Act on Special Cases concerning the Punishment of Sexual Crimes | Analysis of a Supreme Court Decision Holding That a Threat Made on the Pretext of Deleted Illegal Footage Is Also Subject to Criminal Punishment

The defendant in this case was a man, A.

A had maintained a long-term extramarital relationship with B, a woman in her forties, when he was suddenly notified that she wished to end the relationship.

A became greatly angered by this and went so far as to threaten B.

In the past, B had sent A a photograph she had taken of part of her own body, and A, referring to this fact, expressed his intention to distribute the photograph.

B, frightened by such conduct on A's part, reported him, and A was ultimately brought to trial on charges including threat using filmed material (a Korean offense of threatening a person using sexually explicit recordings, akin to sextortion) (sextortion) under the Act on Special Cases concerning the Punishment of Sexual Crimes.

During the trial, A denied the charges.

He claimed that he had merely blurted out the words in a fit of anger over the unilateral notice ending the relationship, and that he had not communicated any harm for the purpose of causing B to feel anxiety.

As to the distribution of the photograph as well, he argued that, because it was not a photograph taken against B's will, it could not be regarded as the filmed material or reproduction at issue under the Act on Special Cases concerning the Punishment of Sexual Crimes.

A further emphasized that, because he had already deleted the photograph at the time and therefore did not actually possess it, he was not subject to the Act on Special Cases concerning the Punishment of Sexual Crimes.

The following introduces the statutes and precedents that one should be aware of in connection with litigation under the Act on Special Cases concerning the Punishment of Sexual Crimes.

The court of first instance, which tried the litigation related to the Act on Special Cases concerning the Punishment of Sexual Crimes, sentenced A to imprisonment with a suspended sentence (a suspended sentence under Korean law, broadly comparable to a suspended sentence or probation in common-law systems, under which the conviction loses its effect once the suspension period passes without incident).

The court found it sufficiently established that A had threatened B using a photograph depicting her body.

The court also rejected A's argument concerning the provision of the ‘Act on Special Cases concerning the Punishment of Sexual Crimes.’

The court reasoned that the Act on Special Cases concerning the Punishment of Sexual Crimes merely provides for ‘a person who threatens another by using filmed material or a reproduction that may arouse sexual desire or shame,’ and does not separately state ‘filmed material or a reproduction taken against the will of the person filmed.’

In other words, the court's determination was that, whether the photograph was taken against the will of the person filmed or not, the fear the victim feels when the possibility of distribution comes to mind is the same in both cases.

The determination of the appellate court was likewise the same as that of the first instance.

During the appeal, A argued that “punishing even cases where the filmed material or reproduction does not exist at the time of the offense violates the principle of legality (nullum crimen, nulla poena sine lege).”

In response, the appellate court explained that “even if the filmed material does not actually exist at the time of the threat or is in a state where it cannot be distributed, so long as the victim is unaware of that fact, it should be found to fall under the elements of the offense prescribed by the Act on Special Cases concerning the Punishment of Sexual Crimes.”

Having received a suspended sentence on appeal as well, A immediately proceeded to a final appeal.

The Supreme Court, which handled the litigation under the Act on Special Cases concerning the Punishment of Sexual Crimes, also dismissed A's final appeal.

The Supreme Court stated that, where a defendant uses filmed material that has in fact been created as a means and communicates harm by referring to the possibility of its distribution, the offense under the Act on Special Cases concerning the Punishment of Sexual Crimes can be sufficiently established.

It added that it is not necessary that the actor threaten the victim by directly presenting the filmed material, etc., or that the actor be in a state capable of possessing·distributing the filmed material at that time.

In connection with litigation under the Act on Special Cases concerning the Punishment of Sexual Crimes, this analysis examined a Supreme Court decision holding that, even where one did not actually possess the illegal footage, a person may be punished if they proceeded to a threat while referring to the possibility of distribution.

As an environment in which various photographs and videos can be exchanged through social media has recently taken shape, many sexual offenses related to illegal filming have been occurring.

In particular, where a threat offense is committed on the pretext of illegal footage, the fear the other party may feel can be considerable.

For this reason, such conduct is generally punished more heavily than the simple crime of intimidation.

Accordingly, if you become subject to investigation or trial on charges related to the Act on Special Cases concerning the Punishment of Sexual Crimes, it is advisable to receive assistance from a legal team experienced in such matters.

Daeryun Law Firm LLP operates a ‘Sexual Offense Response Group’ composed of attorneys handling sexual offense matters who have, on average, more than 20 years of legal experience.

These attorneys personally attend to every stage from investigation through trial and assist clients in a systematic manner.

If you have related inquiries, you are welcome to reach out to Daeryun Law Firm LLP at any time.