High School Girl's Hair and Back Secretly Urinated on by Theater Actor... Supreme Court Rules "Forced Indecency Even If Victim Unaware"

"If There Was Objective Sexual Misconduct, It Violates the Victim's Sexual Autonomy"
Reversing the Not Guilty Verdicts in the First and Second Trials

Supreme Court, Seocho-dong, Seoul.

[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] The Supreme Court has ruled that even if the victim of forced molestation did not realize at the time of the incident that they were being molested, if there was objectively a molestation act, the victim's sexual self-determination right should be considered violated.

The Supreme Court's 2nd Division (Presiding Justice Min Yoo-sook) announced on the 12th that it overturned the lower court's acquittal verdict in the appeal trial of theater actor A (33), who was charged with forced molestation, and remanded the case to the Daejeon District Court with a guilty verdict.

The court stated, "The lower court's judgment contains an error in misunderstanding the legal principles regarding 'molestation' under Article 298 of the Criminal Act, resulting in insufficient necessary trial procedures that affected the verdict, and the prosecutor's appeal argument pointing this out is valid."

On the evening of November 25, 2019, A, who was angry after a quarrel about acting with a fellow performer, stopped his car on a road near an apartment in Dongnam-gu, Cheonan City, because he needed to urinate while driving.

With the headlights and hazard lights on, A got out of the car looking for a place to urinate and spotted the victim, B (then 18 years old), waiting at a crosswalk signal. To vent his anger, he followed B while verbally abusing her.

When they arrived at the apartment playground, B sat on a bench, wearing earphones, continuing a phone call with a friend and smoking a cigarette. In a fit of anger, A urinated on B's hair, hoodie, and padded jumper from behind.

B, who had seen a shadow behind her, felt something touch her head and touched the crown area but thought nothing was wrong. B testified to the police that she likely did not smell the urine because she was wearing thick clothes and it was cold.

When B stood up from the bench to go home, she was startled as someone suddenly moved in front of her and realized it was A, whom she had seen earlier waiting at the crosswalk signal.

After arriving home, B finally noticed her clothes and hair were wet and smelled the odor, which was urine. She thought that A, who had been behind her at the playground, had urinated on her and reported it to the police. B testified to the police that she "felt annoyed, dirty, and disgusted."

Eventually, A was prosecuted for forced molestation but was acquitted in the first trial. The court reasoned that there was no infringement on B's sexual self-determination right.

At that time, the court cited a Supreme Court ruling stating, "'Molestation' under Article 298 of the Criminal Act is not only an act that causes sexual shame or disgust to the general public and violates sound sexual morals, but must also infringe on the victim's freedom of sexual self-determination." Since B did not realize A was urinating on her back, the court held that A's act did not violate B's sexual self-determination right.

The second trial also upheld the first trial's judgment.

The prosecution maintained the primary charge of forced molestation in the appeal trial and applied for a change of indictment to add the charge of 'assault' as a subsidiary charge, which the court approved.

However, since B expressed during the first trial that she did not want A to be punished, the court dismissed the assault charge. Assault is a 'non-prosecution offense upon victim's withdrawal of complaint,' meaning it cannot be prosecuted against the victim's will.

But the Supreme Court's judgment differed.

First, the court cited a Supreme Court ruling stating, "For an act to be considered molestation, it is sufficient that the act objectively causes sexual shame or disgust to the general public and violates sound sexual morals, and the perpetrator executes such an act against the victim. The victim does not necessarily have to actually feel sexual shame or disgust."

It continued, "The defendant secretly approached the victim, a woman he had never met before, exposed his genitals, and urinated on the victim's back. Evaluated in light of the above legal principles, this act objectively causes sexual shame or disgust to the general public, violates sound sexual morals, and may be considered a molestation act infringing on the victim's sexual self-determination right."

The court also added, "If the defendant's act objectively constitutes molestation, the victim's sexual self-determination right is considered violated, and it should not be concluded that it is not molestation simply because the victim did not recognize it at the time of the act."

Meanwhile, A was also charged and tried in a consolidated trial for assault after, on December 5, 2019, upon belatedly being informed that his theater troupe canceled rehearsals, he became angry thinking he was being ignored and approached C (then 16 years old) walking on a street in Cheonan City around 10 p.m., grabbed the bag C was carrying on her back strongly with his hand, and spat on the bag. However, since C withdrew her intention to punish, the first trial dismissed the indictment, and the prosecution did not appeal, making the dismissal final.

This content was produced with the assistance of AI translation services.