Women and Justice: Keywords

Domestic Case Law

Supreme Court Decision 2013Do7787 (2015)

Sexual violence and rape

Defendant (a Private First Class officer in the army) met Victim (a 10-year-old girl in the 4th grade) through an online gaming site. While video chatting, Defendant repeatedly requested Victim show her body from the waist down. Victim showed her private parts on several occasions to Defendant while video chatting. The military prosecutor indicted Defendant on the charge of sexual abuse under the former Child Welfare Act. Two courts acquitted the Defendant and the military prosecutor appealed to the Supreme Court. The Supreme Court held that “sexual abuse” refers to sexual harassment, sexual assault, cruel acts, etc. which cause a victimized child to feel shame, and can undermine a child’s health and welfare or harm a child’s normal development. The Court also held that whether an act constitutes “sexual abuse” should be determined objectively according to social norms by factoring in specific circumstances, such as: (i) intent, gender, and age of the offender and victimized child; (ii) whether the victimized child had knowledge on sexual values and ability to exercise the right to sexual self-determination; (iii) relationship between the offender and the victimized child; (iv) background leading up to the act; (v) detail of the committed act; and (vi) impact of such act on the victimized child’s personality development and mental health. The Supreme Court reversed the lower court’s judgment because Victim, who was just 10 years old, lacked knowledge on sexual values and did not have the ability to protect herself; therefore, she was not capable of exercising the right to sexual self-determination. Defendant took advantage of Victim’s ignorance and naivety for his own sexual satisfaction. Even if Victim complied with Defendant’s demand without expressing any resistance and did not experience physical/psychological pain due to Defendant’s act, Victim could not voluntarily and earnestly exercise the right to sexual self-determination. As such, Defendant’s act committed against Victim constituted sexual abuse.