Hello.

This is Attorney Lee Kyung-jun from Cheongchul Law Firm.

While working as a prosecutor in charge of sexual violence cases, I have handled various sexual violence cases, among which, I think I dealt with the most sexual assault cases. Many suspects have asked, "I just patted them on the back in good intentions, is this considered sexual assault?" In reality, many people think, "It was an action done with good intentions, why is it sexual assault?" However, the crime of sexual assault can be established even without a sexual intent or purpose.

The key is whether there was bodily contact against the will of the other person, and whether this was recognized.

1. Sexual assault is based on 'the other person's will', not 'intent'

Article 298 of the Criminal Code stipulates that anyone who ‘commits sexual assault against another person by violence or intimidation shall be punished’.

Here, 'sexual assault' refers to an act that objectively causes sexual humiliation or disgust to an ordinary person and violates the victim's sexual autonomy, contrary to decent sexual moral standards.

Court precedents state that for the crime of sexual assault to be established, 'subjective motives or purposes to stimulate, excite, or satisfy sexual desire are not necessary.' In other words, 'the intent to commit an assault' is not required.

Additionally, the court has ruled that ‘if the act of sexual assault itself can be evaluated as violence’, that is, if there was bodily contact against the will of the other person at the time of the situation, then the crime of sexual assault can be established even without separate violence or intimidation. This is known as the principle of 'sudden assault.'

According to the court's legal principles, if an act of suddenly touching the other person's body occurs against their will at the time of the act, that alone can establish sexual assault.

2. Unconsented bodily contact requires caution

In everyday life, lightly patting someone's shoulder or arm or holding hands does not always lead to sexual assault.

However, if the other person did not want it or could feel discomfort given the situation, and if it is not a regular relationship with mutual physical contact, any intention of 'encouragement' or 'friendliness' from your perspective could sufficiently lead to issues.

In particular, in situations such as workplaces, schools, or company gatherings where hierarchical or social relationships are entangled, if a superior engages in such behavior towards a subordinate, even if the other person cannot immediately express, "I dislike this," the act is highly likely to be assessed as 'bodily contact against the will of the other person.'

In other words, if the bodily contact was unconsented in advance, even if the intention was 'encouragement', it could still be classified as sexual assault.

3. Then, when does bodily contact not constitute sexual assault?

Not all bodily contact immediately results in sexual assault. In cases such as the following, there may be no clear 'act against the will of the other person' or 'intent to commit an assault,' and therefore may not be recognized as a crime.

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A. When bodily contact with the other person was agreed upon in advance

​For example, if you are in a romantic relationship or if there has been regular physical contact (holding hands, hugging, linking arms, etc.) that is natural between you, then this current bodily contact is hard to see as against the other person's will. Natural physical contact may have been mutually understood.

In this case, the requirement of 'contact against the other person's will' is not met, and therefore, sexual assault cannot be established.

If there was no problem with the act at the time, later raising issues about that physical contact does not constitute sexual assault.

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B. When bodily contact occurs accidentally

​Situations where bodily contact occurs unintentionally, such as on the subway, on stairs, in narrow corridors, or at gatherings where physical contact was not intended, are difficult to regard as sexual assault.

To establish the crime of sexual assault, there needs to be 'awareness and intent to touch the other person's body', that is, intent to commit an assault.

Ultimately, whether sexual assault is established depends on ① whether the act was against the will of the other person at the time, and ② whether the perpetrator was aware of this fact (intent to commit the assault); these two factors are key.

Even in similar situations, the results may vary based on the relationship with the other person, surrounding circumstances, and so forth. Therefore, if you are investigated for allegations of sexual assault, it is important to explain this clearly and specifically from the initial statement stage.

4. Punishment levels when evaluated as an assault

If actual bodily contact is evaluated as 'sexual assault', generally the level of punishment is higher than commonly thought. Even mild physical contact such as hugging or patting could result in fines of over 5 million won.

If there was touching of sexually sensitive areas, you could face a formal trial with the possibility of suspended prison sentences, and depending on the frequency and areas of the offenses, even actual imprisonment.

In particular, when you are punished for sexual assault, even if the fine amount is low, additional measures such as completion orders and employment restrictions follow, and you may face significant limitations in your future social life compared to those punished for other crimes.

5. In conclusion

Even if it is an expression of encouragement or friendliness, if it was a bodily contact that the other person did not want at the time, the crime of sexual assault can be established.

It is important to avoid problematic bodily contact in advance, and if an investigation is underway for sexual assault, it is essential to respond through a professional lawyer from the initial stage.

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