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[Daniel Fiedler] Redefining rape in South Korea

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Published : 2012-04-24 18:31
Updated : 2012-04-24 18:31

Rape is in the South Korean news headlines once again. However, this time it is not the brutality of a U.S. soldier but the perfidy of a Korean talent agency chief that occupies the front page. While the story is an old one, that of men using alcohol and position to coerce women into sex, the alleged addition of an “aphrodisiac” is the twist that changes a Korean dating norm into the crime of rape. This change occurs because the addition of a drug, rather than only soju, to the beer gives the victims a way to prove that they were either unconscious or unable to resist the attack. For the South Korean rape law requires a perpetrator have sexual intercourse with a female either through the use of violence or intimidation or by taking advantage of the victim’s condition of unconsciousness or inability to resist. And Korean prosecutors and courts define the latter as requiring complete and total unconsciousness or inability to resist, not just an alcoholic blackout brought about by excessive alcohol consumption.

In practice this means that every woman in South Korea who drinks even moderately is at the risk of being forced into sexual intercourse with any man whom she happens to accompany, or even whom she meets that evening. Date rape and acquaintance rape are unfamiliar western concepts and many young Korean women are not cognizant of the potential danger. The frequency of such drunken assaults combined with an outdated and misogynistic attitude that any woman who drinks gets what she deserves means that a victim who reports such a crime often suffers through irrational police and prosecutorial interrogations. Victims of rape also endure repeated questioning concerning their attire. If a woman was wearing a short skirt or a low cut blouse prior to the attack she will be blamed for having “lit a fire” that a man cannot control and the result of which he cannot be blamed for. Even more egregious is the oft cited concept that rape is merely a man’s mistake that should be forgiven. All of these legal and cultural factors combined mean that even the few rapes that are reported are lightly prosecuted and the victim is often forced by the legal system to accept a monetary settlement from her rapist, effectively in return for services rendered.

Fortunately for the women of South Korea the rape laws may soon change. This change could come from the confluence of three events. The first of which is the sordid tale of the talent agency chief and his proteges recounted above. The second involves the strong opprobrium the Korean police are under for their actions during a recent rape and murder in Suwon. In that case the lackadaisical response of the police to the victim’s call for help during a rape eventually resulted in more than 13 hours passing before her body was found hacked into over 300 pieces and stuffed into 14 trash bags. Perhaps if rapes were dealt with, in practice, as serious crimes the actions of the police may have been different. Perhaps the police would have made a stronger effort to locate the victim instead of surmising to each other that it was merely a domestic dispute.

The third event in this confluence is the recent National Assembly elections in which women made substantial gains in representation and power. In 2012 women have risen to the highest rungs of power in South Korea. The resurgent Saenuri party is headed by a woman who is arguably the most powerful person in South Korea. In the election more women were elected to the National Assembly than ever before. Many were elected by a movement encouraging women to vote for women representatives who vowed to change the antiquated sex crime laws of South Korea. So now is the time for the leader of the majority party and the elected women who made that vow to work towards enacting new legislation.

As a blueprint for this change, the recent redefinition of rape by the American FBI would be a worthy goal. This definition of rape includes any nonconsensual penetration, no matter how slight, of the female sex organ or the anus of either sex with any body part or object. The definition also includes nonconsensual oral penetration by a sex organ. Further, and most important for the South Korean context, consent cannot be given if the victim is intoxicated. And intoxication does not require an alcohol induced coma but includes an amount of drink equivalent to drunk driving. Further if the alcohol is provided by the perpetrator than any amount of alcohol consumption negates the victim’s consent. Finally physical resistance is not required to show a lack of consent.

In addition to redefining rape the police and the prosecutors need sensitivity training for handling victims of rape. While rape centers designed to deal with victims of sex crimes are a recent positive step, the police and prosecutors continue to interview these victims in open workrooms where private details are discussed in the presence of uninvolved police or prosecutorial staff. Even victims or suspects in unrelated crimes can be present in the same office as the rape victim. Private interview rooms with specially trained staff are a necessity.

These days in South Korea it often seems the only way to receive justice is to have a movie made about your life or to die in a shocking manner, either by suicide or murder. While we hope that no more of the women raped in the last year kill themselves, perhaps the minor celebrity status of the young women abused by the talent agency chief or the horrid fate of the woman ultimately victimized by the negligence of the Suwon police might so incense the population that the government will act. Until that day young women in South Korea will continue to spend the last few months of high school drinking large amounts of soju with their trusted friends in an effort to develop a high tolerance to alcohol before going off to college.

By Daniel Fiedler

Daniel Fiedler is a professor of law at Wonkwang University. He also holds an honorary position as an international legal advisor to the North Jeolla Provincial Government. ― Ed.

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