The difficulty of exonerating yourself of a crime

Sexual crimes are usually quite difficult to prove innocence unless only the accuser and the accused know the exact truth and there is no CCTV, etc. In addition, the accuser’s allegations can lead to criminal proceedings such as search, arrest, and detention from the beginning, making it difficult for the average person to properly prepare and defend themselves.

Let’s take a look at two recent cases that we actually handled at Ansae Law Firm to see how you should handle yourself if you are accused of a sexual offense.

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Applicable law

Article 297 of the Criminal Code (Rape)

Whoever rapes a person by assault or threat shall be punished by abandonment for a term of not less than three years.

Article 298 of the Criminal Code (Indecent Assault)

A person who commits indecent assault on a person by assault or threat shall be punished by imprisonment for up to 10 years or a fine of up to 15 million won.

Article 14 of the Special Act on the Punishment of Sexual Violence Crimes (Filming with Cameras, etc.)

A person who uses a camera or other mechanical device with similar functions to photograph a person’s body that may cause sexual desire or shame against the will of the person being photographed shall be punished by imprisonment for up to seven years or a fine of up to 50 million won.

Sexual offense cases

In the first case, according to the victim’s allegations, suspect C was accused of rape at Hotel A in Jung-gu, Seoul, where he forcibly inserted his penis into the victim’s genitals and raped her after suppressing her rebellion. While raping the victim, he filmed the rape with the suspect’s cell phone, and after the rape was over, he filmed the victim sitting on the bed in a naked state again, thus violating the Act on the Punishment of Sexual Offenses (Filming with Cameras, etc.).

 As soon as we were assigned to this case, we reviewed all relevant materials in order to secure evidence that could prove the defendant’s innocence. First of all, we reviewed all KakaoTalk conversations, phone calls, and contents of phone calls between the suspect and the victim before and after they met on the day of the incident, and selected evidence that could help prove their innocence.

In addition, to prove that the suspect and the victim voluntarily entered Hotel 00 by mutual consent, we filed an evidence preservation request under Article 184 of the Criminal Procedure Act for the CCTVs of the restaurants and bars they visited before going to Hotel 00 and the convenience store in front of Hotel 00.

Evidence preservation requests are not commonly made in criminal cases, but in this case, it was essential to secure evidence to prove innocence, and CCTV recordings are often automatically deleted after 30 days, so it was necessary to secure evidence as soon as possible.

Fortunately, the evidence secured by the defense and the persuasion of the suspect convinced the victim to tell the truth and the suspect was cleared at the prosecution stage.

(If you would like to learn more about evidence preservation claims, please refer to our previous blog post https://blog.naver.com/ahnseoffice/222936027281).

In the second case, Defendant K, who worked as a medical doctor, was accused of touching the victim’s buttocks while she was lying on her side in the name of positioning her during a medical procedure, and forcibly molesting her by rubbing her waist and calves.

The defense focused on the fact that Defendant K’s touching was not forcible molestation, but rather unavoidable touching in the course of medical practice. We emphasized that the place where the incident occurred was an open space, and since Korean medical materials were not sufficient, we secured medical education materials in the United States to emphasize that Defendant K’s physical contact was sufficiently in the course of medical practice.

We also reviewed a number of lower court cases and were able to obtain a number of acquittals in cases similar to the above, which we submitted as evidence and argued for Mr. K’s acquittal, which was accepted by the court.

Conclusion

Sexual crimes are very difficult to secure evidence, and there is no general procedure for securing evidence, so you need to look at each case and think about what evidence is most appropriate in that case and prepare a strategy for each case.

In particular, for the average person involved in a sex crime, it is difficult to understand the criminal procedure and even more difficult to understand how to secure evidence. Therefore, if you are in this position, it is important to appoint an experienced lawyer from the beginning of the police investigation.

At Anse Law Firm, we have 20 years of experience in obtaining acquittals and exonerations for sex crimes such as rape, indecent assault, and camera recording, and we will continue to work hard to ensure that no one is wrongfully convicted.