Constitutional Court Dismisses Unconstitutionality Petition on Quasi-Rape Law for "Infringing Freedom to Have Sex with an Intoxicated Partner"... "'Incapable of Resistance' Concept is Clear"

Constitutional Court Grand Bench.

[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] The Constitutional Court has ruled that the 'incapacity to resist' clause in Article 299 of the Criminal Act, which punishes those who commit quasi-rape or quasi-forcible molestation by taking advantage of a person's mental incapacity or incapacity to resist, does not violate the Constitution.

The petitioner argued that the concept of 'incapacity to resist' is vague and violates the principle of legality, and infringes on the 'freedom to engage in sexual relations with a partner who has consumed alcohol,' but this was not accepted.

On the 9th, the Constitutional Court announced that it unanimously upheld the constitutionality in the constitutional complaint case filed by Mr. A, who was sentenced to four years in prison on charges of quasi-rape and quasi-forcible molestation, claiming that Article 299 of the Criminal Act, which stipulates quasi-rape and quasi-forcible molestation, violates the principle of clarity under the principle of legality.

Article 299 of the Criminal Act (quasi-rape, quasi-forcible molestation) punishes the act of raping or molesting a victim who is in a state of 'mental incapacity' such as being asleep or unconscious, or a victim who is physically unable to resist due to being restrained or psychologically unable to resist like a patient receiving medical treatment, i.e., in a state of 'incapacity to resist,' in the same way as rape or molestation committed through violence or threats or similar acts of rape.

Mr. A was tried and sentenced to four years in prison on January 13, 2017, for two counts of molesting a victim who was intoxicated and in a state of incapacity to resist on July 4, 2015, and raping the victim after she fell asleep (quasi-forcible molestation and quasi-rape).

Mr. A appealed, but the appeal was dismissed. He then filed a final appeal to the Supreme Court. During the appellate trial, he requested a constitutional review of Article 299 of the Criminal Act, the legal basis for punishment, but when this was dismissed, he directly filed a constitutional complaint with the Constitutional Court.

If a court accepts a request for a constitutional review and refers the case to the Constitutional Court, the trial is suspended until the Constitutional Court's decision is made. However, if the court dismisses the request and the party files a constitutional complaint directly, the trial continues. During the Constitutional Court's review, the Supreme Court dismissed the final appeal, confirming the guilty verdict.

In his constitutional complaint, Mr. A pointed out, "The element of 'incapacity to resist' in Article 299 of the Criminal Act is not clearly defined in meaning or criteria, allowing arbitrary interpretation and application by investigative agencies or courts."

He also argued, "As a result, the Supreme Court interprets the state of incapacity to resist to include not only cases where resistance is 'absolutely impossible' but also cases where it is 'significantly difficult.' Therefore, Article 299 of the Criminal Act violates the principle of clarity under the principle of legality."

Although Mr. A challenged the entire Article 299 of the Criminal Act, the Constitutional Court limited the scope of review to the 'incapacity to resist' part of Article 299, judging that this was the essence of Mr. A's claim.

First, the Constitutional Court cited Supreme Court precedents, stating, "Article 299 of the Criminal Act punishes the act of raping or molesting by taking advantage of an existing state of mental incapacity or incapacity to resist in the same way as rape or molestation committed through violence or threats. This is to protect the sexual self-determination rights of persons who cannot defend themselves against sexual violations due to mental or physical conditions."

Furthermore, the Constitutional Court stated, "Considering the dictionary meaning of 'incapacity to resist' as 'a state where one cannot resist or oppose' together with the purpose of Article 299 of the Criminal Act, the state of 'incapacity to resist' can be understood as a condition where the victim's judgment ability and ability to respond or control are so impaired that the perpetrator does not need to exert any physical force to commit sexual violation."

It added, "Since the state of 'incapacity to resist' should be interpreted in line with the wording of 'mental incapacity' in Article 299 of the Criminal Act, it refers to a state equivalent to mental incapacity where a person cannot make normal judgments about sexual acts due to mental or consciousness disorders."

The Constitutional Court pointed out, "The Supreme Court has consistently ruled that 'the state of incapacity to resist under Article 299 of the Criminal Act means cases where, aside from mental incapacity, it is absolutely impossible or significantly difficult to resist psychologically or physically, maintaining balance with Articles 297 (rape) and 298 (forcible molestation) of the Criminal Act,' providing guidelines for specific interpretation."

In conclusion, the Constitutional Court stated, "Considering all this, it is difficult to say that a person with sound common sense and ordinary legal sentiment would find it hard to predict what the 'incapacity to resist' state under Article 299 of the Criminal Act means, nor is it an unclear concept subject to arbitrary interpretation or application by law enforcement agencies. Therefore, the provision under review does not violate the principle of clarity under the principle of legality."

Meanwhile, the Constitutional Court also ruled that Mr. A's claim that Article 299 of the Criminal Act infringes on the 'freedom to engage in sexual relations with a partner who has consumed alcohol' is unfounded.

The Constitutional Court stated, "The petitioner argues that even in cases where sexual relations occur with mutual consent while intoxicated, the victim's 'incapacity to resist' is often recognized during investigation and trial, resulting in the establishment of quasi-rape charges, thus infringing on the freedom to engage in sexual relations with a partner who has consumed alcohol under Article 299 of the Criminal Act. However, as examined above, Article 299 of the Criminal Act aims to protect the right of persons who cannot defend themselves sexually due to mental or physical conditions to refuse unwanted sexual relations, and does not restrict sexual relations based on mutual consent. Therefore, the petitioner's claim is without merit."

This decision marks the first time the Constitutional Court has ruled on the constitutionality of the 'incapacity to resist' clause in Article 299 of the Criminal Act.

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