as a result of this case, the client was at risk of being dismissed from the position of education official. Above all, the client explained that he was deeply regretful and resentful of himself because he had committed an irreparable wrong against the victim.
A Criminal Act Committed by the Client in a Blackout State While Intoxicated
According to the client, the indecent act by compulsion occurred at a dinner gathering held after a school trip had been safely completed.
It was a gathering with six of his closest colleagues, and the client attended after being invited by another teacher.
The incident occurred at the third round of drinking. While the client was severely intoxicated and in a blackout state, he touched and stroked private parts of the victim's body.
Testimony of Fellow Teachers
The client then spent the weekend without any memory of what had happened and went to work on Monday.
Another fellow teacher spoke to the client and asked whether he had done anything inappropriate toward the victim at the dinner gathering.
Having learned of the offense while having no memory of it at all, the client was shocked and went directly to the victim to offer an apology.
However, the victim conveyed to the client that she had felt an irreparable sense of humiliation and shame, and she proceeded with a criminal complaint.
As a result, the client, facing a situation in which he had to leave the teaching career he had devoted himself to for 17 years because of a single mistake, came to a Tongyeong attorney.
2. Tongyeong Law Firm | The Law on Indecent Act by Compulsion Facing the Client
The attorney explained that the client's case may be punished under the offense of indecent act by compulsion as follows.
The offense of indecent act by compulsion may be punished under Article 298 of the Criminal Act.
Article 298 of the Criminal Act
If the client and the victim had been in a relationship of employment or of protection or supervision in the course of duties, the case may fall under Article 303 of the Criminal Act (Sexual Intercourse by Abuse of Occupational Authority).
Article 303 of the Criminal Act
Because the client is an education official, he may also be subject to a disciplinary action under the Act on Public Educational Officials.
Article 10-4, Item 3 of the Act on Public Educational Officials
Blackout vs. Passing Out
The client committed the offense of indecent act by compulsion while severely intoxicated.
What is the difference between a blackout and passing out, which can be relevant to sentencing?
This refers to the loss of memory of events that took place during a certain period of time.
The state commonly described as “having lost the film” can be called a blackout.
It can be divided into a total blackout, in which a person has no memory at all of a certain period after drinking, and a fragmentary blackout, in which memory is lost in fragments.
A case such as that of the client may be regarded as a fragmentary blackout.
This refers to a state of loss of consciousness in which a person falls asleep due to intoxication.
Passing out goes a step beyond a blackout and refers to a state in which consciousness is lost and there is no ability to control one's conduct.
If it had been the victim, rather than the client, who was in a blackout or a passing-out state, which legal principles would apply?
If the victim had been in a blackout state, this cannot be regarded as a state of mental incapacity, because cognitive function and consciousness remain normal and the person merely fails to remember.
However, if the offense had been carried out while the victim had fallen asleep and lost consciousness, this would amount to mental incapacity, and it may be punished as quasi-rape or quasi-indecent act by compulsion under Article 299 of the Criminal Act.
3. Tongyeong Law Firm | The Client's Contrition and Remorse
The client showed deep contrition and remorse for having committed an indecent act against the victim, who was a fellow teacher and a close friend.
However severely intoxicated he had been when he committed the offense, the client explained that he blamed himself every day and was regretful for the indecent act committed against the victim's will.
With the assistance of the attorney, the client consistently received treatment for alcohol dependence, sexual-awareness assessment, and psychological counseling, and he made efforts not to reoffend by completing sexual offense prevention education.
He also sent the victim a total of 40 letters to convey his apology.
4. Tongyeong Law Firm | Trial Outcome, Suspension of Sentencing
With the assistance of the attorney, the client was able to receive a judgment of suspension of sentencing.
The attorney emphasized that the client admitted all of the charges and showed a sincere attitude of remorse, and strongly argued that he was a first-time offender who had never repeated a similar offense.
The attorney also argued that the offense was committed under the influence of alcohol to the degree that the client could not remember what happened at the time, and that it was not planned but occurred spontaneously.
The court, comprehensively assessing the client's diligent participation in the trial and his efforts to help the victim recover, issued a judgment of suspension of sentencing.
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