Punishment for Public Indecency | Risk of Punishment for Public Indecency Resolved with Non-Referral

In this case, the client was charged with public indecency by the complainant and faced the risk of criminal punishment.

To a layperson, public indecency and the offense of excessive exposure may be perceived as the same crime, but they are clearly distinct criminal acts.

The level of punishment for the crime of public indecency is provided, under Article 245 of the Criminal Act, as imprisonment for up to 1 year, a fine of up to 5 million won, minor imprisonment, or a minor fine.

Although it is set at a lower level than other sexual offenses and may thus be regarded lightly, where imprisonment or a fine is imposed, not only a criminal record but also security dispositions such as registration of personal information may be ordered.

Where minor imprisonment (confinement in a prison or detention facility for a period of at least 1 day and less than 30 days) or a minor fine (the imposition of an amount of at least 2,000 won and less than 50,000 won) is imposed, however, one may avoid a criminal record and security dispositions.

If you face possible punishment for public indecency, the following responses may be advisable.

1. Denying intent in the conduct

For public indecency to be established, there must be an ‘intent to commit an indecent act.’

If it was a mere mistake (for example, clothing slipping while intoxicated, or a restroom mix-up), the point that there was no intent to commit an indecent act should be emphasized.

A strategy is needed to prove through CCTV, witness statements, and the circumstances at the scene that it was ‘an accident, not an intentional act.’

2. Contesting whether obscenity is recognized

The court regards conduct as public indecency only when it is ‘conduct that arouses sexual shame or disgust in an ordinary person.’

Where there was mere bodily exposure that is difficult to view as a sexual act, an argument for reduction to the offense of excessive exposure may be possible, so the obscenity itself can be contested by analyzing the surrounding circumstances, the time, the place, and the manner of the conduct at the time.

3. Reviewing the credibility of the victim's statement

Public indecency relies heavily on the victim's report and statement.

It is necessary to review who the witnesses were, whether the statements are consistent, and whether there are any exaggerated parts.

A strategy of pointing out contradictions in the victim's statement to undermine its credibility may be effective.

4. Attempting settlement and making efforts at restitution

In sexual offense cases, whether a settlement is reached with the victim has a very significant effect on sentencing.

Where a sincere apology and an appropriate settlement amount lead the victim to express a wish not to have the offender punished, the likelihood of non-prosecution or lenient treatment increases.

Even where settlement is difficult, lenient treatment may be obtained through a letter of reflection, community service, and completion of a treatment program.

5. Emphasizing efforts to prevent recidivism

In public indecency cases, the risk of recidivism is often at issue.

The offender should show a willingness to prevent recidivism through a sexual impulse control program, alcohol treatment (where the offense was committed while intoxicated), and completion of counseling.

The court is more likely to grant lenient treatment when it confirms that “the likelihood of recidivism is low.”

Where acquittal is possible, the strategy should aim at an early decision of non-referral or non-prosecution, and where conviction is likely, it should aim at the lowest possible sentence and at avoiding registration.

The sexual offense specialist attorney emphasized that the client did not commit an indecent act in public.

According to Supreme Court Judgment 2000Do4372, an indecent act refers to an act that arouses and stimulates the sexual desire of an ordinary person, impairs ordinary sexual shame, and runs counter to sexual moral notions.

In addition, according to Seoul Central District Court Judgment 2019Godan7655, “in public” refers to a state in which an unspecified person or a number of persons can perceive the indecent act.

The client engaged in masturbation while working in order to ward off drowsiness, but a partition panel was installed under the desk in the client's office, so the structure was such that the client's lower body was difficult to bring into view from the victim's seat.

In addition, on the date in question, there was no possibility whatsoever that a third party would enter the office.

Accordingly, the attorney argued that the client's act of masturbation could not be regarded as the commission of an indecent act in public and therefore did not constitute public indecency.

The sexual offense attorney emphasized that the client had no intent whatsoever to commit public indecency.

The client, convinced that the victim could not see the act of masturbation, minimized the motion, and moreover had no intent to cause the victim sexual humiliation.

The client did not intentionally expose or show the genitals to the victim, but rather masturbated covertly under a desk fitted with a partition.

Accordingly, the sexual offense attorney argued that it is difficult to find that the client had an intent to make the victim perceive the act of masturbation and feel sexual humiliation, so the intent to commit public indecency cannot be recognized.

The sexual offense attorney emphasized that there was no likelihood of the client reoffending.

The client sincerely reflected on their conduct and repeatedly expressed an apology to the victim.

The client recognized that their conduct was immoral and made efforts to prevent recurrence, such as applying for and participating in psychological counseling and a recurrence-prevention education program relating to sexual matters, and the sexual offense attorney submitted the client's counseling records on this point as evidence, emphasizing that there was no concern of the client reoffending in the future.