Anti-rape campaign #ThatsRape ④
By Ye-ji
Published March 8, 2016
Translated by Marilyn Hook
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Editor’s note: The Korea Sexual Violence
Relief Center is leading a campaign against sexual assault committed with the
help of alcohol or drugs, called #ThatsRape. This 5-part series of articles
explores the discussions held by the campaign’s planning committee, as well as
their questions and recommendations for change.
User reviews of “seduction
drinks” and aphrodisiacs
In one episode of tvN’s popular drama Cheese in the Trap, there is a
university student who is “famous” for giving younger female students alcohol
until they black out and then taking them to a motel. Though several women have
been the victim of this, he still enjoys a trouble-free student life.
The drama’s female lead also finds
herself very drunk after drinking the alcohol that he provides. Just when he is
helping her out the door, the story turns trite by having the cool male lead
appear and help her evade the danger. The male student, angry at this
obstruction(?), raises his voice and asks, “Why are you sending away a girl who’s
been seduced?” The male lead replies, “If you want to find a job and not end up
a bum, you’d better watch yourself.”
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A scene from episode 3 of tvN’s Cheese in the Trap
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If the student had taken a woman too drunk to consent to a motel and had sex with her, it would have undeniably been rape. But he considered it mere “seduction” and is infuriated that the male lead got in the way. And the male lead doesn’t point out that this is criminal behavior, but merely quietly threatens him by saying he needs to worry about the future that his debauched ways will bring. And what about the female lead? Appearing naïve and innocent, she is put in a taxi hailed by the male lead, without knowing anything, without saying anything.
Reality is not much different. One thing
that I’ve felt as one of the organizers of #ThatsRape, a campaign against sexual
violence committed with the help of alcohol and drugs, is related to common
beliefs about sexual relations that happen after alcohol or drugs have been
ingested.
Sex that happens without your partner’s
consent, that uses alcohol or drugs, is clearly rape. And yet, alcohol is
treated as merely one way of seducing someone into dating or sex, or as a
lubricant that makes a relationship smoother.
Of course, alcohol can make a
relationship closer, and pleasurable sex can accompany it. The problem is not
drinking alcohol or having sex in itself. It’s the context: the who, how, and
why. Having sex after you’ve given an unsuspecting partner drugs or strong
alcohol - the victim’s experience of this act is being ignored and the
perpetrator’s view that “alcohol is a useful means of seduction” is gaining
dominance.
That stories about taking a woman to a
hotel with the help of “seduction drinks,” as well as reviews of purchased aphrodisiacs
that are illegal because of worries that they cause sexual crimes, are passed
around without shame show the terrible situation in which rape is misnamed “seduction.”
Not forcefully
resisting equals consent?
If there is a different between this
drama and reality, it’s that [in real life] the victim has a chance of taking the
perpetrator to court. But reality becomes even darker at that point. In court,
the prosecuting side and the defending side wage a fierce battle over the
truth.
Here, the law is not the same as the
truth. It is a tool for seeking or approaching the truth. It cannot become the
truth. We expect the law, which appears absolute, to be just and impartial, but
of course it is a cultural and historical product of the society of the people
who make and enforce it. Verdicts can never be free from social discourse and
values.
If you look at the “Act on the Punishment of Sexual Crimes and Protection of Victims
Thereof” and interpretations of it, the blind spots of law as a product of
society become vividly clear.
Article 297 of the Criminal Act states
that those convicted of rape “through violence or intimidation” are to be
sentenced to a minimum of three years in prison. However, Korea’s Supreme Court
has taken the position that the degree of violence or intimidation is “the
degree to which one’s partner’s resistance is impossible or noticeably
difficult.” Because of this, the focus of sexual assault cases becomes whether
or not the victim was able to resist. That is, the complainant has to prove how
difficult (impossible) it was for her to resist what was happening, or how
strenuously she did resist, in order to be recognized as a victim.
Sexual assault that takes place when the
victim is unable to resist because of alcohol or drugs is punishable under
Article 299. Rape or molestation when the victim is unconscious or unable to
resist is classified as quasi-rape or a quasi-indecent act by compulsion. But
the standards for unconsciousness or inability to resist are not clear.
Accordingly, it is easy for mistakes based on the court’s interpretations and
arbitrary decisions to occur. Just as a rape verdict is based on the
complainant’s ability to prove how hard she resisted, quasi-rape requires her
to prove her inability to resist, and similar incidents end up with completely
different results based on the judge’s interpretation. This shows that the
relevant article is failing to act as a basis for clear-cut judgments.
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| Translated graphic from a 2011 Dong-a Ilbo article |
The above graphic was used in the Dong-a Ilbo article “Court Rules
‘Intellectually Disabled Who Don’t Refuse Sexual Advances Still Considered
Unable to Consent’”, published on Nov. 6, 2011. It compares court decisions on
the sexual assault of a 13-year-old hearing-impaired girl at Gwangju Inhwa School,
known as ‘The Crucible case’[1], and
the sexual assault of a 15-year-old girl with an intellectual disability that
the perpetrator met through a chatroom. These two incidents clearly show how
arbitrary courts’ interpretations of the ‘inability to resist’ are.
In a courtroom
in which all sorts of circumstances and evidence are flying about, the
complainant and defendant end up battling over whether the sexual act was based
on ‘agreement’. However, the two Criminal Code articles mentioned above force the
decision about ‘agreement’ to be based on proof of how desperately the victim
resisted or how weak she was. It’s a system in which rape isn’t defined on the
basis of mutual consent, but decided by the manner (through the perpetrator’s
violence or threats, or the victim’s unconsciousness or inability to resist) in
which the sex act takes place.
These laws make cognitive dissonance
unavoidable. What’s more, ancillary elements unconnected to the incident
itself, such as the victim’s everyday conduct, sexual preferences, and even her
gait when she is drunk, become the basis for a verdict. In a situation in which
sex is determined to have been consensual because the complainant didn’t fully
resist, the meaning of ‘consent’ is being understood in a distorted way in our
society.
All sex without
consent is rape
In the USA, until 1970, unwanted sex was
only recognized as rape when the victim put up ‘utmost resistance’ by
physically fighting the perpetrator. But with the rise of the rape reform
movement most states scrapped this requirement, beginning with Michigan in
1974. (Reference: “Not fighting desperately means ‘yes’?”, Chosun Ilbo, Jan. 8, 2011)
Also, a 1992 decision handed down by the
Supreme Court of New Jersey took the position that sex without consent is
sexual violence, saying that sexual penetration that takes place without the
victim’s active, freely-given permission constitutes sexual assault.
(Reference: “Stereotypes and fact about sexual assault”, Dong-a Ilbo, Nov. 11, 2014)
Similarly, Article 265 of Canada’s
Criminal Code stipulates that sexual acts that occur without one’s partner’s
consent or through the use of direct or indirect force are crimes. Of course,
this too leaves room for debate over the interpretation of ‘consent’. The article
goes on to describe situations in which consent is impossible: when one side
feels threatened or afraid, or can’t easily resist the exercise of authority.
When consent becomes the establishing
factor for the crime of rape, the victim’s ‘inability to resist’” cannot be the
standard by which sex that takes place under the influence of alcohol or drugs
is judged to be rape. All evidence and circumstances are instead restructured
and interpreted on the basis of the question of whether, in a situation in
which the victim could consent, clear and mutual consent did in fact exist.
The difference in the criminal codes of
South Korea and North American countries boils down to different answers to the
question of what rape is. If in the latter, rape is ‘all sex without consent’,
in our society, it’s ‘sex with violence, threat, inability to resist, or
unconsciousness’. The countless types of pain that are left out of this
definition but exist in real life are outside of the reach of the law, becoming
the burden of individuals.
But simply adding behaviors that
constitute rape to the law doesn’t guarantee that the problem will get better,
because our lives are much more complicated than a few lines of legal code. I
mean that the few acts that the law covers being considered rape cannot lessen
the unique pain of each person in our society. In order to bring victims’
suffering into the reach of the law, we don’t need to list the prerequisites
for rape, we need to give shape to what rape isn’t: sex based on clear consent.
In other
words, if we clearly answer the question of what isn’t rape with ‘sex that I
consent to’, all other sexual acts are rape. What must be changed is the very
definition of rape that forms the basis for our scream of #That’sRape.
*Original article: http://ildaro.com/sub_read.html?uid=7396
[1] After a 2009
novel and 2011 film (also known as Silenced)
that depicted it and related incidents.
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