Hello. I am attorney Lee Kyung-jun of Cheongchul Law Firm.

Consultations from people who have been reported for sending sexual expressions through text messages, KakaoTalk, SNS comments, or game chat are steadily increasing. This is the crime of cyber sexual harassment using telecommunication media, commonly called "tongmaeum." Because even a single message or a short comment can become a problem, many people feel anxious.

However, the belief that "any sexual expression automatically means a conviction" is not accurate. This offense is not established merely by the level of the expression; it also requires a separate element called "purpose." Even for the same sentence, guilt or innocence can differ depending on the purpose behind it.

Today, I will summarize the elements and punishment of tongmaeum, and the standard that separates guilty from not guilty, focusing on the Supreme Court decision of September 13, 2018 (case No. 2018Do9775).

1. What is tongmaeum? — Sexual Violence Punishment Act Article 13 (성폭력처벌법 제13조)

Cyber sexual harassment using telecommunication media is prescribed in Article 13 of the Act on Special Cases Concerning the Punishment of Sexual Crimes (성폭력범죄의 처벌 등에 관한 특례법). It punishes a person who, for the purpose of arousing or satisfying one's own or another person's sexual desire, causes words, writing, images, or videos that provoke sexual shame or aversion to reach the other party through telecommunication media such as telephone, mail, or computer.

The statutory penalty is imprisonment for up to 2 years or a fine of up to 20 million won. Although it may seem light at first glance, because it is classified as a sex crime, a conviction can be followed by collateral disadvantages such as sex offender registration or employment restrictions, so it is by no means a matter to take lightly.

Here, "reaching" includes not only the case where the other party directly views the content, but also placing it in a state where the other party can actually perceive it. This means that even if the recipient has not read the message, if the transmission created a state in which it could be perceived, it can be regarded as having reached them.

2. The key is 'purpose' — tongmaeum is a crime of specific intent

The most important characteristic of tongmaeum is that this offense is a "crime of specific intent (목적범)." The Supreme Court made clear that the purpose in tongmaeum is "a subjective surplus element required separately from intent." In other words, the mere fact of having sent sexual content (intent) is not enough; the "purpose of arousing or satisfying sexual desire" must be separately proven.

Whether this purpose existed is not judged by the outward expression alone. The Supreme Court held that it must be reasonably judged in light of social norms, comprehensively considering various circumstances such as the relationship between the defendant and the victim, the motive and background of the act, the means and method, the content and manner, and the character and scope of the other party.

3. The scope of 'sexual desire' — belittling and mockery are included too

Then, must the expression necessarily aim at sexual intercourse for tongmaeum to be established? No. The Supreme Court decision 2018Do9775 interpreted the scope of "sexual desire" broadly.

The Supreme Court held that sexual desire "includes not only desire that has sexual acts or sexual relations as its direct purpose or premise, but also desire to obtain one's own psychological satisfaction by giving the other party sexual shame, such as by sexually belittling or mocking them."

In this case, the defendant, after ending a romantic relationship, sent the other party text messages containing sexual content. The lower court found him not guilty, reasoning that "he merely intended to shame the victim out of anger, and the purpose of sexual desire was not proven." However, the Supreme Court reversed the judgment with a guilty implication, holding that seeking psychological satisfaction by sexually belittling or mocking the other party also constitutes sexual desire.

4. When it is still found not guilty

Conversely, even when sexual expressions are included, there are cases where tongmaeum is not established. If the main purpose of the expression is judged to be not sexual desire but merely venting anger, insult, or an emotional outburst in the course of a quarrel, a not-guilty verdict may be rendered.

For example, when someone uses sexual profanity with the intent to insult the other party in a situation where a dispute has broken out, the court may not recognize the purpose of sexual desire. In that case, it is not tongmaeum, but rather a question of whether another crime such as insult (모욕죄) or intimidation (협박죄) is established.

Ultimately, in tongmaeum cases, "why the expression was made" is as decisive as "what expression was made." If the prosecutor cannot prove the purpose of sexual desire beyond a reasonable doubt, there can be no conviction.

5. The heavy collateral consequences of a conviction

Even if only a fine is imposed, tongmaeum has a large impact because it is a sex crime. If a conviction becomes final, accompanying dispositions may follow, such as becoming subject to sex offender registration.

This means the effect on one's occupation and daily life can be greater than the sentence itself. Therefore, tongmaeum should not be approached complacently as "a case where you just pay a small fine"; it is important to precisely contest the presence or absence of purpose from the early stage.

Meanwhile, a settlement with the victim can have a meaningful effect on sentencing, but a settlement alone does not let you avoid punishment. Because tongmaeum is a crime that can be punished regardless of the victim's wishes, a strategy of contesting the elements of the offense itself must be established separately from any settlement.

6. What to check if you have been reported

If you become subject to a complaint or investigation for tongmaeum, please check the following.

① Secure the full conversational context before and after the message at issue. Looking at the expression in isolation is unfavorable, but the surrounding context becomes key material for contesting purpose. ② Organize, in chronological order, your relationship with the other party and the motive and background that led to the expression.

③ Gather materials to support that the expression stemmed from an emotion other than sexual desire. ④ Because the initial statement steers the direction of the entire case, it is safest to consult a defense attorney and decide the direction of your statement before any questioning.

7. Closing

Tongmaeum is not a crime that is automatically established simply because a sexual expression was included. The prosecutor must prove the element of "the purpose of sexual desire," and it is at this point that guilt and innocence are divided. At the same time, the Supreme Court broadly recognizes even the purpose of belittling or mockery, so a complacent response can lead to a heavier result than expected.

A tongmaeum case is a battle over purpose and context, not the level of the expression. If you have been reported or contacted for investigation, please decide your response direction from the early stage together with a criminal defense specialist attorney who is a former prosecutor. Cheongchul Law Firm will examine the context of the case in detail and draw out the most favorable result for our client.