Indecent Assault: Elements, Penalties, Aggravated Punishment, Security Measures, and Settlement

Indecent Assault

The offense of indecent assault is defined under Article 298 of the Korean Criminal Act.

Article 298 (Indecent Assault) A person who commits an indecent act on another through violence or intimidation shall be punished by imprisonment for not more than 10 years or by a criminal fine not exceeding KRW 15 million.

Elements of Indecent Assault

The elements of indecent assault are: that the act is carried out by means of violence or intimidation, and that an indecent act is committed on a person.

Violence or Intimidation in Indecent Assault

The violence or intimidation in indecent assault does not need to be so forceful as to make resistance by the other party difficult; rather, it should be understood as exercising unlawful physical force against the other party's body (violence), or communicating harm of a degree that could generally instill fear in the other party (intimidation).

(Supreme Court en banc Decision 2018Do13877, Sept. 21, 2023)

Indecent Act in Indecent Assault

An indecent act in the context of indecent assault means an act that objectively causes sexual shame or disgust in an ordinary person, runs contrary to sound notions of sexual morality, and thereby infringes upon the victim's right to sexual self-determination. Whether a particular act constitutes an indecent act must be determined carefully, taking into account the totality of factors such as the victim's intent, gender, age, the prior relationship between the offender and the victim, the circumstances leading up to the act, the specific manner of the act, the surrounding objective situation, and the notions of sexual morality of the time.

(Supreme Court Decision 2024Do3061, Aug. 1, 2024)

Sentencing Standards for Indecent Assault

The sentencing standards for indecent assault, according to the sentencing guidelines of the Sentencing Commission, are as follows.

Type	Category	Mitigated	Basic	Aggravated
1	General indecent assault	~ 1 year	6 months ~ 2 years	1 year 6 months ~ 3 years
2	Indecent assault of a minor	1 year ~ 2 years	1 year 8 months ~ 3 years 4 months	2 years 8 months ~ 4 years 8 months
3	Indecent assault by a relative/aggravated indecent assault	2 years 6 months ~ 4 years	3 years ~ 6 years	5 years ~ 8 years
4	Indecent assault involving trespassing, etc.	3 years 6 months ~ 5 years	4 years ~ 7 years	6 years ~ 9 years
5	Indecent assault during aggravated robbery	5 years ~ 8 years	7 years ~ 11 years	9 years ~ 13 years

Aggravated Punishment for Indecent Assault

Under the Aggravated punishment for indecent assault may be imposed under the ‘Act on the Protection of Children and Youth against Sexual Abuse (청소년성보호법)’ and the ‘Act on Special Cases Concerning the Punishment of Sexual Crimes (성폭력처벌법)’, resulting in heavier penalties than those provided for ordinary indecent assault.

Article 7(3) of the Act on the Protection of Children and Youth against Sexual Abuse defines indecent assault against a child.

Article 7 (Rape, Indecent Assault, etc. against Children and Youth)

(3) A person who commits the offense set forth in Article 298 of the ‘Criminal Act’ against a child or youth shall be punished by fixed-term imprisonment for not less than 2 years or by a criminal fine of not less than KRW 10 million and not more than KRW 30 million.

Article 4(2) of the Act on Special Cases Concerning the Punishment of Sexual Crimes defines aggravated indecent assault.

Article 4 (Aggravated Rape, etc.) (1) A person who commits the offense set forth in Article 297 (Rape) of the ‘Criminal Act’ while carrying a deadly weapon or other dangerous object, or jointly with two or more persons, shall be punished by life imprisonment or by imprisonment for not less than 7 years. <Amended on May 19, 2020>

(2) A person who commits the offense set forth in Article 298 (Indecent Assault) of the ‘Criminal Act’ by the means described in paragraph (1) shall be punished by fixed-term imprisonment for not less than 5 years. <Amended on May 19, 2020>

In addition, these laws also define offenses such as indecent assault against persons with disabilities and indecent assault against a minor under the age of 13, among others.

Security Measures for Indecent Assault

Security measures for indecent assault are imposed when the indecent assault charge is established and a disposition of a criminal fine or heavier is rendered.

The security measures for indecent assault are as follows.

Disclosure of personal information
Completion of sexual education
Restrictions on employment
Restrictions on visas
Wearing of an electronic anklet, etc.

Settlement in Indecent Assault Cases

Reaching a settlement with the victim in an indecent assault case can lead to leniency. However, because indecent assault is not an offense not prosecutable against the victim's will, a defendant may still be punished even after reaching a settlement.

Moreover, since reaching a settlement is generally taken to mean an admission of the charge, the likelihood of an acquittal becomes very low once a settlement has been made.

If the suspect makes unreasonable settlement demands of the victim, this may be recognized as secondary harm and could lead to aggravated punishment; and where the suspect personally negotiates the settlement amount, this may in some cases be regarded as showing no sign of remorse. For this reason, if you are involved in a sexual offense, it is advantageous to contact a sexual assault attorney to resolve the matter.

Settlement Amount for Indecent Assault

There is no legally fixed settlement amount for indecent assault; it is determined solely by agreement between the parties and can therefore vary considerably depending on the circumstances, but it is typically set somewhere in the range of KRW 2 million to KRW 15 million.

However, where a heavier sentence is anticipated, such as in cases of aggravated indecent assault, the standard may differ.

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