1. Overview

The client met a woman through a dating application. The client invited the woman to his house for dinner and had sex (with consent). They eventually liked each other and decided to date. Later, while the client was talking with the woman, he learned that the woman was under criminal trial and the client was curious about the story and asked her what was undergoing. The woman then responded carefully to the client's questions. For some reasons, they began to quarrel then the woman left the client’s house. After few days passed, the client realized that the woman reported him for rape.

The client said that the woman was offended by his words so she reported the client as a victim of sexual assault. The client visited Law-Win in Gwangju office to seek for help.

2. Applicable Law

Criminal Act

Article 298 (Indecent Act by Compulsion)

A person who, through violence or intimidation, commits an indecent act on another shall be punished by imprisonment for not more than ten years or by a fine not exceeding 15 million won.

 

Article 299 (Quasi-Rape, Quasi-Indecent Act by Compulsion)

A person who has sexual intercourse with another or commits an indecent act on another by taking advantage of the other's condition of unconsciousness or inability to resist shall be punished in accordance with Article 297, 297-2, or 298.

 

3. Assistance of Counsel

As the case took place while the client and the woman were in an enclosed place, virtually the only direct evidence was each other's statements. However, in sexual crime cases, it is not easy to deny the victim’s statement. In fact, it was not easy for the client to prove not guilty because the client had physical contact with the woman.

Moreover, the woman claiming to have been harmed had been diagnosed with a grade 3 intellectual disability, so it was a situation prone to prejudice or presumption that the client lured and molested a woman with a disability.

However, the defense attorney got a hint from the content of the actual conversation between the client and the woman, and determined that it might not be the first time that the woman had reported it as a sex crime. Although there is a history of reporting, we have secured evidence that the interrogation has been closed by the investigation agency as evidence that contradicts the claim has been found. In addition, while examining the victim as a witness, the defense counsel was able to find out that many of the woman's statements were false as a result of intensively digging into inconsistent statements and statements contradicting objective evidence.

Above all, the victim stated that the client touched her body while she was asleep in the investigation agency, but she appeared in court as a witness and when she was sleeping, the client touched her body. Accordingly, the prosecution decided that it was difficult to maintain the prosecution under the previous crime of 'Quasi-indecent act by compulsion' and changed the name of the crime to 'Indecent act by compulsion'.

4. Outcome

As a result, the court found that the testimony of the victim was not consistent and the credibility of the statement was low due to the inconsistent statement of the woman and the false statement contrary to objective evidence.

5. Significance of the Outcome

In a sexual crime case, it is not easy to obtain objective evidence other than the victim's statement, and the credibility of the victim statement cannot be easily rejected just because there is a slight difference in the victim's statement for such a reason.

On the other hand, it is difficult for the accused or the accused claiming not guilty to secure evidence to support their assertion, so in the end, the statement of the accused who asserts innocence is rejected and a conviction is pronounced based on the victim's statement in many cases.

This case started with only a statement, and the client had no data to prove his innocence other than the statement. However, this case was a case in which the court was finally acquitted by changing the judge's conviction of guilt by securing evidence through the defense's application for evidence and impeaching the credibility of the statement through detailed analysis of statements.

Attorney Jo, Hyoung-ray and Kim, Hae-am