North and South Korean criminal laws have quite distinctive features from each other. Below is a comparison of the sections on the criminal law on rape between South Korea and North Korea.
Overall, South Korean legislative provisions regarding rape and sexual offences appear to be wider in their application than those of North Korea. In particular, North Korean rape law is gender specific and covers only women,[1] while the South Korean provisions are gender neutral, hence victims and perpetrators can be either male or female.[2] Additionally, the South Korean Criminal Act covers many forms of penetration, including sexual intercourse, insertion of one’s sexual organ, finger or other bodily part, or any instrument into another's bodily part such as genital organ, mouth or anus.[3] Such specification is not provided in the North Korean legislation and only vaginal rape is criminalised.[4]
With respect to legal age for sexual consent, a person living in North Korea will need to be at least 15 years old to be considered to have the requisite capacity to give valid consent for sexual intercourse. In South Korea, the age requirement is lowered by 2 years .[5] Nonetheless, the new South Korean legislative amendment of 29 April 2020 means that it is still statutory rape regardless of whether the victim’s consent is established where the victim is between the ages of 13 and 16 and the other party is over 19.[6]
Both countries also have their own criminal sanctions, mitigating factors and limitation periods for prosecuting rape. For instance, according to Article 249 of the South Korean Criminal Procedure Act, the limitation period is 5 years or more depending on the seriousness of the case, while in North Korea, this can range from 8 years up to 20 years.[7] In South Korea, mitigating factors for the purposes of punishment include, inter alia, mistake of fact and mental disorders.[8] These factors are also present in the laws of many English speaking countries such as Australia, Canada and England, but not in North Korea. According to North Korean legislation, the only circumstance when the perpetrator’s mental element is taken into account as a condition for mitigating a penalty is when the crime is committed because of strong mental pressure.[9]
Despite the above differences, both North and South Korean rape laws are based on a combination of the lack of consent of the victim and the use of force or threat, although it should be noted that the wordings in both countries’ provisions place more focus on the use of force or threat rather than the notion of consent.[10] Various types of aggravating circumstances are recognised, such as repeated crimes, rape of a minor or rape of a particularly vulnerable individual.[11]
Neither countries impose in their substantive or procedural criminal law a mandatory requirement for proof of rape, such as medical evidence or the need for witnesses. However, taking legal action remains a complicated issue for rape victims, especially in circumstances where the perpetrator is the victim’s spouse or intimate partner. Marital rape is not explicitly included or excluded in either nation’s legislation, but is criminalised by being covered in the general provisions or by legal precedent. Under Article 19 of the North Korean criminal law, the exemption of criminal liability for crimes committed against family members or relatives does not apply where the crime committed is rape. Nonetheless, marital rape is not regarded as an aggravating circumstance. The number of reports and prosecutions of sexual offences is limited in both North and South Korea, with one of the reasons being the permission of reconciliation between the victim and the perpetrator.
In South Korea, both public and private prosecution are available, meaning a victim can either bring a civil suit for damages caused by rape, or report the crime to police who will then prosecute the offender on behalf of the State. However, South Korean police practice is still to discourage victims from reporting and encourage them to make peace with the perpetrator, particularly if they have had a romantic relationship or are married. Meanwhile, interviewees of a study conducted by the Citizens’ Alliance for North Korean Human Rights reported that sexual assaults and family violence are rarely, if ever, prosecuted, and that there is no concept of violence against women in North Korea. Regarding reparation to the victim of rape and/or sexual violence after conviction of the perpetrator, in South Korea, victims may agree with perpetrators on an amount of compensation at the investigation stage.[12] Likewise, the North Korean law allows for reparations to victims by alluding to voluntary compensation by the offender as a mitigating factor to sentencing, but does not provide for it elsewhere.
In sum, North Korea and South Korea share a number of similarities and differences regarding the law on rape and sexual offences. In North Korea, this area of law appears to be simpler than to its Southern counterpart, as it only criminalises rapes between male perpetrators and female victims, and only for vaginal rape. However, there is a lack of attention paid to marital rape in both countries, based on the absence of a specific section regarding this issue in the Acts and the police practice of discouraging victims from reporting and reconciling with the perpetrators. Like many other countries, this results in a large amount of cases remaining unreported.
Olivia Ho
Law Graduate, James Cook University
July 2020
[1] The Criminal Law of the Democratic People's Republic of Korea (2015) Art 279 https://www.lawandnorthkorea.com/laws/criminal-law-2015.
[2] South Korean Criminal Act Art 297.
[3] Ibid, Art 297-2.
[4] The Criminal Law of the Democratic People's Republic of Korea (2015) Art 279.
[5] South Korean Criminal Act Art 305; The Criminal Law of the Democratic People's Republic of Korea (2015) Art 295.
[6] https://news.mt.co.kr/mtview.php?no=2020043011060127693
[7] The Criminal Law of the Democratic People's Republic of Korea (2015) Art 56.
[8] South Korean Criminal Act Art 10, 13, 16.
[9] The Criminal Law of the Democratic People's Republic of Korea (2015) Art 40.
[10] South Korean Criminal Act Art 297; The Criminal Law of the Democratic People's Republic of Korea (2015) Art 297.
[11] South Korean Criminal Act Art 56, 302, 303, 305-2; The Criminal Law of the Democratic People's Republic of Korea (2015) Art 293 – 295.
[12] See, e.g. South Korean Criminal Act Art 81, 82, 99.