"Rapist, Marry the Victim" Controversy in Indian Supreme Court... We Did That Too [Han Seung-gon's Case Notebook]

Indian Supreme Court Controversy Over Forcing Rape Perpetrator to Marry Victim
South Korean Judiciary Made Same Ruling in the Past
KR Court Told Rape Victim, "Since You Are Already Ruined, Let's Pair You for a Lifetime Together"
Will Gender-Sensitive Judgments Recognizing Gender Imbalance Take Root?

File photo. A court in India is causing social controversy by urging a sexual assault perpetrator to marry the victim. [Image source=Yonhap News]

[Asia Economy Reporter Han Seung-gon] As the Supreme Court of India has sparked social controversy by proposing that a man accused of sexual assault marry the victim, South Korea's judiciary has also faced public outrage in the past for making similar remarks. Fortunately, there is now increased attention from the courts on gender sensitivity.

Gender sensitivity refers to the awareness of discrimination, advantages, disadvantages, or imbalances in daily life caused by differences between genders. It began to be internationally recognized after being used at the 4th UN World Conference on Women held in Beijing, China, in 1995.

According to local Indian media such as 'The Hindu' on the 2nd, Chief Justice Sharad A. Bobde said the day before that he was "not applying pressure" but warned the defendant accused of sexual assault that if he does not marry the woman, he must be prepared to face imprisonment.

The defendant, a public official, was charged with stalking and sexually assaulting the woman for several years starting when she was in high school. On that day, the Supreme Court held a hearing on the defendant's bail request.

Regarding the Supreme Court's proposal, the man responded, "At first, I proposed (to the woman), but now I cannot marry her," adding, "I am currently married to someone else."

Meanwhile, the Supreme Court also expressed the view in another case hearing that sexual intercourse during a continuous cohabitation period cannot be considered sexual assault.

In this hearing, the woman claimed she was brutally sexually abused by a man who had promised to marry her. Conversely, the man denied her claim, stating that the woman living with him filed a lawsuit alleging sexual assault after their relationship deteriorated.

Chief Justice Bobde said, "When two people live as husband and wife, the husband may be cruel and make mistakes," adding, "But can we call the sexual relations between them sexual assault?" This statement, which seemed to support the man's claim and suggested that sexual abuse between spouses is not considered a crime, sparked controversy among the Indian public.

[Image source=Yonhap News]

The remarks by the Chief Justice of India, which appear to lack gender sensitivity, have also been made in South Korea in the past. According to media reports, in 1955, Kim, a 27-year-old military police sergeant serving in the Marine Corps while attending university, was tried on charges of having sexual relations with dozens of women.

At the time, Kim had participated in the Korean War, was promoted to captain, but was dishonorably discharged while serving as an officer. Nevertheless, he falsely claimed to be a captain and had sexual relations with many women.

Kim's charges included fraud by marriage and impersonating a public official. In court, he testified, "I never promised marriage, and the women came to me voluntarily. It was common sense to go to a motel after dancing together at a dance hall (now a nightclub), so there was no need to pretend to marry when I had no intention of doing so." He also claimed, "Most of those female college students were not virgins; only one woman who was a beautician was a virgin."

The first trial court ruled, "The law can only protect the sound and pure chastity of modest women," and acquitted him of the fraud by marriage charge. The court also criticized the victims as "promiscuous women," which, compared to the judiciary's state in 2021, showed a lack of gender sensitivity and a trial process that was utterly flawed, making it incomprehensible from the victims' perspective. Later, the case was appealed, and a guilty verdict was confirmed with a one-year prison sentence.

A similar judicial ruling occurred in 1973. According to media reports at the time, a teenage boy sexually assaulted a female classmate. The first trial court sentenced the boy to imprisonment, but the second trial court said, "What's the big deal? Since she is already 'spoiled,' let's rather match them and let them live happily ever after."

The judge persuaded both families and even held an engagement ceremony in court. At that time, sexual crimes were subject to 'complaint crimes,' meaning that prosecution was only possible if the victim filed a complaint, so if the victim agreed to a settlement, the perpetrator was not punished.

About 20 years ago, a similar ruling was also made. The perpetrator, Lee, a 23-year-old excavator operator, picked up a high school sophomore girl who was waiting for a taxi in the rain late at night, saying, "I'll take you to your destination," then took her to a secluded place and sexually assaulted her. The next day, Lee went to meet the victim again but was caught by police who were called by the victim's school teacher.

The victim's parents submitted a petition asking for leniency at the request of Lee's parents. However, the first trial court sentenced Lee to 2 years and 6 months in prison, stating, "The crime is considered premeditated as he lured the woman standing alone in a remote place into his car and sexually assaulted her, showing the severity of the crime."

The problem was another petition. The victim's parents submitted another petition during the appeal, stating, "Both parents agreed to marry the two, so we ask for leniency." The Seoul High Court then sentenced Lee to a three-year suspended sentence, explaining, "Since Lee's parents and the victim's parents agreed to marry their children when they grow up, probation is granted."

It is unclear how much the victim's perspective was reflected. The secondary harm the student likely suffered was truly devastating and horrific.

Meanwhile, gender sensitivity is now an important factor in the judiciary. For example, in March last year, a petition on the Blue House website requesting the removal of Chief Judge Oh Deok-sik from the 'Nth Room case' trial received over 420,000 signatures by the morning of March 31.

The Korean Women's Associations United selected Judge Oh as an obstacle to gender equality along with the 'Telegram Nth Room operators and accomplices' at the 36th Korean Women's Conference, which was live-streamed on YouTube, citing that "he protected the perpetrator and caused secondary harm during the trial process."

Judge Oh has been criticized for lenient rulings toward perpetrators in past sexual crime trials. In August 2019, he sentenced Choi Jong-beom, the ex-boyfriend of the late singer Goo Hara, who was charged with threats and injury, to 1 year and 6 months in prison with a 3-year probation, but acquitted him of illegally filming Goo Hara's body. He judged that Choi could not be considered to have illegally filmed the video, considering the circumstances of filming and the fact that it was not leaked or reported.

The Korean Women's Associations United issued a statement titled "Judge Oh Deok-sik is not qualified to preside over trials related to Telegram sexual exploitation," urging the judiciary to establish a system that assigns courts with gender sensitivity to sexual violence cases.

Subsequently, the Seoul District Court reassigned the trial of defendant 'Taepyeongyang' Lee, related to the 'Nth Room' case, from Judge Oh's Criminal Division 20 to Judge Park Hyun-sook's Criminal Division 22.

The court explained, "It was recognized that the presiding judge had significant difficulties handling the Blue House petition case, and the presiding judge requested reassignment in writing stating the reasons."