[Contribution] Criminal Punishment for Patting a Child Because They're Cute?...The Court's Criteria for Judging Child Molestation

Attorney Kim Jin-won, Daeryun LLC (Limited)

There are no few cases where expressions of affection toward children go beyond everyday goodwill and escalate into legal disputes. A representative example is patting the head or holding the hand of a child encountered at a park or playground simply because the child is cute. One may plead that it was well-intentioned, but the court's recent criteria for judgment operate far more strictly than in the past.

The most important criterion is whether it was physical contact against the other person's will. Indecent assault by force is not established only when strong physical force is involved. So-called "surprise molestation," carried out suddenly against the other person's will, is in itself regarded as an infringement of the right to sexual self-determination. In other words, even a part of the body generally considered non-sensitive, such as the back of the hand or the shoulder, can sufficiently become subject to punishment depending on the situation and context.

In particular, when the victim is a child or adolescent, the matter is very grave. In such cases, the "Act on the Protection of Children and Adolescents against Sexual Abuse" (the Child and Adolescent Act) applies, and the level of punishment is drastically strengthened. Children are considered to have a lower ability to perceive situations than adults and to find it difficult to clearly express refusal. Therefore, the defense that "there was no sexual intent" is not easily accepted in practice. Even if there was no actual contact, if one has commenced execution, such as by reaching out a hand toward a body part, one can be punished even for attempted indecent assault by force.

The reason the court applies such a strict standard is that, in judging whether child molestation occurred, it prioritizes "social norms" over the actor's subjective motive. Considering the characteristics of children who are in the process of forming their sexual values, the court recognizes the intent to molest within a far broader scope than the adult standard. This is why the claim that one simply touched because the child was cute is difficult to justify legally. Ultimately, whether "sexual freedom was infringed" is strictly examined by comprehensively considering the specific situation at the time, the part of contact, and the relationship with the child.

Attorney Kim Jin-won of Daeryun LLC advised, "If you become unexpectedly embroiled in child molestation charges, the act of panicking and directly visiting the victim child or their parents to apologize must be approached with extreme caution. This is because it can be perceived as circumstances admitting the charges, or misunderstood as additional harm."

He emphasized, "From the early stage of the case, you must receive the assistance of an attorney specializing in sex crimes and legally reconstruct the fact that there was no sexual purpose in the conduct at the time. Only by promptly securing objective materials such as dashcam or CCTV footage and demonstrating that the situation at the time fell within the category of everyday goodwill can you prevent serious disadvantages such as an unjust sex-offender stigma and employment restrictions."

● Contributions from external writers may differ from this publication's editorial direction.

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