[News Terms] Wavering on the Introduction of the 'Non-Consent Sexual Intercourse Crime'

The term 'non-consensual intercourse' refers to punishing sexual intercourse carried out without the other party's consent as rape. This means that even if there was no violence or threat, if sexual intercourse occurred without the other party's consent, it is judged as rape.

However, as criticisms have arisen that the current rape law (Criminal Act Article 297), which requires physical force such as violence or threats to be established, is insufficient to fully protect sexual assault victims, heated debates over whether to introduce this law have emerged.

Article 297 of the Criminal Act stipulates violence or threats as conditions for establishing the crime of rape. Although recent court precedents have relaxed the standards for violence and threats as elements of rape, the determination of the crime is still based on the 'narrowest interpretation theory,' which limits it to cases where resistance is impossible or there is clear violence or threats to a significant degree.

Minister of Gender Equality and Family Kim Hyun-sook. / Photo by Kim Hyun-min kimhyun81@

For this reason, those in favor of introducing the non-consensual intercourse law argue that even if there was no actual violence or threats, sexual violations often occur 'without consent,' and that there is a legislative gap where victims have no means of redress.

Sexual violence without violence or threats occurs in contexts where the victim cannot refuse sexual relations with the other party, is in a defenseless state, depends on the perpetrator for financial reasons, or when the perpetrator holds a position of power, such as in relationships between religious leaders and followers. Although there is a provision for intercourse by coercion or intimidation in the course of duty, it is difficult to prove 'coercion or intimidation in the course of duty,' and victims of sexual violence occurring outside of work-related relationships have no means of relief, it is also argued.

The international community recommended defining sexual acts without consent as sexual violence through the Council of the European Union's 2011 'Convention on preventing and combating violence against women and domestic violence (Istanbul Convention),' and in 2010, the United Nations Division for the Advancement of Women (DAW) recommended in a handbook on legislation against violence toward women that "clear and voluntary consent should be the standard for judging rape, or if coercive situations exist, it should be considered rape, with broad legislative interpretation." Furthermore, in 2017, the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) explicitly stated that "sexual crimes should be defined based on the absence of free consent."

Minister of Justice Han Dong-hoon.
[Photo by Yonhap News]

Countries such as the United Kingdom, Germany, Austria, Sweden, Spain, as well as Canada, Australia, and some states in the United States have introduced and implemented this law. In South Korea, the debate over its introduction became a major issue through the 2018 'Me Too' movement.

Opponents of introducing the non-consensual intercourse law argue that punishment could be decided solely based on the other party's claim, leading to potential abuse, and that even if the other party consented at the time of sexual intercourse but later changed their mind, it would be difficult for investigative agencies to prove this, possibly resulting in unjust victims. On the 8th, during a National Assembly interpellation, Minister of Justice Han Dong-hoon expressed caution, stating, "If the person suspected of the crime cannot prove in court that there was consent from the other party, they could be unjustly punished," and added, "It would be extremely difficult to understand and prove the other party's inner thoughts."

Although the Ministry of Gender Equality and Family announced on the 26th of last month in its 3rd Basic Plan for Gender Equality Policy that it would consider introducing the non-consensual intercourse law, the Ministry of Justice rebutted, saying it had "expressed cautious review opinions opposing it." In response, the Ministry of Gender Equality and Family reversed its stance, stating that there is "no plan for legal amendment," which led to criticism that it is being inconsistent.

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