Date rape: legal tug-of-war or clear-cut offense?

By Kwon Ji-youn, Yoon Sung-won, Park Jin-hai

She was in her 40s and on a date with her boyfriend. They'd had coffee; they'd watched a movie ― there wasn't much else to do in the city. They drove down to a leisure resort and reserved a room.

Things started to heat up and before she knew it, they were making love.
But as they kissed, caressed and fondled each other, she felt fear. Was this love? Was it too soon? What about protection?

She tried to break away, but he wouldn't stop, dug his nails into her forearms and then forced her onto her back.

"He later said he had felt irrational anger when she pushed him away, after having engaged in fondling for so long," a staffer at a local sexual violence relief center said. "He explained that he couldn't stop so close to climaxing."

The 43-year-old woman, who had recently endured a devastating divorce, assumed that she would never experience rape, especially not at her age.

Another woman, just over 30 years old, met a man through a match-making Internet site. After two or three dates, the man asked her over to his place, where he cooked a meal for her. They had a few drinks before having sex. Later, she filed a complaint against him accusing him of raping her. He denies the allegations against him and the case is still pending at a court.

In another case, a male high school student slept with a middle school student. Whether it was consensual or not has yet to be established, but the girl's mother filed a lawsuit against the student for date rape.

Public awareness on the issue of date rape increased after charges for this offense were recently dropped against actor Park Si-hoo. A celebrity aspirant had accused Park of having raped her when she was intoxicated, after a late-night drinking session at a street side vendor. At the time, Park alleged that she had not been drunk and that they'd had consensual sex.

The case was ended three months later when the woman dropped all charges against Park, without giving a clear reason.

Date rape refers to forced sexual intercourse upon a victim with whom an individual has dated or is dating. This is not treated differently from other cases of rape under criminal law in Korea. According to precedent, rape committed by a friend or acquaintance is also categorized as date rape.

"Most date rape cases occur under the influence of alcohol," the relief center staffer said. "Men take advantage of women who are drunk and unable to make good decisions."

Although the concept is unfamiliar to many Koreans, date rape is surfacing as a problem in society, where heavy drinking is common.

According to Kim Kwang-sam, a lawyer and sexual violence expert at The Ssam Law Firm, the number of date rape cases has been rising steadily. In a significant number of these cases, women who charge acquaintances of date rape win.

"Women fear that their cases may be widely exposed, and often hesitate because they worry that they don't have enough evidence," he said. "They also worry that they may have to meet their assailants during dual examination."

He advised that any injuries or signs of attack can be used as evidence during a trial, such as a missing button or a ripped shirt.

Furthermore, as long as women provide consistent accounts, there is little that men can do to counter their allegations, according to Kim.

"As long as a victim's testimony is credible and reliable, the court usually rules in favor of the victim," he said.

However, Kim stressed that in a good number of cases, those accused have been proven innocent.

Kim, who has taken on several cases of the sort, said that there are as many innocent suspects as guilty ones.

"In Korea, if a woman follows a man into a motel room, it is possible the man understood this to mean consent to have sex," he said. "Some women exploit this situation and file complaints out of anger or regret."

He continued, "Currently, Korea's legal system, at least regarding date rape, depends strongly on a victim's statement and tends to trust such testimony. Maybe that's why many defendants claim that they are falsely charged," Kim said.

In Korea, men tend to assume that their female partners have agreed to have sex with them unless a woman expresses a strong repulsion or clearly says no, which, in many cases, creates serious misunderstandings, according to the lawyer.

Kim said that in many cases, men say women don't mean "no" when they say "no." Sometimes they're just shy.

"Sometimes men think women are just playing a game of tug-of-war, and they follow through," Kim said. "I believe deliberation needs to take place in such cases."

There exist guidelines in the United States detailing how to avoid date rape. The New York State Police, on its webpage, suggested tips such as "avoiding intoxication, drinking from a bowl of punch or meeting initial dates in secluded places.

However, Choi Young-jin, an activist working for the Korea Sexual Violence Rescue Center (KSVRC), a hotline for rape victims, has reserved feelings about highlighting such seemingly harmless guidelines.

"This could send a false message that a victim is to blame. It's like saying you were victimized because you weren't careful," said Choi. "It's the same as saying, if you return home at an early hour you are free from the worries of rape."

According to Choi, of the 1,321 cases reported to the center in 2012, 9.4 percent were incidents of rape between spouses or partners. "We don't have statistics about rape cases between friends or acquaintances. So if you include those, the number would be larger," she said.

"What Korea needs, I think, is an understanding that rape is rape, even if it happens between lovers. The concept of date rape is still new here, and many male offenders don't recognize that it is a serious act of criminal violence," she stressed.