hankyoreh

By Kim Won-chul, staff reporter

In a step forward for women's rights to sexual self-determination, the South Korean Supreme Court ruled for the first time on May 16 that husbands may be legally prosecuted for marital rape.

The biggest issue in the decision was whether wives would be considered among the "women" protected under existing rape-related criminal law. Proponents of excluding spouses from the definition argued that the "rape" aspect was the main emphasis. The problem was that according to Korean dictionaries, the word for rape ("ganggan") is defined specifically as a forcible form of non-marital intercourse ("ganeum"). By this logic, wives could not be considered victims of the crime.

On May 16, the Supreme Court sentenced a 45-year-old man to three and a half years in prison for forcing his wife to have sex by threatening her with a lethal weapon. The court upheld a lower court’s ruling that required the man to wear an electronic tracking anklet for ten years and having his profile publicly known for seven years after his release.

But the Supreme Court interpreted the meaning of "ganeum" as referring to sexual intercourse in general. By this reading, wives would be included among the women protected by rape laws.

"The term 'women' ['bunyeo' in Korean] refers to all females, whether they are adults or minors, married or unmarried," the court said in its majority opinion.

All thirteen judges agreed that sexual acts that took place under duress or threat of violence should be punished, including between married couples. But they differed on how the violence or threat should be punished.

In their minority opinion, Lee Sang-hoon and Kim Yong-deok wrote, "It is possible to punish violence and intimidation without necessarily punishing it as rape. This would allow for sufficient protection of the right to sexual self-determination without having to resort to a change from existing precedent."

But the majority ruled that the duty of cohabitation between married couples could not be construed as obliging wives to submit to forcible intercourse.

In the ongoing debate on marital rape, some have argued that the standards for violence and intimidation between married couples should be different from the regular ones. The court responded to this point, saying that any decision would "have to be made carefully, taking into account various factors such as the circumstances under which the husband used physical force, the typical behavior in their married life, and the circumstances surrounding the actual act of intercourse."

More and more countries around the world have been recognizing the criminality of marital rape. The US convicted a husband of it 1984. In 1991, the British Supreme Court ruled en banc to formally abolish a legal provision exempting spouses from rape charges. France actually punishes marital rape more sternly than non-marital rape.

A Supreme Court official said the ruling was "significant in that it protects the wife's right to sexual self-determination and reflects social changes with regard to marriage and sexuality."

The women's rights community welcomed the decision.

"In past cases of domestic violence, men have been prosecuted only for violence, not for sexual violence," said Korea Women's Hotline secretary-general Song Ran-hee. "The means to punish them existed under present law, but the court chose not to take a proactive stance in interpreting the law."

"I hope that after this ruling, domestic violence victims will be able to get the help they need," Song added.

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