Supreme Court Rules "Victims of Domestic Violence Do Not Need to Consent to Separation Measures"... First Verdict Issued

Supreme Court in Seocho-dong, Seoul.

[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] The Supreme Court has issued its first ruling stating that police officers responding to domestic violence crime reports do not need the victim's consent to take emergency measures separating the perpetrator and the victim.

The Supreme Court's Second Division (Presiding Justice Min Yoo-sook) confirmed on the 5th the original sentence of 8 months imprisonment with a 2-year probation for A (34), who was indicted on charges of obstruction of official duties and damage to public property. The probation, 80 hours of community service, and 40 hours of violence treatment lectures imposed on A were also upheld.

The court stated, "Considering the legislative purpose of the Domestic Violence Punishment Act, the intent behind emergency measures, and the special nature of domestic violence crimes, the separation of the domestic violence perpetrator and victim as stipulated in Article 5, Clause 1 of the Act does not require the victim's consent. Therefore, even if the victim expresses a desire not to be separated or does not consent, it does not hinder the police from taking separation measures based on the situation at the scene."

It added, "Since the police's separation measure is lawful, the original court's judgment recognizing guilt for obstruction of official duties is appropriate. There is no error in the original court's judgment that violates the rules of logic and experience, exceeds the limits of free evaluation of evidence, or misinterprets the legal principles regarding the establishment of obstruction of official duties," explaining the reason for dismissing the appeal.

A was prosecuted for assaulting police officers who responded to a report from his girlfriend B's mother on February 7, 2020, around 7:30 a.m., and for causing damage to a police computer keyboard (worth about 25,000 KRW) while causing a disturbance after being taken to the police station.

At the time, police officers who responded to a report from B's mother stating, "My daughter said her cohabiting boyfriend is trying to kill her," confirmed signs of assault on B's face and requested A to stay away from B. However, A resisted, shouting, "My wife is talking to me, damn it." When the police tried to move B outside the house, A pushed a police officer with both hands, causing the officer to fall.

After being taken to Seocho 2 Police Substation, A became angry upon hearing from the police that his assault on the officers at his home could be investigated as obstruction of official duties and shouted, "If it's obstruction of official duties anyway, I'll kill that woman and it will still be obstruction of official duties," causing a disturbance. During this, he jumped over a desk and stepped on one keyboard, breaking it.

During the trial, A argued that under the Domestic Violence Punishment Act, the victim's consent is required for emergency measures, and since the police tried to separate B from him without B's consent, his resistance was against unlawful protective measures. He also claimed that the police's arrest of him as a suspect on the spot was unlawful as there was no risk of flight or evidence destruction.

However, both the first and second trial courts judged that the police's separation measure was lawful. They also rejected the claim of no risk of flight or evidence destruction based on ▲ CCTV footage showing A attempting to leave the police station, ▲ bodycam footage of the responding police showing A's aggressive language and behavior toward officers, and ▲ A's prior record of assault or property damage.

The Supreme Court also found no problem with the lower courts' judgments.

Article 5 of the Domestic Violence Punishment Act lists emergency measures that police responding to domestic violence reports can take, including ▲ restraining violent acts and separating the perpetrator and victim (Clause 1), ▲ arresting a suspect on the spot and conducting criminal investigations (Clause 1-2), ▲ escorting the victim to a domestic violence counseling center or shelter (only if the victim consents; Clause 2), ▲ escorting victims needing urgent medical treatment to medical institutions (Clause 3), ▲ notifying the victim of the right to request temporary measures in case of repeated violence (Clause 4), and ▲ informing the victim of the right to request protection orders or personal safety measures (Clause 5).

Among these, Clause 2, "escorting the victim to a domestic violence counseling center or shelter," explicitly states that it applies only if the victim consents. However, the other emergency measures, including Clause 1's "restraining violent acts and separating the perpetrator and victim," do not have such a restriction.

This Supreme Court ruling is the first precedent clearly stating that, except for Clause 2, the other emergency measures under the Domestic Violence Punishment Act do not require the victim's consent.

Meanwhile, Article 2 (Definitions) of the Domestic Violence Punishment Act defines domestic violence as "acts causing physical, mental, or property damage among family members," and includes persons in de facto marital relationships within the concept of family members.

The Supreme Court judged that even though A and B were not legally married, the police's determination that they were family members in a de facto marital relationship was appropriate, based on B's mother's report that "she received a call from her daughter saying her cohabiting boyfriend was trying to kill her," and the fact that A referred to B as "my wife" when police arrived at the scene.

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