“The Law Stands with Victims” Series: The Korean Supreme Court draws a new line about sex offenders’ false accusation suits against victims
By Lee Eunnui
Published: December 16,
2022
Translated by Jun Jihai
※Editor’s
Note: This series documents attorney Lee Eunui’s legal battles on sexual
violence and #MeToo cases, which have brought controversy in Korean society for
the last several years.
A fake “welcome party”
“Defendant
A” was a sub-contracted worker sent to KBS (the national broadcaster of South
Korea). Her job was to expense the payments made by news camera people. The
1997 Asian financial crisis created in Korea a new status that became more
significant than position or the year of joining the company: regular workers.
The new hierarchy includes the dominant regular workers and irregular workers. Ms.
A was an irregular worker, a newcomer, and a woman.
On her first day of
work, Ms. A was advised to “get along well with news camera people” from a
manager. That advice was almost necessary as they had to cooperate for each
other’s sake, but it is odd if you think about it further. Who needs to curry favor
more? The ones who need to get reimbursement with their receipts, or the ones
who manage the reimbursement process? Of course, business-wise, the former
should wish to build amicable relations as they are required to get
work-related support from the latter. However, the hierarchy between regular
and irregular workers made the situation the opposite. So Ms. A kept the advice
in mind.
As Ms. A was walking
somewhere with her predecessor in the broadcasting station building, she met Mr.
B, a news camera person. Mr. B suggested throwing a party to say farewell to her
predecessor and to welcome Ms. A. That weekend,
Mr. B sent Ms. A messages through a social networking service, asking to spend
time together. His demands continued on Monday at work. Mr. B was a married man
in his forties. Ms. A, without a doubt, thought of Mr. B’s “welcome party” as
an event that would be attended by other news camera people.
That day, Ms. A had plans
with her boyfriend, but she felt it was wrong to keep saying no to the offers of
a welcome party from the camera people, whom she had to get along well with,
especially as a fresh newcomer. Eventually, she excused herself from her
boyfriend and was led by Mr. B to Hapjeong-dong. It was after arriving at the
wine bar Mr. B took her to that she realized there were no other people.
Despite her confusion and reluctance, she told herself she must not misconstrue
his kindness.
The drinking dragged on
longer than she expected. Mr. B had been already been drinking before meeting
up with Ms. A, but he ordered a bottle of wine, finished it off, mostly by
himself, and ordered another bottle. Ms. A hardly touched the second bottle and
then left to try to end the night. However, Mr. B was pretty drunk. He was stumbling, and Ms. A held his arms to
prevent him from falling down. To her surprise, he did not go straight for a
cab. Instead, he grabbed her wrist and started to walk. At a convenience store,
he bought ice cream bars and asked her to eat one with him before going home.
Then, allegedly, he made a sudden move, trying to kiss her.
Mortified, Ms. A
scuttled to a cab, but Mr. B followed her and got into the same car. She then immediately
jumped out of the car. In the end, she managed to leave alone in a cab and got a
rather ambiguous text message from Mr. B, saying he was worried. Her boyfriend,
who had been waiting for her nearby, heard what happened from Ms. A and called
Mr. B to lash out at him. She also reported Mr. B to her supervisor right away.
Mr. B apologized to her at work the next day, but his apology was also
ambiguous. Ms. A reported him for indecent acts by compulsion, making a
statement to the police that he had suddenly committed a forcible indecent acta
while they were having ice cream bars after leaving the convenience store.
Being introduced to Ms. A as the accused, not the victim
Everything above was confirmed by positive evidence, except the allegation about the forcible indecent act that happened right after Ms. A and Mr. B left the store with ice cream bars. Security cameras had tracked everywhere they went, but unfortunately, there were no cameras at the place where the crime took place.
 |
| At the “Review Notes for Wrong Answers about Enthusiastic Consent” booth at the event organized by Korea Sexual Violence Relief Center to commemorate International Women’s Day in 2019 ©Ilda |
In August 2017, I first
met Ms. A, who was sadly not “the victim” at that time. I was briefly visiting a
women’s organization to provide legal advice when I happened to hear about the
situation of Ms. A, “the accused.” Not long after, Ms. A contacted me for legal
advice.
The filing of a complaint
against the victim of sexual violence for a false accusation (filing a false
report or lawsuit) turns the victim into the accused. If the prosecutor presses
charges against the accused, she then becomes a defendant. The same person can
be the victim, the accused, and the defendant. If the court declared the victim
guilty of making a false accusation, far from seeing the perpetrator punished,
the victim would be left with unhealed wounds from sexual violence and receive unfair
criminal punishment.
So I am always concerned
about protecting my clients who are victims from becoming involved in any
lawsuit related to a false accusation. When a report of a false accusation is
actually prosecuted, either it means that it will be a difficult case to defend
or it is taken to mean that the person really did make a false accusation. Most
of the time, an attorney and her client are utter strangers to each other.
Because an attorney is someone who stands with a client based on a belief about
harm done to the client or a sense of unfairness, the pressure might be heavier
and the nervousness more intense for the attorney if her client is the
defendant rather than the victim.
Ms. A, “the defendant” on trial for a false accusation
Face-to-face, I listened
to Ms. A, studying the records, which gave me a clear view of her legal fight
against a false accusation charge, or more precisely, against sexual violence.
That incident was merely a few years ago, but the threshold for recognition as
the victim of indecent acts by compulsion or indecent acts by abuse of
occupational authority was much higher back then. However, despite the high,
strict standard, it did not make sense that Ms. A would suddenly throw herself
into a romantic relationship with Mr. B, whom she had just met, who was much
older than her, who was a married man, and who persistently asked her to drink
together with the excuse of a “welcoming party.” Additionally, it did not add up
that she would exaggerate what would be the mere harassment of him trying to
kiss her into sexual violence to report it to her supervisor and file a
criminal complaint.
The truth was, Mr. B
took advantage of his position and experience when coming on to Ms. A, a new
sub-contracted worker. It is too obvious that he knew all along that she could
not adamantly turn down his repeated demands or leave him behind while he was
drunk. Her hasty leaving of the cab to take a different one or the text
messages he sent make it safe to assume that there must have been an upsetting
incident preceding those events. Her allegation was legitimate, which made me
wonder why the investigative agency did not recognize the indecent act by
compulsion and even why the prosecutor decided to press charges against her for
a false accusation. Those choices were beyond my understanding.
Ms. A had already submitted
a written statement to have a citizen participatory trial,
and passed the preparatory date—the trial was in a few days. It was
inappropriate timing for me to step in to take the case. The best possible choice
was to let her existing attorneys-at-law defend her case as they had been
preparing for it. I sent her a text message the day before the trial for
encouragement and the evening of the trial date to hear any news about how the
trial had gone. Almost at midnight, she called me and said the court had not
yet rendered the ruling. Then she recited the judges’ questions she was asked
during the trial. Listening to her, I became heavy-hearted. A couple of hours
later, I heard that the jury had found her guilty in a nearly-unanimous
decision.
Becoming an attorney for Ms. A, who had been declared “guilty”
Not many days after the
conviction, Ms. A came to my law office, and I decided to become her
attorney-at-law at the appellate court.
South Korea has a
three-tiered trial system, and it is rare that the judgment of the court of original
instance gets overturned at the court of appeal. It is even rarer for the
ruling from the appellate court to be reversed at the Supreme Court. What is more, precedent set by the Supreme Court holds
that, unless there are were special circumstances, the lower courts should respect
the decision resulting from a citizen participatory trial. And that was exactly
the situation Ms. A was in while appealing her case.
It was upsetting for me
to explain to Ms. A where we stood, but the most upsetting thing was our
starting point: the fact that the court had already declared her guilty. Ms. A
had filed a lawsuit against Mr. B for indecent acts by compulsion. However, the
reason the investigative agency had not supported her case was not because it
had confirmed the falsity of her allegation of harm or there were circumstances
to make it reasonable to believe her accusation was false. It was because the
agency could not readily conclude that her allegation was true, and even if it
could, the agency said, it would have been difficult to decide whether Mr. B’s
actions satisfied the requirements for indecent acts by compulsion as
prescribed in the Criminal Act and Criminal Procedure Act. In short, perhaps
what Ms. A said actually happened, and Mr. B’s actions could be indecent acts
by compulsion, but the agency was not confident enough to recognize her
allegation to be true.
In other words, the lack
of confidence the agency showed served as a legal basis for Mr. B to file a
complaint against Ms. A for a false accusation and get her convicted. Telling
Ms. A that the ground we were standing on was shaky due to these complex
situations was, in truth, telling a person who felt wronged that that was what the
law was like.
The appeal was much more challenging than we thought. The judges did not even try to hide their confirmation bias. Besides their rejection of our request for Mr. B to take the stand for questioning, which he had done at the first trial, the appellate court did not even allow us to summon other witnesses, such as another employee who was in a similar position to Ms. A and got sexually assaulted by Mr. B in the past, or the supervisor who received Ms. A’s report of sexual violence. The rejections extended to our request to extend the trial by one more day in order to continue the examination of Ms. A. The presiding judge did not say it out loud, but anyone could see in his eyes that he thought we had nothing worth seeing.
The criminal complaint
and other documents that Mr. B submitted were full of personal information
about Ms. A, from her family to other past legal issues she was involved in,
which made me wonder how on earth he collected all of them. Some of them
included matters that even Ms. A could not confirm the truth of. But their common
purpose was to diminish her. The attempt to create stigma was woven into the
factual backgrounds—the drinking with Mr. B that she could not leave and the
street heading home on which she walked following B with no choice to do
anything else—and they fueled the misbelief of the judges.
Still and all, I could
not give up on the trial. I did an examination of the defendant for over half an hour
without a prepared list of questions. After my examination, the prosecutor asked Ms. A if she had stated what she
just said during the examinations in the investigative process or at the first
trial. Ms. A said she had replied to questions from investigators and the
attorneys, and even though the basic content was similar after all, there were
differences in the ordering or details of those statements, and she had not answered
questions they had not asked. The prosecutor concluded the cross-examination
with the remark, “It is a shame that you did not make every statement at that
time.” The prosecutor’s job is supposed to be driving the defendant into a
corner to reveal their guilt, so I was baffled because what the prosecutor said
implied an understanding of Ms. A’s side of the story. But it did not mean the
prosecutor dropped the case.
The judges had no
questions for the defendant. After three weeks of deliberations, Ms. A was
again declared guilty. The cold at the end of January 2018 was freezing, for
our hearts, too.
The Supreme Court’s review for a standard for false accusations
concerning sexual crimes
In 2018, with the #MeToo
movement at its peak, a newsweekly journalist I had met before reached out to
me for an interview recommendation. I thought of Ms. A. She once told me if
anyone were willing to write about her story, she would expose her face and
name to express her resentment. Although I was uncertain what the journalist
would say about covering the story despite Ms. A’s conviction for making a false
accusation, I cautiously asked if that was possible. That was how I arranged a
meeting between Ms. A and the journalist.
Several days after the interview’s
publication, I received another call from the journalist. According to the
call, some attorneys wished to join me in representing Ms. A at the final
appeal to the Supreme Court, and the journalist asked for my opinions. I asked if
any of the attorneys were male, in their 50s-60s, and former state officials. I
needed someone like that, with a different background, career, and perspective
from me but who had reached the same conclusion and could win over the judges.
Luckily, there was one man. So I went to meet this attorney who agreed to fight
with me at the final appeal.
I had found a reliable
ally, but what was ahead of us was a long haul. Following the submission of a
written statement of grounds for the final appeal, we both added supplements to
it. The days we endured waiting to find out whether the Supreme Court would
hear our appeal or dismiss it—I could feel my heart pound every time I opened the
site showing the status of my case. After passing the period in which the
Supreme Court could refuse to hear the appeal if it had excluded any required
grounds prescribed in law, I had no time to spare physically and
psychologically. I submitted written documents every one or two months, which seemed
to unsettle Mr. B. The written documents from his side carried condemnations
and aggressive remarks that I was making useless statements in addition to
arguments that the victim falsely accused him.
That kind of attack was
too familiar, and one day I complained about it to the attorney who had joined
the team to fight at the final appeal. He grinned and said, “If you want to do
great things, you need to be strong.” That inspired me to think of a more
creative way to fight the battle: I invited instructors who do sexual
harassment and sexual violence prevention trainings and activists from women’s
organizations to hold a press conference in front of the Supreme Court and submitted
a request to be allowed to view records such as statements that Mr. B had made to the police
regarding
Ms. A’s complaint of indecent acts by compulsion.
The end of 2018 came and
went, but the Supreme Court remained silent. In 2019, whenever I went to give a
lecture at a place working on gender issues, I introduced Ms. A’s case and
beseeched people to turn in a petition on her behalf. I longed to put the brakes
on the courts that, blinded by an old bias that "She drank with him? Well,
no need to hear further," were making victims into criminals just for telling
about their experiences, ignoring circumstances making it reasonable enough to
assume the victim had been sexually assaulted and the evidence for it.
The final appeal began
in winter with shivering cold and finally ended, in the hot summer of the next
year. On the day of the Supreme Court decision, I was too nervous to go there
in person. An employee and an intern of my law office went on my behalf, with
the defendant, Ms. A. The Supreme Court admitted the circumstances of that day
(the day of the assault), saying that it was difficult to conclude that they did
not serve as support for the defendant Ms. A’s allegation of harm. And it also clarified
its standard for handling false accusation cases related to sexual crimes,
declaring, “Do not conclude carelessly that it is a false accusation if there
are findings of fact that the victim could consider as harm, even if there is some
extent of exaggeration”! Ms. A finally got clear of the false charge that had
been causing trouble for a long time, and thankfully many media outlets took
interest in and reported on the Supreme Court’s decision to vacate the lower
court’s ruling and remand the case to the court of the original instance.
I think that what is
behind our feeling a bit safer than we did yesterday are the priceless pillars
of propositions that prop up the high roof of the law—and they are the result
of someone going through pain for a long time, like Ms. A. At the same time,
however, we should etch it in our minds that only some people become clear of a
false charge dramatically and that sapilguijeong (a Korean idiom meaning
“every road leads to justice”) is not true for everyone. The harm we did not
discover or recognize until yesterday and people’s tears all come together to
make the courts push the line, inch by inch, to set a new standard closer to
justice.
*Related materials: Supreme
Court decision 2018Do2614
Lee Eunui became a lawyer after graduating from law school in 2014. She opened “Lee Eunui Law Firm” right in front of the Seoul High Prosecutors' Office and has been handling cases of sexual violence and sex discrimination. She is not dreaming of extraordinary justice or immersive progress in our society, but a world with common sense, a world where reasonable thoughts and discourse are valid. She has been on the frontline of a battleground for nine years as a lawyer and as a writer who has published books such as Leaving Samsung, It’s Okay to Be Sensitive, Ready to Feel Uncomfortable, and Gentle Violence.
*Original article: https://www.ildaro.com/9511
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