Constitutional Court: "Prosecutorial Discretion to Not Indict in Sexual Harassment Self-Defense Cases Is Wrong"
by Kim Daehyun
Published 09 Mar.2021 07:45(KST)
[Asia Economy Reporter Kim Daehyun] The Constitutional Court has ruled that the prosecution's decision to suspend indictment against a woman who injured a man attempting to sexually assault her should be revoked. The ruling emphasizes that in determining whether the sexual assault victim's infliction of injury on the assailant constitutes self-defense under criminal law, the circumstances and urgency at the time of the incident must be taken into account.
On the 9th, the Constitutional Court announced that it unanimously accepted the constitutional complaint filed by victim A, who requested the cancellation of the prosecution's suspension of indictment decision against her.
In October 2018, A was booked after injuring a man attempting to molest her in the kitchen of a goshiwon by swinging a ceramic bowl, causing a torn ear. According to investigation records, the man, who was alone with A, grabbed her wrist to prevent her from leaving and suddenly touched parts of her body in a sexually inappropriate manner.
At the time, the prosecution decided to suspend indictment against A, reasoning that she inflicted injury impulsively out of shock from the assault and that the injury was not severe. Suspension of indictment is a disposition where, even if some charges are recognized, the charges are not serious enough to bring the suspect to trial.
In August 2019, A filed a constitutional complaint claiming that the disposition violated her rights to equality and pursuit of happiness, requesting its cancellation.
The Constitutional Court, in a unanimous decision, accepted A's claim and ruled to cancel the prosecution's suspension of indictment. The court pointed out, "The assailant was a man nine years younger than A, and A's counterattack with the ceramic bowl she was already holding to escape the forcible sexual assault using physical strength may constitute justifiable self-defense."
It added, "The decision to suspend indictment without sufficient and appropriate investigation reflects a misunderstanding of the legal principles regarding injury under criminal law or justifications for illegality, or an arbitrary exercise of prosecutorial authority," and "As a result, A's rights to equality and pursuit of happiness are recognized as having been violated."
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