Spousal rape hot discussion topicIn the courtroom of the Supreme Court, a total of 14 justices, including Yang Sung-tae, chief justice of the Supreme Court, and prosecutors, attorneys, law school professors as well as experts in the legal field had a heated discussion during the open hearing of a criminal case regarding spousal rape on Thursday.
An open hearing is held when the ruling on a case is expected to have a large impact on society. In the grand courtroom, they reviewed law principles, the history of other cases and the origin of certain terms.
In October 2011, a 45-year-old man had sex with his wife three times. But it wasn’t a traditional kind of spousal sex.
While fighting with his 41-year-old wife, the husband threatened her with a kitchen knife then forced himself on her. The husband was indicted with detention in November 2011 by prosecutors after the wife’s siblings reported the husband’s behavior to the police and the wife later filed charges against him.
In November last year, the Seoul High Court sentenced the husband to three and a half years in prison and ordered him to wear an electronic anklet, a tracking device used on sex offenders to constantly monitor their whereabouts.
The high court at the time saw the husband’s behavior as a type of severe rape, in the category of gang rape and rape with a deadly weapon.
The country’s law states in Article No. 297 that a rape charge is applied when a person has sex with a “woman” by using violence or threats.
In Korea, once a woman is married, she is typically considered part of a family, which then in a way makes her no longer considered a woman.
The argument before the Supreme Court is whether a wife should be included in the category of woman.
The side advocating for women’s human rights protection is saying that it is beyond discussion. “There is no such language in the country’s criminal law that says wives are excluded from the category of woman,” senior prosecutor Lee Kun-ree from the Supreme Prosecutors’ Office said.
But Shin Yong-suk, the attorney for the husband, said, “Biologically, humans are included in the category of animals, but we don’t literally say humans are animals. In family relationships, a father does not see his wife or daughters as women.”
The perspective that says a wife can’t be a husband’s target for rape crimes includes the idea that couples are obligated to have sex to maintain their marriage.
“If we punish the ‘marital rape’ cases without considering the special nature of the relationship between a husband and a wife, it could possibly give those wives who have a bad relationship with their husband a chance to bend the rules to their favor when they file a divorce suit,” said law Professor Yoon Yong-kyu from Kangwon National University, who attended the open hearing as a reference witness for the defendant.
“What the law protects is the right to make decisions about sex,” a law professor Kim Hye-jung from Yeungnam University said. “Marriage doesn’t mean that a woman is giving up her right to make her own decisions regarding sex.”
Since the 1970s, most advanced countries have begun changing husbands with raping wives. The United Kingdom, where the principle “marital exemption” was born, discarded it in 1991. In 1984, a New York court punished a husband who was charged with raping his wife, stating, “A marriage license signed by a husband and a wife isn’t permission to commit rape.”
By Choi Hyun-chul, Kwon Sang-soo [email@example.com]
with the Korea JoongAng Daily
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