CONTENTS
- 1. Forcible Indecent Act, the Detailed Background
- - Forcible Indecent Act, the Relevant Statutes and Precedents
- 2. Forcible Indecent Act, the Lower Courts' Determination
- 3. Forcible Indecent Act, the Supreme Court's Determination
- 4. Forcible Indecent Act, Daeryun's Strategy
1. Forcible Indecent Act, the Detailed Background
The defendant charged with a forcible indecent act was A, a driving school instructor.
The case arose in 2021, while A was conducting a driving lesson for a woman.
The two were seated side by side in the driver's and passenger's seats during the lesson, but as the woman receiving instruction failed to follow A's directions well, the atmosphere turned sharply cold.
A eventually grew unable to contain his anger and went so far as to strike the woman.
In the course of this, A pushed the woman's thigh, and after the woman reported the incident, A came under investigation.
The prosecution 🔗indecent act by compulsion charged A, and A was thus brought to trial.
Forcible Indecent Act, the Relevant Statutes and Precedents
📌Relevant Statute
Article 298 of the Criminal Act (Indecent Act by Compulsion)
A person who commits an indecent act on another by violence or intimidation shall be punished by imprisonment for not more than ten years or by a fine not exceeding 15 million won.
📌Relevant Precedents
“An indecent act in the crime of a forcible indecent act means an act that objectively causes a sense of sexual shame or disgust in an ordinary person and runs counter to sound sexual moral notions, thereby infringing the victim's right to sexual self-determination. Whether a particular act constitutes an indecent act must be determined prudently, taking into comprehensive consideration the victim's intent, gender, and age, the prior relationship between the actor and the victim, the circumstances leading to the act, the specific manner of the act, the surrounding objective situation, and the sexual moral notions of the time.” (See Supreme Court, Decision of April 26, 2002, 2001 Do 2417; Supreme Court, Decision of May 14, 2020, 2019 Do 9872, among others.)
“For the crime of a forcible indecent act to be established, for each act at issue there must be recognized, in addition to violence or intimidation, an indecent act and the intent to commit it. In a criminal trial, a finding of guilt must rest on evidence with probative value sufficient to give the judge a conviction that the facts charged are true beyond a reasonable doubt; therefore, if proof of the intent to commit an indecent act is insufficient, then even if the defendant appears suspicious of guilt, he cannot be found guilty of a forcible indecent act.” (See Supreme Court, Decision of October 15, 2014, 2014 Do 4447, among others.)
2. Forcible Indecent Act, the Lower Courts' Determination
In the trial concerning the forcible indecent act, the court of first instance found A guilty of the charge.
The grounds were that the victim's statements were consistent and credible, and that A himself acknowledged the fact of having pushed the victim's thigh.
The court of first instance then held that A's act of pushing the victim's thigh was sufficient to cause a sense of sexual shame or disgust in an ordinary person, and it imposed a fine.
A, dissatisfied with this, filed an appeal, but the appellate court's determination was likewise the same as that of the court of first instance.
3. Forcible Indecent Act, the Supreme Court's Determination
The Supreme Court, which came to review the case concerning the forcible indecent act anew, reached a determination different from that of the lower courts.
The Supreme Court first focused on the victim's statements.
Regarding the situation at the time, the victim stated before the investigative agency and in court that “when she failed to drive as A directed, A became angry and struck her thigh.”
She also said that “it felt like A was someone who could not get the better of his own anger.”
In addition, during the first-instance trial, in response to the prosecutor's question, “Is it true that A touched, as if pushing, the upper part of your right thigh, just below the pelvis?”, she answered, “He did not touch it; he struck it.”
In response to the judge's question, “How did he hit the area where the trouser pocket is?”, she emphasized that “he struck the thigh with his fist, hitting it hard enough to make a thudding sound.”
A student who had received driving instruction from A around the same time also gave similar testimony.
That witness testified in court that “when, during a lesson, a student failed to watch the signals properly or a near-accident situation arose, A would tap the student's forearm or leg to give a warning.”
The Supreme Court closely examined these statements of the victim and the witness.
It then held that, in light of A's conduct toward the victim and a third party, it was difficult to infer the intent to commit an indecent act directly while excluding the possibility of an assault or the intent to commit an assault.
In response to the judge's further question of “whether A's striking of her thigh felt like he was literally hitting her or felt like he wanted to put his hand on her body,” the victim answered that “she did not know that far.”
The Supreme Court added that, in light of such statements, it was difficult to find that A had the intent to commit an indecent act at the time proven beyond a reasonable doubt.
The lower court, however, had erred by misapprehending the legal principles concerning whether an act constitutes an indecent act and the intent to commit an indecent act in the crime of a forcible indecent act; accordingly, the Supreme Court reversed the case and remanded it to the lower court.
4. Forcible Indecent Act, Daeryun's Strategy
This has been an analysis of a Supreme Court judgment holding that, when a charge of a forcible indecent act is tried, the intent to commit an indecent act must be closely examined.
In the case of sex offenses, unlike ordinary criminal cases, they often occur discreetly in a place where only the victim and the perpetrator are present, so securing related evidence can be very difficult.
For that reason, the victim's statements often serve as an important basis for a finding of guilt.
Accordingly, if you are involved in a sex offense, including a forcible indecent act, you may wish to obtain the assistance of a legal defense team.
Daeryun Law Firm LLP operates a 🔗Sexual Offense Response Group, which includes a number of attorneys experienced in sex offense matters with an average of more than ten years of practice.
If you have any questions regarding a forcible indecent act case, you are welcome to request a consultation with Daeryun Law Firm LLP at any time.
