Public Indecency: How Courts Judge Publicity and Obscenity

What "Publicity" Means

Publicity refers to a state in which an obscene act could be perceived by an unspecified number of people. It does not require an obscene act directed at a specific small group; it is enough that there is a possibility that several people could perceive it. Even if no one actually witnessed the act, publicity is recognized as long as there was a possibility that many people could have perceived it. In this sense, publicity is judged by reference to the possibility of perception by the public.

What "Obscenity" Means

Obscenity refers to conduct that stimulates the sexual desire of an ordinary person, arouses sexual excitement, and harms a normal sense of sexual shame, thereby running counter to sound sexual morals or decent notions of sexual propriety. In other words, it includes sexual acts or expressions that society cannot tolerate. The standard for obscenity is determined by whether, from the viewpoint of an ordinary person, the conduct stimulates sexual desire and thereby has a negative effect on social morality and sexual values.

The Concept of Public Indecency

Public indecency is set out in Article 245 of the Korean Criminal Act and punishes a person who performs an obscene act in public through bodily movements or postures. It is an offense in which publicity and obscenity operate at the same time, and anyone who commits it may be subject to imprisonment for up to one year, a criminal fine of up to KRW 5 million, detention, or a minor fine. Public indecency is a legal restriction that prohibits performing, in a public place, sexual conduct that may cause discomfort to others.

The assessment of publicity turns on whether the act could potentially be perceived by an unspecified number of people. For example, publicity may be recognized where someone performs an obscene act in a public place or engages in sexual conduct in a location where others can easily see it. The assessment of obscenity, on the other hand, is determined by whether the act or expression is sexually provocative and inappropriate by general social standards. This is evaluated according to legal interpretation together with social and moral standards.

These standards of publicity and obscenity can be somewhat fluid as society changes, and the courts decide on a case-by-case basis by considering the specific circumstances. Ultimately, public indecency can be understood as a legal mechanism designed to maintain public sexual morality and to prevent discomfort to others.

Accordingly, whether public indecency applies is determined by whether the act could potentially be perceived by an unspecified number of people, and whether the act is obscene in a way that runs counter to an ordinary person's notions of sexual morality. Where both of these elements are satisfied, a person may be punished for public indecency.

Elements of Public Indecency

Public indecency is an offense that is established when an obscene act is performed in an open place, and its elements are publicity and an obscene act.

First, publicity means a state in which an unspecified number of people could perceive the act. In other words, a problem can arise where the act is performed in a public place or outdoors where others can easily see it.

An obscene act refers to conduct that stimulates the sexual desire of an ordinary person, arouses sexual excitement, and harms a normal sense of sexual shame, thereby running counter to notions of sexual propriety. Such an act does not necessarily have to depict a sexual act or clearly reveal a sexual intent. Moreover, even if the person does not subjectively aim to arouse or satisfy sexual desire, the offense is established so long as the person is aware that the act is obscene.

Punishment for Public Indecency

Under the Korean Criminal Act, public indecency is an offense that may be subject to imprisonment for up to one year, a criminal fine of up to KRW 5 million, detention, or a minor fine.

The severity of punishment for public indecency is determined by various factors. These include prior convictions for the same type of offense, the number of offenses, the degree of harm, the severity of the conduct, the age of the victim, and whether a settlement with the victim has been reached. Public indecency is an offense with a high recidivism rate, and if a risk of reoffending is recognized, there is a possibility of detention, so caution is required. In addition, if a person is convicted of public indecency, security measures such as an employment restriction order or an order to complete a sexual violence treatment program may be imposed.

In some cases, however, public indecency may result in a suspended indictment (기소유예). A suspended indictment is a disposition in which guilt is recognized but the prosecutor declines to indict and grants leniency; through it, a person can avoid criminal punishment and security measures.

Public Indecency Compared with Other Sex Offenses

Public indecency differs from sexual assault or indecent assault. Sexual assault involves physical force or threats, and indecent assault involves coercing sexual conduct against the victim's will. Public indecency, by contrast, refers to performing a sexual act in an open place without physical contact.

Examples of Public Indecency

Real-world examples of public indecency include exposing one's genitals or engaging in obscene conduct in a public place. In such cases, the court decides the severity of punishment by considering the specific circumstances.

How to Respond to Public Indecency

If you witness an act of public indecency or become a victim of one, you should report it to the police immediately and seek protection through legal procedures.

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