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Guide to the Crimes of Rape and Indecent Acts under the Criminal Act

Based on 39 consultation cases · Updated · Translated from the Korean original.

Whether rape, indecent assault by compulsion, quasi-rape, or a related offense under the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes has been committed depends on the manner of the conduct, the victim’s condition and relationship to the person involved, the location, and the circumstances surrounding any recording or distribution. The degree of violence or intimidation, whether the conduct was indecent, and the victim’s disability or mental or physical condition are assessed by considering the specific circumstances as a whole.

At a glance

People involved → Person whose conduct is assessed → Other person involved → Sexual conduct, force, or recording raises a possible offense → Did violence or intimidation make resistance impossible or significantly difficult Including between spouses? → Yes — Criminal Act Article 297 → An offense may be established → No → Was physical force used against the person's will or was the conduct indecent? → Yes — Criminal Act Article 298 → Was a disability-related inability or significant difficulty to resist exploited? → Yes — Special Act Article 6 → These tests alone do not establish an offense → Check whether a relative link includes a substantive de facto relationship — Special Act Article 5 → Check the relationship between the people involved → Check whether injury followed an attempted rape or quasi-rape — Criminal Act Articles 299, 300, and 301 → Check for physical or mental injury → Ch…

Key points

  • Forcible indecent assault does not require force sufficient to make resistance difficult: the use of physical force against the victim’s will may be enough, and the force itself may constitute the indecent act (Criminal Act, Article 298 (형법 제298조); Cases 4, 15, 18, and 22).
  • Whether conduct is indecent is determined by considering the victim’s wishes, sex and age, the relationship between the parties, the circumstances and manner of the conduct, and the surrounding situation. It is not always necessary that the actor intended to arouse or satisfy sexual desire (Cases 9, 15, and 18).
  • Even if no particular coercive force was used against a person with a disability, an offense under the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes may be established if the person’s state of inability or significant difficulty to resist, resulting from the disability, was exploited to have sexual intercourse with or commit an indecent act against that person (Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, Article 6 (성폭력범죄의 처벌 등에 관한 특례법 제6조); Case 1).
  • Rape by a relative may include not only relatives by law but also relatives by virtue of certain de facto relationships. Whether an affinity arising from a de facto marriage or a substantive adoptive relationship falls within this category depends on the specific relationship and its substance (Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, Article 5 (성폭력범죄의 처벌 등에 관한 특례법 제5조); Cases 2, 6, and 10).
  • Rape may be committed between spouses. The issue is determined comprehensively, including whether violence or intimidation against the spouse made resistance impossible or significantly difficult (Criminal Act, Article 297 (형법 제297조); Case 24).
  • Even if rape or quasi-rape was only attempted, the offense of rape resulting in injury may be established if an injury occurred after commencement of execution. Injury may include not only an external wound but also an impairment of mental functioning (Criminal Act, Articles 299, 300, and 301 (형법 제299조·제300조·제301조); Cases 16, 17, 21, and 23).
  • Even if there was consent at the time of recording, distributing the recording afterward against the recorded person’s wishes may be punishable. A video-recording offense may be complete once the video information has been entered into and temporarily stored in the device’s main memory or similar storage (Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, Articles 14 and 15 (성폭력범죄의 처벌 등에 관한 특례법 제14조·제15조); Cases 5 and 7).
  • The offenses of unlawful filming and obscene acts using communications media under the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes cannot be interpreted expansively beyond the conduct specified in the wording of the provisions. In light of the reasoning of the judgments in the cases, it was found difficult to punish under those provisions the re-recording of a body image shown on a screen or the direct delivery of a letter (Cases 12 and 19).

Frequently asked questions

Q. Can momentarily touching someone’s body constitute indecent assault by compulsion?

Yes. If it involves the use of physical force against the other person’s will, it may constitute assault even if the force is slight or momentary; physical contact itself may also be considered an indecent act. Whether conduct constitutes an indecent act is determined by considering the circumstances and manner of the conduct, among other factors.

Case 15, Case 22

Q. Can attempted indecent assault by compulsion be established even if I tried to hug someone but did not touch them?

If a person begins using physical force against the other person’s will with the intent to commit an indecent act, but does not achieve that result, the offense of attempted indecent assault by compulsion may be established. In one case, the court found that raising both arms in an attempt to suddenly hug someone from behind constituted commencement of execution.

Case 4

Q. If a victim with a disability did not resist, does that mean quasi-rape of a person with a disability was not committed?

The fact that the victim did not resist is not, by itself, enough to conclude that no crime was committed. The issue is determined by considering, among other things, whether the victim was in a state in which a disability made it impossible or significantly difficult to express a refusal or resist, the relationship between the parties and the surrounding circumstances, the nature of the conduct, and the victim’s reaction.

Case 1

Q. Can a stepfather in a de facto marital relationship or someone who actually raised a person be considered a relative for purposes of rape by a relative?

A relative by marriage arising from a de facto marital relationship, or a de facto adoptive father who satisfies the substantive requirements for adoption, may be recognized as a relative by virtue of a de facto relationship. The issue must, however, be determined based on the substance of the relationship and the specific circumstances, including whether there was an agreement to adopt.

Case 2, Case 6, Case 10

Q. Can rape be committed between spouses?

Yes. Rape may be established even while the marriage remains in effect if a spouse has sexual intercourse with the other spouse after using violence or intimidation of such a degree as to make resistance impossible or significantly difficult.

Case 24

Q. If the other person consented to being recorded, can I later post the video online?

Even if the person consented to the recording when it was made, distributing the recording afterward against the recorded person’s will may be punishable under the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes. Consent to the recording and the person’s wishes at the time of distribution must be considered separately.

Case 7

Q. If I stopped recording before pressing the save button, was it only an attempt?

According to the judgment in the case, the offense may be complete once video recording has begun and the video information has been entered into and temporarily stored in the device’s main memory or similar storage. The fact that it was not permanently saved does not, by itself, mean the offense was only attempted.

Case 5

Q. If rape was only attempted but the victim was injured, can rape resulting in injury be established?

It may be. Even if the underlying offense of rape was only attempted, the offense of rape resulting in injury may be established if an injury occurred during its commission. Injury may include not only an external wound but also an impairment of mental functioning.

Case 16, Case 17, Case 23

Q. Can rape be established if someone had sexual intercourse after time had passed following a threat to expose an extramarital relationship?

Rape may be established even if time passed between the intimidation and the sexual intercourse, provided that the intercourse is found to have occurred as a result of the intimidation. Whether the intimidation was sufficient to make it difficult for the victim to resist is determined by considering its content and scope, its likely effect on the victim, and other factors.

Case 20

Relevant laws

  • Criminal Act, Article 10 (형법 제10조)
  • Criminal Act, Article 297 (형법 제297조)
  • Criminal Act, Article 298 (형법 제298조)
  • Criminal Act, Article 299 (형법 제299조)
  • Criminal Act, Article 300 (형법 제300조)
  • Criminal Act, Article 301 (형법 제301조)
  • Criminal Act, Article 306 (형법 제306조)
  • Criminal Act, Article 333 (형법 제333조)
  • Criminal Act, Article 334 (형법 제334조)
  • Criminal Act, Article 344 (형법 제344조)
  • Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, Article 2 (성폭력범죄의 처벌 등에 관한 특례법 제2조)
  • Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, Article 3 (성폭력범죄의 처벌 등에 관한 특례법 제3조)
  • Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, Article 4 (성폭력범죄의 처벌 등에 관한 특례법 제4조)
  • Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, Article 5 (성폭력범죄의 처벌 등에 관한 특례법 제5조)
  • Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, Article 6 (성폭력범죄의 처벌 등에 관한 특례법 제6조)

Watch out for

  • The conclusions in the cases depend on their specific facts. The fact that a situation is similar does not mean the same conclusion will always be reached as to whether a crime was committed.
  • The cases refer both to provisions from before and after amendments to the law, as well as to earlier judgments. The applicable law and provisions may vary depending on when the conduct occurred.
  • Whether there was consent to the recording and whether there was consent to its subsequent distribution must be considered separately.
  • The mere fact that a person has a mental disability or illness does not automatically establish mental incapacity or a state of inability or significant difficulty to resist.

Related articles

Source cases

This guide was compiled by AI from the following Korea Legal Aid Corporation consultation cases (in Korean).

  1. 별다른 강제력을 행사하지 아니하고 장애여성을 간음한 경우
  2. 의붓아버지가 의붓딸을 강간한 경우 형사책임
  3. 소아기호증 질환이 심신장애사유에 해당하는지
  4. 강제추행죄와 그 미수
  5. 카메라 등 이용 촬영죄의 기수시기
  6. 사실혼관계 인척이 성폭력범죄처벌법상의 사실상의 친족인지
  7. 타인의 승낙을 받아 촬영한 영상물을 반포한 경우
  8. 단순강간으로 강간치상죄가 된 경우 특정강력범죄 해당 여부
  9. 13세 미만의 미성년자에 대한 추행죄에 주관적 동기나 목적이 필요한지
  10. 사실상의 양자의 양부가 ‘사실상의 관계의 의한 친족’에 해당하는지
  11. 특수강간범이 강간행위 종료 전에 강도의 행위를 한 경우
  12. 성폭력범죄의 처벌 등에 관한 특례법상 카메라 등을 이용한 촬영
  13. 군형법과 성폭력범죄의 처벌 등에 관한 특례법
  14. 사람이 빽빽이 들어서 있지 않은 곳도 ‘공중이 밀집하는 장소’에 해당할 수 있는지
  15. 강제추행죄에 있어서 폭행
  16. 강간이 미수에 그친 경우 강간치상죄가 성립되는지
  17. 강간치상죄의 상해
  18. 강제추행의 성립
  19. 통신매체를 이용한 음란행위
  20. 협박과 추행 사이에 시간적 간격이 있는 경우의 강간 및 강제추행
  21. 준강간죄의 실행의 착수시기
  22. 순간적으로 스쳐도 강제추행인지 여부
  23. 강간 후 스트레스장애가 성폭력범죄처벌법상의 상해인지
  24. 부부간 강간죄의 성립 요건
  25. 여성으로 성전환수술한 남자를 성폭행한 경우 강간죄 성립 여부

This guide is general legal information about Korean law, not legal advice for your situation. For a specific case, consult a lawyer or the Korea Legal Aid Corporation (call 132 in Korea).