Panel Report Series Calling for Amendment in the Rape Law (Part 1)
By Catholic Center for Counseling
on Sexual Violence
Published: June 23, 2023
Translated by Jun Jihai
※Editor’s
Note: Front-line organizations provide advice and support on sexual violence
cases, and they have constantly called for amendment of the law and a change in
the public’s perspective so that sexual violence is judged on the basis of
“consent”
instead of “violence and intimidation.” For this reason, members of an alliance
of anti-sexual violence organizations are participating in this seven-part relay
series concerning the main issues and problems of the current law and the need
for this amendment based on their own experiences and voices.
“I was drinking with the
perpetrator, and at some point, I blacked out.”
“I had fewer drinks than
usual, but I couldn’t remember a thing, threw up a lot, which is unusual for me,
and kept feeling fuzzy, which makes me suspect that (the perpetrator) put drugs
in my drinks.”
In the process of receiving support and counseling, the victims of quasi-rape often speak with frustration that they cannot remember what happened at the moment of the incident and were not in a state to handle the situation appropriately.
 |
| Those who have been “quasi-raped” (raped while under the influence of alcohol or drugs) complain of an absence of memories about when the assault took place and their inability to respond to the situation. © pixabay |
When
it comes to determing what exactly happened to the victim, it can only be assumed that she
suffered from quasi-rape based on context such as what happened before and
after the incident, the testimony of witnesses, and evidence like call and text
history around the time of the incident. Through
recognizing the changes in their usual behavioral patterns, the victims became
aware that they suffered sexual violence when they were in a state in which expressing
consent or rejection was impossible.
The difference between rape and quasi-rape
Different laws are
applied to sexual cases depending on how was the victim's condition during the assault
and by whom they were assaulted. The standard for (regular) rape is the use of
“violence or intimidation.” On the other hand, the Quasi-rape Law states two
elements: 1) the victim was in a condition of unconsciousness or inability to
resist and 2) the perpetrator took advantage of the victim’s condition to have
sexual intercourse. Like the before-mentioned case, if a victim were deeply
asleep or intoxicated with alcohol or drugs at the moment of assault, the
victim’s case would be a quasi-rape case.
While furnishing
counseling or support for the victims of quasi-rape, we found that it is so
common that the perpetrators receive a non-prosecution disposition, or even if
they are prosecuted, the courts find they are not guilty. Why did the victims,
who suffered harm due to sexual violence when unconscious and unable to resist,
rarely see their cases make it to court? And when they do, why do perpetrators
get a verdict of not guilty? What is the reason for this?
One reason is that the
victim’s memory loss and allegation of harm are insufficient to prove that they
were unconscious and lacked the ability to resist. That is why it is essential
in judicial procedures to secure positive evidence related to the victim’s
condition and to decide how to interpret that evidence.
A difficult request: prove that you were unconscious and
unable to resist
The only tangible
evidence that can prove the victim’s state of unconsciousness and inability to
resist is CCTV footage. Securing footage, however, requires making a report. If
the victim hesitated and delayed reporting, obtaining the footage would be
almost impossible due to the expiration of the retention period. Even if the
victim secures the footage, the way of interpretating that footage drives
different legal conclusions.
Therefore, many
perpetrators assert, “I had no idea that the victim was so drunk” or, “I
thought the victim was conscious,” especially when the footage includes the
victims walking or standing without support from others.
The investigative agency
may also conclude that the victim was experiencing a mere blackout, saying, “The
victim was not in a state of unconsciousness at the moment of assault, but only
experienced subsequent memory loss,” or it could decide that “the perpetrator
could have seen it as normal sexual intercourse or misunderstood that the
victim gave consent,” and let the perpetrator slip away from punishment. Through precedents, the Supreme Court has distinguished a blackout
due to alcohol consumption from passing out. Passing out from something such as
drinking should be treated as a legal state of unconsciousness by the investigative
agency. However, in reality, one single reaction from the victim is enough for
the agency to see his or her state as a blackout even when it is otherwise
clear that the victim is suffering from serious impairments in making judgments
or decisions or is having difficulty in making appropriate responses.
Moreover, if footage
shows the intoxicated victims being carried on the perpetrator’s back or being
dragged, the perpetrators may argue, “I got consent before the victim became
drunk,” or “We had already been getting physical, so it was natural to move on
tosex.” The agency often draws a conclusion based on the perpetrator’s
assertions, stating, “We cannot rule out the possibility that the perpetrator
and the victim might have had consent to sexual intercourse.”
Prejudice and misconceptions about sexual violence found during
investigative and legal procedures
In 2020, a case study
was conducted on quasi-rape cases brought to member organizations of the Korean
Association of Sexual Violence Relief Centers from January to December in 2019.
In total, 67 counseling centers for sexual violence responded about the legal
outcomes of 760 victims who were incapacitated in ways such as alcohol intoxication.
Out of 760 victims of
quasi-rape cases, 511 (67%) filed complaints or reports, and 299 (30%)
succeeded in bringing the perpetrators to court. But a mere 112 (14%) saw their
perpetrators be declared guilty and receive punishment.
Among the 83 victims
whose cases were cut short by non-prosecution decisions, the reason in 24 cases
(29%) was that “it is difficult to see the victim's state as one of
unconsciousness or inability to resist,” while 11 (13%) mentioned that “the
victim seemed to have experienced a blackout.” Additionally, 20 (24%) were attributed
to the “low credibility of the victim’s statement,” and 11 (13%) indicated
"the victim’s responses not being like a real victim’s."
The reasons for
acquittals in the 51 cases that did go to trial are similar to those observed
in non-prosecution decisions. In 15 (29%) cases, the reason was “it is
difficult to see the victim’s state as one of unconsciousness or inability to
resist,” and for seven (14%) it was “the victim seemed to have experienced a
blackout.” Furthermore, 12 cases (24%) ended in not-guilty verdicts because “the
perpetrator’s intent cannot be proven beyond a reasonable doubt,” 10 (20%) because
of the “low credibility of the victim’s statement,” and 4(8%) because of “the
victim not behaving like a real victim.”
These results imply that
the court is mainly focusing on whether the victim was unconscious or unable to
resist and whether the perpetrator took advantage of that condition. It is evident
that a misconception about sexual violence is affecting the entire legal process.
Prove the perpetrator’s intent?
Quasi-rape is a criminal
act that involves a victim who is not capable of remembering or responding. So
what builds the structure of the legal case is often the perpetrator’s
recollection of what happened before, during, and after the incident. Most
perpetrators, however, deny that a sexual act happened at all, or admit it but
with claims such as “I didn’t notice the victim was drunk” or “I already got
consent from the victim,” to say it was not an act based on criminal
intentionality.
In order to determine if
the perpetrator intentionally committed sexual violence by exploiting the
victim’s intoxication, the investigative agency should be thorough with its
inquiry to verify with what kinds of words, actions, or approaches the
perpetrator sought consent from the victim and how the victim responded.
Instead, it accepts every word from perpetrators who tell lies and distort or
fabricate facts to deny their guilt, and these words become the reasons for a non-prosecution
decision. And judicial agencies are not much different. They often declare defendants
not guilty on the grounds that the records from the investigation agency alone do
not serve as evidence of guilt beyond a reasonable doubt.
In quasi-rape cases,
however, “intent” does not necessarily mean “knowingly,” as it can also mean
willful negligence. In other words, if the perpetrator had been aware that the
victim was intoxicated, he could have known, or at least suspected, the
inability of the victim to make clear-headed judgments. Say the perpetrator did
not stop his sexual acts or ask for further consent even after he noticed the
absence of or impairment in the victim’s ability to judge, control themselves,
and respond. That would lead to the conclusion that the perpetrator acted with
the intent to commit quasi-rape.
Still, it is dangerous
to jump to a conclusion. Determining if the perpetrator took advantage of the
victim’s unconsciousness or inability to resist requires a closer investigation
into what exactly happened before and after the incident, the relationship
between the victim and perpetrator, what states both of them were in, how reliable
their statements were, whether the perpetrator actively confirmed if the victim
was unconscious or unable to resist, whether the perpetrator sought the
victim’s active consent and if so, how, etc.
 |
| On August 12, 2020, at the National Assembly Communication Building, lawmaker Ryo Hojeon’s office and the Gender Equality Committee of the Justice Party held a press conference titled “Proposal of Criminal Act Amendment Focusing on Individual’s Consent: Call for Stricter Punishment for Sexual Crimes” ⓒ Social Solidarity Group for Amendment of the Rape Law. |
“I mean, they were at the club… it’s hardly a legal case,”
the police said
Despite the spreading
acknowledgment that sexual violence is the result of a social structure where
sexism and inequality are pervasive, victims are still not free from prejudice
or misconceptions during the investigation and trial. Moreover, society places
great emphasis on individual responsibility when discussing what brought about
sexual violence and how to respond to it.
According to a survey
conducted by the “Joint Committee for Justice in Quasi-rape Cases,” 17% of
quasi-rape victims answered that both the investigative agency and the adjudicating
agency have erroneous perceptions and biases towards them based on the typical
image of a victim of sexual violence, which were illustrated by the agencies’
pointing to the victim’s attitude toward the perpetrator (20%); not behaving like
a real victim (22%); not making an immediate report to the police (17%); and
sexual history (7%).
Especially in case of
sexual violence taking place after the parties have been having fun while
drinking and dancing, for example at a club, there is a dominant perception
over the entire process of investigation and trial that “the victim must have
given consent in a light, fun, or easy manner without much consideration prior
to sexual intercourse.” Spontaneously meeting at a club, being in a good mood from
drinking together, and light physical affection are seen as consent for sexual
intercourse. Such mistaken beliefs and bigotry prevent the perpetrators from
being punished, aiding and abetting them in committing crimes.
Focus on “consent” in quasi-rape cases
The purpose of laws on
sexual violence is to protect sexual self-determination rights. The
determination of how to act should stem from consent. Consent should refer to a
choice that one can make without any pressure concerning engaging in sexual
activities and with a full understanding of their consequences.
What sparks the legal
battle to punish the quasi-rapists who use alcohol and drugs is the victims’ complaint,
“I never gave consent to sex with the perpetrator.” This complaint is why consent
should become the evaluation standard for the crime and why focusing on it
would be the best strategy to protect the sexual self-determination rights of
the victims, who were deprived of their right to make a choice, whether consent
or rejection, due to their state of unconsciousness or inability to resist at
that time.
Shifting the focus to consent
in quasi-rape cases would change the paradigm: no need to prove that the
perpetrator took advantage of the victim’s inability to give consent; it would
be enough just to show that the victim was in no condition to give consent. In
addition, the judicial system should carefully examine claims by the perpetrator to see if he is
insisting he obtained consent from an unconscious victim. Only “full and active
consent” should be seen as valid.
The laws should be
amended to change the standard for quasi-rape to the question of consent.
Accordingly, the investigative agency and the adjudicating agency would need
education and training on the concept of consent and ways to obtain it.
Training to instill gender-sensitive perspectives on the contexts, situations,
structures, and power hierarchies in which sexual violence occurs would be
helpful to clear up any misconceptions or concerns around the amendment.
There must be education
and cultural and political change for the better to spread the basic premise that
“without full-and-active consent, it is sexual violence.” That would be the
most effective way to not only eradicate sexual violence using alcohol or drugs
but also protect people’s rights in a gender-equitable society.
About
the Author Organization: The Catholic Center for Counseling on Sexual Violence
dreams of a world where every individual can set their own route for life by
using their own voice and learning from their own experiences in a social
structure built on gender equality. Against discrimination, prejudice,
violence, and hate, we hope to fight together for the dignity of all, for a
better future. Our goal is to make a society where everyone can become priming
water for the other’s pump—inside women’s everyday lives, we put our heads
together, we stand together in solidarity, and we grow together.
Original article: https://www.ildaro.com/9658
No comments:
Post a Comment