What Is Sexual Harassment?
Sexual harassment refers to unwanted sexual remarks or conduct that makes the other person feel sexually humiliated or ashamed.
Under the law, sexual harassment is defined by Korean Supreme Court precedent as follows.
In the context of work, employment, or other relationships, sexual harassment means conduct by an employee of a public body such as a state agency·local government, a school of any level, or a public-interest-related organization, or by an employer·supervisor, or worker at a workplace, who ① uses their position or, in connection with work, makes the other person feel sexually humiliated or repulsed through sexual words, conduct, or demands, ② disadvantages the other person for refusing to comply with sexual words, conduct, or demands, or offers a benefit on the condition of compliance.
(Korean Supreme Court Decision 2017Du74702, decided April 12, 2018)
In other words, the sexual harassment defined by law most often presupposes an employment relationship.
Types of Sexual Harassment
The types of sexual harassment are as follows.
- Physical sexual harassment
- Verbal sexual harassment
- Visual sexual harassment
- Other forms of sexual harassment
Elements of Sexual Harassment
The elements that establish sexual harassment include the use of one's position or a connection with work, the presence of sexual words, conduct, or demands, and conduct that makes the victim feel sexually humiliated or repulsed.
Sexual words and conduct refer to physical, verbal, or visual acts relating to a physical relationship between men and women, or to the physical characteristics of a man or woman, which, judged objectively in light of the sound common sense and customs of the community, could make an ordinary, average person in the same position as the other party feel sexually humiliated or repulsed.
(Korean Supreme Court Decision 2007Du22498, decided July 10, 2008)
Remarks that demean women or reflect patriarchal attitudes, when they are not sexual in nature, do not amount to sexual harassment.
Use of One's Position or a Connection With Work
This reflects a broad notion of work-relatedness, and sexual harassment covers not only cases where the sexual words or conduct occur by taking advantage of an opportunity to perform work or while carrying out work, but also cases where authority is abused or sexual words or conduct are committed under the pretext of performing work.
Whether a connection with work is recognized must be judged by considering the specific circumstances, such as the relationship between the two parties, the place and situation in which the act occurred, and the content and degree of the act.
(Korean Supreme Court Decision 2005Du13414, decided December 21, 2006)
If the use of one's position or a connection with work is recognized, an act may constitute sexual harassment even if it occurs outside the workplace or outside working hours.
Punishment for Sexual Harassment
Punishment for sexual harassment is provided for only in certain special cases.
For this reason, with regard to sexual harassment, a different offense often has to be applied depending on the specific matter.
Laws Related to Punishing Sexual Harassment
The laws related to punishing sexual harassment are as follows.
- Child Welfare Act, Item 17
- Aviation Security Act, Item 23
- Railroad Safety Act, Item 47
- Act on Equal Employment and Support for Work·Family Balance, Articles 12 through 14
(However, these laws impose a duty on the employer to take disciplinary action, and the employer is punished when they fail to do so.)
Offenses That May Apply to Sexual Harassment
The offenses that may apply to sexual harassment are as follows.
- Criminal insult and defamation
- Indecent assault
- Obscenity through telecommunications media
Because the elements differ for each matter, it is necessary to check whether the relevant elements are met in each case.
Security Measures for Sex Crimes
A security measure for a sex crime is an additional measure imposed when a person who has committed a sex crime receives a disposition of a criminal fine or heavier.
The types of security measures for sex crimes are as follows
- Disclosure of personal information
- Completion of sex education
- Employment restrictions
- Visa restrictions
- Wearing an electronic anklet, among others
If a guilty verdict is handed down in a criminal trial, it may be possible to file a claim for damages for sexual harassment on that basis. In such cases, the situation varies and the procedure can also be difficult, so we recommend consulting a criminal defense attorney who specializes in sex crimes.
