Is non-consensual sex not rape?

Gender ministry's policy U-turn ignites debate over rape

By Lee Hyo-jin

Rape is often defined as forcing someone to submit to sexual intercourse against their will. A question arises in cases when consent hadn't been established explicitly between individuals involved in a sex act: is it rape?

Korea's Criminal Law defines the crime of rape as sexual activity against one's will involving "violence or intimidation." As such, in order to secure a rape conviction, prosecutors must prove that the perpetrator had used or threatened violence against the victim. Sexual assault against a victim in a vulnerable state, such as under the influence of alcohol or drugs, is seen as "quasi-rape."

In recent years, women's rights groups and civic activists, who claim that the existing rape law is outdated and insufficient to protect the victims, have been strongly demanding the legal definition of rape to be expanded to include non-consensual sex.

But the idea has drawn fierce backlash from some men who believe that a consent-based definition of rape may result in an increase of false rape accusations. They view that whether the sexual activity was consensual or non-consensual will be difficult to confirm in court proceedings.

The thorny issue was spotlighted again recently after the Ministry of Gender Equality and Family retracted a plan to review revisions to the rape law to include non-consensual sex, a few hours after it was announced.

Vice Minister of Gender Equality and Family Lee Ki-soon speaks during a Jan. 26 briefing on the government's framework on gender equality policies to be carried out from 2023 to 2027. Yonhap

At a briefing on the government's third framework on gender equality policies held on the morning of Jan. 26, Vice Minister Lee Ki-soon said the ministry will "review widening the scope of the legal definition of rape to non-consensual sex not involving the use of physical force." If legislated, victims will no longer have to provide proof of violence or threat, coercion or resistance against their assailants.

But soon after the briefing, the Ministry of Justice, which oversees criminal law policies, told reporters that it does not have plans to review such proposals, implying that the two ministries had not discussed the agenda thoroughly in advance.

Rep. Kweon Seong-dong of the ruling People Power Party (PPP) claimed that the proposed revision will only worsen gender conflicts.

"Such a law may result in possible false rape allegations. It will be highly difficult to determine a criminal offense based only on a victim's claim," he wrote on Facebook. The lawmaker also said that state intervention over individuals' sexual activities, which are considered a private matter, should be limited to a minimum level.

Later that day, the gender ministry reversed its plan, saying that expanding the definition of rape to include non-consensual sex is not a policy that is being considered by the Yoon Suk Yeol administration.

"The government does not have plans to revise related bills regarding non-consensual sex," it said in a text message sent to reporters about eight hours after the initial announcement.

The ministry's flip-flop drew criticism from women's rights groups and liberal lawmakers, who lamented that the government is backpedaling on rape laws, as opposed to some European countries that have already adopted consent-based rape laws in a bid to better protect victims.

'Yes means yes, no means no'

Similar controversies have arisen in many other countries, the result of which about a dozen European nations including Germany, the United Kingdom, Sweden and Portugal have introduced revised rape laws based around the so-called "yes means yes" and "no means no" models.

According to a report published by Korea's National Assembly, Germany previously required "violation and intimidation" as a legal condition of rape. But after a revision was made in November 2016, the country now defines rape as "sexual relations against victims' expression."

In 2018, Sweden also passed revision bills stipulating "without consent" instead of "violation and intimidation."

More recently, in August 2022, Spain's congress passed a legislation referred to as the "only yes means yes" law, which defines all non-consensual sex as rape, in the wake of a gang rape case in which an 18-year-old woman was raped by five men in 2016.

Rep. Na Kyung-won, head of the then-main opposition Liberty Korea Party speaks during a conference on proposed bills to revise the rape law to expand the scope to non-consensual sex, held at the National Assembly, Aug. 24, 2018. Korea Times file

As for Korea, spurred by the #MeToo movement in 2018, similar bills were proposed both by conservative and liberal lawmakers, with some calling for revisions of the legal definition of rape to "having sexual relations with others without consent."

The proposed bills, however, failed to pass the National Assembly. People who opposed the legislation commented sarcastically that, "If the law gets passed, couples should sign written contracts before having sex so as to be safe from false accusations."

Lee Eun-eui, a lawyer specializing in sexual offense cases, viewed that the absence of a legal recognition that non-consensual sex is rape is creating a major loophole in the legal system.

"In many rape offenses, the victim had shown clear signs of non-consent both verbally and physically, but the perpetrator escaped conviction because there is no evidence of violence or threat," she told The Korea Times. "Plus, the absence of legal recognition that non-consensual sex is rape feeds into the perception that it is a woman's responsibility to fiercely protest to protect themselves from being raped."

According to Lee, the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) called on Korea in March 2018 to revise the definition of rape on the basis of the absence of consent.

The attorney blamed the government's inaction to follow the U.N. committee's recommendation despite widespread public opinion that non-consensual sex should be criminalized. The Korea Sexual Violence Relief Center surveyed 600 people ― 300 women and 300 men ― in their teens to 40s in June 2021 and found that 96.7 percent of the respondents agreed that non-consensual sex is a sexual offense.

Seung Jae-hyun, a researcher at the Korean Institute of Criminology and Justice, viewed that Korea should consider adopting a consent-based definition of rape. But he called for a prudent approach.

"One of the most serious cognitive distortions among rape offenders is that they do not perceive no as no," he said. "In that sense, I agree that Korea should begin discussions on defining rape based on consent in a bid to recognize rape from a broader perspective."

However, whether courts will be able to confirm non-consent remains a tricky issue, he said.

"Proving that sex took place is rather easy using DNA samples and other evidence. But when it comes to proving consent ― whether it be verbal or non-verbal ― between the individuals, the issue gets very complicated," said the criminology expert. "Before making revisions to the rape law, the authorities should thoroughly study the cases in other countries that have adopted similar laws and see if there have been any side effects, and then come up with our version of the 'no means no' law."