"Punishment Concerns Over Accidental Physical Contact"... What Is the Constitutional Court's Response to the 'Subway Molestation' Man's Constitutional Petition?

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[Asia Economy Reporter Kim Daehyun] #1. A 27-year-old man, Mr. A, was brought to trial last August for allegedly grabbing a victim's buttocks on Subway Line 2. He bowed his head, saying, "I am sorry to the victim who must have felt shame and emotional hurt. I will never commit such a crime again."

#2. Similarly, Mr. B, also 27 years old, was indicted last October for allegedly pressing a specific part of his body against a victim's buttocks on Subway Line 9. Mr. B also pleaded, "I have reflected a lot since that day and apologize to the victim. I will live properly without such incidents in the future."

On the 17th of last month, Judge Jeong Seongwan of the Seoul Central District Court Criminal Division 14 held a sentencing hearing for those charged with violating the Act on Special Cases Concerning the Punishment of Sexual Crimes (Sexual Violence Punishment Act) and sentenced each to a fine of 3 million won.

Man Convicted of 'Subway Sexual Harassment' Charges Files Constitutional Complaint Against Article 11 of the Sexual Violence Punishment Act

Article 11 of the Sexual Violence Punishment Act, which deals with the crime of sexual harassment in crowded public places, stipulates that "a person who sexually harasses another in public transportation, performance or assembly venues, or other crowded public places shall be punished by imprisonment for up to three years or a fine of up to 30 million won." According to statistics from the Supreme Prosecutors' Office, more than 1,500 cases of sexual harassment in crowded public places have consistently occurred each year since 2013.

However, in 2019, a constitutional complaint was filed against this provision. Mr. C, who was indicted and had his conviction upheld by the Supreme Court for touching a victim's thigh on the subway in 2017 like Mr. A and Mr. B, filed a constitutional complaint arguing that "Article 11 of the Sexual Violence Punishment Act violates the principles of legality, including clarity and prohibition of excess."

The argument was that 'sexual harassment' is an abstract concept, yet the law does not specify additional elements regarding the perpetrator's intent and means or the victim's condition, making its meaning unclear and raising concerns that incidental physical contact could lead to criminal punishment.

Constitutional Court: "Reasonable Understanding of What Constitutes 'Sexual Harassment' Is Possible by Applying Sound Common Sense"

Regarding this, the Constitutional Court announced on the 1st that it unanimously ruled the constitutionality of Article 11 of the Sexual Violence Punishment Act, stating that it does not violate the principles of clarity and prohibition of excess.

The Court stated, "A person with sound common sense and ordinary legal sensibility can reasonably understand what acts constitute sexual harassment under the provision, so it does not violate the principle of clarity under the principle of legality."

It added, "The establishment of the crime of sexual harassment in crowded public places requires intent to sexually harass. Also, factors such as the victim's gender and age, the relationship with the perpetrator, the circumstances of the incident, the objective surrounding situation, and the sexual moral standards of the time are comprehensively considered in the determination. Therefore, incidental physical contact without intent to sexually harass is not punishable under this provision, so it does not violate the principle of prohibition of excess."

The Court further explained, "According to statistics from the Supreme Prosecutors' Office and others, sexual harassment in crowded public places continues to occur steadily every year, and sexually harassing a person in public places frequented by many causes discomfort and shame to the victim. Criminally punishing such acts to protect individuals' sexual self-determination rights is a significant public interest."

Additionally, it stated, "Due to the challenged provision, the petitioner is only restricted from committing acts of sexual harassment that infringe on others' sexual self-determination rights in crowded public places. The public interest achieved by the challenged provision outweighs the private interests infringed upon."