Daejeon Attorney Recommendation Case | A Recommended Daejeon Attorney's Client Successfully Obtained a No-Prosecution Decision on Quasi-Rape and Indecent Act by Compulsion Charges

The charges the client faced were quasi-rape and 🔗indecent act by compulsion.

Quasi-rape refers to a crime established by engaging in sexual intercourse or an indecent act by taking advantage of a person in a state of mental or physical incapacity or inability to resist.

Unlike 🔗rape, it does not involve a violent element such as assault or intimidation. However, because it exploits a victim who is in a state of inability to resist or mental or physical incapacity, it is regarded as a crime similar to rape.

As with rape, no fine applies, and it is a crime for which imprisonment for a definite term of at least 3 years may be imposed.

Indecent act by compulsion refers to committing an indecent act against a person through assault or intimidation.

The crime of indecent act by compulsion is punishable by imprisonment for up to 10 years or a fine of up to 15 million won.

The client stated that his wife had not been in a state of inability to resist and that the sexual relations had been consensual.

The Supreme Court does recognize rape between spouses, but takes the view that the matter must be judged carefully by taking into account all circumstances, including whether the nature and degree of the assault or intimidation reached a level that essentially infringed upon the wife's right to sexual self-determination, the circumstances under which the husband exercised physical force, the form of the marital life and the spouses' usual sexual conduct, and the situation at the time of intercourse and thereafter (Supreme Court, May 16, 2013, 2012Do14788).

On the day in question as alleged by the wife, the client and his wife enjoyed a meal out and stayed at a nearby lodging.

After the sexual relations, the client and his wife also took a selfie together.

If the wife had been in a state of inability to resist or had not consented to the sexual relations, she would not have engaged in conduct such as taking a selfie afterward.

On the basis of this evidence, the Daejeon attorney rebutted the wife's claims.

The client asserted that, while pursuing divorce litigation, his wife had filed a malicious accusation.

In fact, the client and his wife continued to have sexual relations even after the divorce mediation was successfully established.

On the basis of these circumstances, the Daejeon attorney argued that it was difficult to assess the sexual conduct between the two as having infringed upon the wife's right to sexual self-determination.

In the course of the divorce, the wife was demanding an excessive division of marital property, and her feelings toward the client were very hostile.

In addition, the wife was unable to provide statements regarding the specific time and conduct of the alleged indecent act by compulsion.

The Daejeon attorney emphasized that, with respect to the alleged facts of quasi-rape and indecent act by compulsion, the wife's statement was the only evidence, that this statement was difficult to credit, and that there was no other evidence to support the allegations, so a no-referral decision should be made pursuant to Article 325 of the Criminal Procedure Act.