In the wake of the #MeToo movement, in which women courageously spoke out about the sexual violence they had suffered and others spoke up in support of them, the range of actions acknowledged as sexual violence has broadened and social awareness that sexual crimes should be reported has increased. Unfortunately, however, there is still no shortage of people who call victims ggot-baem and believe that false accusations of sexual crimes are common.  

 

When it was first reported this month that actor Kang Ji-hwan had been arrested on charges of quasi-rape [rape of a person who is not in a state to resist], some blamed the victims or questioned the truthfulness of their stories. This is because of the myth that many accusations of sexual violence are false ones, belief in which is widespread despite the lack of evidence to support it.  

 

▲ On July 19, the Supreme Prosecutors’ Office and the Korean Women’s Development Institute co-hosted a forum called “Gender Analysis of False Accusations of Sexual Violence and a New Categorization of Crimes of Sexual Violence” at the Supreme Prosecutors’ Office.

The truth about false accusations of sexual violence has finally been revealed: , it is commonplace only in people’s minds. At the forum “Gender Analysis of False Accusations of Sexual Violence and a New Categorization of Crimes of Sexual Violence”, held at the Supreme Prosecutors’ Office on July 19, an analysis of records relating to the crime of falsely reporting sexual violence was presented. The analysis is one of several joint research projects embarked on by the Supreme Prosecutors’ Office and the Korean Women’s Development Institute since the two organizations entered into a cooperation agreement in December of last year.

 

Less than 1% of sexual assault allegations are false

 

Korean Women’s Development Institute deputy researcher Kim Jeong-hye and her team compiled a list of every police case involving false accusations charges and then narrowed it down to those involving only false accusations charges. Then, among the cases in which the inciting incident could be known, they analyzed 1,190 in which the alleged victim of sexual assault was charged with making false accusations. They found that false accusations were alleged by prosecutors 27.7% of the time and police 2.5% of the time, while an overwhelming 70% of charges were the result of reports by others. 

 

At just 1.8% of cases, rape/forceful molestation/quasi-rape was the least common set of charges. Causing/inflicting bodily injury through adultery/rape/molestation made up 2.4% of cases, while the filming/sharing of pornographic materials/trespassing with sexual intent made up 2.9% of cases, causing/inflicting bodily injury through quasi-rape/forceful molestation made up 12.4% of cases, and adultery/rape/forceful molestation made up the lion’s share at 80.6%. This means that there were many allegations of false accusations in cases of “ordinary” adultery/rape/forceful molestation, in which there is little chance of finding physical evidence and which is not special rape [a category of crimes that includes, for example, incestual rape] or the causing or inflicting of bodily injury.

 

In 91.1% of cases, the sex crime victim (the person accused of making a false accusation) was female, and a majority of the accused were also adults, though there were 44 cases against underaged people. Only one of the latter cases was prosecuted, however. Ms. Kim, the researcher, said, “We can see that even underaged victims of sexual assault have been accused by their assailants of making false accusations.”

 

▲ Registered cases of sexual violence (top) and of false accusations of sexual violence (bottom) by month in 2018. ©Source: Handout from the the Supreme Prosecutors’ Office and the Korean Women’s Development Institute co-hosted forum “Gender Analysis of False Accusations of Sexual Violence and a New Categorization of Crimes of Sexual Violence”

Among the 1,190 incidents of suspected false accusations of sexual assault, 32.7% were actually prosecuted. A mere 7.6% of these cases originated with a complaint from the defendant or other parties outside of law enforcement. These statistics tell us that there are many cases of the perpetrator in a sexual assault case falsely accusing the victim of making a false accusation.

 

The research team estimated that, over a two-year period beginning in 2017, 556 people (a number including those accused of additional crimes) were prosecuted after being accused, by law enforcement or others, of making false accusations. This is a mere 0.78% of the 71,740 people who reported being the victim of sexual crime. The number who were found guilty must be even lower.  

 

Ms. Kim explained the implications of these results, saying that not only is the proportion of reports of sexual crimes that result in false accusations charges very small, but that “sexual assailants’ use of false reporting charges as a defensive measure should be strongly criticized”. She added, “Attorneys’ encouraging of (perpetrators’) counter-charges must be clearly recognized as unethical.”

 

Prosecutors’ “declining to press charges” doesn’t mean the victim made a false accusation

 

Prosecutor Park Eun-jeong, head of the Seoul Central District Prosecutors' Office’s Department of Investigation of Crimes Against Women and Children, said, “In our current legal system, any falsehoods in the victim’s testimony that relate to the elements of the criminal sexual assault and are clearly  contrary to objective fact are considered false accusations of sexual assault.”

 

Ms. Park continued, “Korea’s sexual assault laws take not the absence of consent but the presence of violence or threat as the prerequisite for establishing the crime of sexual assault. This means that it cannot punish as a sexual crime sexual relations to which the victim didn’t consent but that didn’t involve actions that rise to the level of violence or threat.” Her statement pointed out the problem with the Korean legal system, which doesn’t recognize nonconsensual sexual relations as sexual assault unless the use of violence or threat can be proven. She also said, “This is why incidents involving sexual assault are close to two times as likely as those involving other crimes to end in ‘a lack of evidence’ or [prosecutors] ‘declining to press charges’.”

 

However, she explained, “While it is reasonable to assume that this high percentage of ‘declining to press charges’ in sexual assault cases means that the percentage of false accusations is also about twice as high, in reality the percentage of ‘declining to press charges’ and that of false accusations are not proportional.” She then introduced a recent decision by the Supreme Court.

 

<If, by reason of a lack of evidence, there is a decision not to prosecute or a verdict of not guilty in a case in which an alleged victim has reported that he or she is the victim of sexual assault, this alone should not be taken as positive evidence of a false accusation and lead to a conclusion that the complaint was false, nor should the alleged victim’s arguments related to his or her sexual assault and the circumstances leading to the report be excluded lightly based on imposed criteria about how a true victim would have acted and without sufficient consideration of the particular circumstances that the alleged victim faced in an individual, specific incident.> (Supreme Court Decision 2018Do2614, decided July 11, 2019)

 

Ms. Park explained, “In sexual assault investigations, in practice, victims may report  sex that they didn’t clearly consent to as sexual assault, and even when violence or threats are involved, there are a variety of ways that the victim may resist during the assault, and it’s actually common for some victims’ testimony to be reliable and others’ not. Even if the victim’s resistance is not acknowledged, we need to use extremely strict criteria when judging whether or not their testimony constitutes a false accusation rising to the level of a mendacious assertion.” She added, “Even if a sexual assault incident ends in a refusal to prosecute or a verdict of not guilty, that cannot become grounds for viewing the victim’s account as a false accusation.”

 

Ms. Park also brought up the Ministry of Justice’s recommendation from last year that, in order to prevent secondary victimization of sexual assault victims, investigations into possible false accusations of sexual assault should be suspended until the sexual assault case in question is concluded. She disputes the view of this as unconstitutional because it supposedly violates the principle of the presumption of innocence for the defendant in the sexual assault case.

 

She said: “The application of the principal of the presumption of innocence to the suspect (in a sexual assault case) and making a report about a (sexual assault) victim so that she is investigated for possibly making a false accusation are completely separate processes and subject to different legal principles. The suspect’s right to the presumption of innocence does not include the right to accuse the victim of making a false accusation. Also, if we apply the principle of the presumption of innocence to a victim accused of making a false accusation, it is even more important that the false accusations investigation be initially suspended, as it should only be conducted after the investigation of the original incident reveals the truth of that matter.”

 

Laws using “violence or threat” as standards need to be amended

 

Ms. Park revealed, “Actually, the proportion of decisions not to prosecute or not-guilty verdicts is quite high for false accusation incidents, which runs counter to the common belief that there are a lot of false accusations of sexual assault.” She pointed out that this is because “in the Korean legal system, there is a gap between what a victim claims is sexual assault and the harm that the law recognizes as sexual assault”.

 

▲ The “What is NOT enthusiastic consent?” activity run by the Korea Sexual Violence Relief Center at an International Women’s Day event last March. The circular notes on the right side of the board read “Not enthusiastic consent”.  ©ILDA

Kim Bo-hwa, a senior researcher at Ulim, a research institute attached to the Korea Sexual Violence Relief Center, explained that “sexual violence is generally seen broadly as ‘any violent action that, through the medium of sex, violates another’s right to sexual self-determination, against their will or without their consent, through the use of authority or physical force’ , and UN Women defines sexual violence as ‘unwanted sexual comments, actions, or attempted actions that violate another’s sexuality through the use of force, no matter the relationship or circumstances between the victim and the perpetrator’”.

 

However, the standards for sexual crimes set forth in the Korean legal system are different. Ms. Kim pointed out, “Because the criminal code’s definition of rape is limited to ‘a person who, by means of violence or intimidation, has sexual intercourse with another’, the proportion of incidents that are not prosecuted is high, [the legal definition] is out of sync with the public’s understanding and with real situations of sexual assault, and what’s worse, victims are very likely to be suspected of making a false accusation.”

 

Attorney Oh Seon-hui, speaking from her professional experience, said, “Perpetrators of sexual assault think, ‘For it to have been sexual assault, I would have had to trap her, hit her, and threaten her with a knife,’ and victims think, ‘It was sexual assault because it was sexual behavior that happened against my will.’” To narrow this gap, she argues we must establish “non-consensual sexual intercourse” as a crime.

 

Many women have already shouted out, “That wasn’t flirting, dating, or sex!”[The title of the recently-released Korean translation of Robin Warshaw’s I Never Called It Rape.] and tried to broaden a definition of sexual violence that has been too narrow for too long, but until this is reflected in the law, discussions related to sexual violence are stuck in place.

 

It is certainly meaningful that this statistical analysis of Prosecutor’s Office data has revealed that the reality of false accusations of sexual assault is different from common beliefs, but these analyses of what causes alleged false accusations is even more important. I hope that it spurs discussion on amending sexual assault laws.  

 

By Park Ju-yeon

Published July 27, 2019

Translated by Marilyn Hook

 

*Original article: http://ildaro.com/8514

 

◆ To see more English-language articles from Ilda, visit our English-language blog(https://ildaro.blogspot.com).

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