Intrusion upon Habitation and Indecent Act by Compulsion

[25-2(A) KCCR 212, 2012Hun-Ba320, July 25, 2013]

In this case, the Court upheld the part of Article 3(1) of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes providing that, “A person who commits a crime prescribed in Article 298 (Indecent Act by Compulsion) of the Criminal Act while committing a crime under Article 319(1) (Intrusion upon Habitation) of the same Act shall be punished by imprisonment for life or for not less than five years.” The Court ruled that it does not violate the rule of proportionality between crime and punishment or the rule of equality before the law.

Background of the Case

The complainant was indicted and sentenced to imprisonment for having violated both Article 319(1) (Intrusion upon Habitation) and Article 298 (Indecent Act by Compulsion) of the Criminal Act. With his appeal pending, the complainant filed a motion for constitutional review of Article 3(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes but when denied, filed this constitutional complaint.

Provision at Issue

The subject of review is the constitutionality of the part of Article 3(1) of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (enacted as Act No. 10258, Apr. 15, 2010 but before revised as Act No. 11556, Dec. 18, 2012, hereinafter “Sexual Crimes Punishment Act”) stating, “A person who commits a crime prescribed in Article 298 (Indecent Act by Compulsion) of the Criminal Act while committing a crime under Article 319 (1) (Intrusion upon Habitation) of the same Act shall be punished by imprisonment for life or for not less than five years (hereinafter the “Provision).” The Provision is set out

below:

Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes

Article 3 (Aggravated Robbery, Rape, etc.)

(1)A person who commits a crime prescribed in any of Articles 297 through 299 of the Criminal Act while committing a crime under Article 319 (1), 330, 331 or 342 (limited to an attempt to commit a crime under Article 330 or 331) of the same Actshall be punished by imprisonment for life or for not less than five years.

Summary of the Decision

1. Whether the Rule of Proportionality between Crime and Punishment is Violated

Indecent act by force following a residential intrusion is a combination of offenses, namely intrusion upon habitation (Article 319(1), Criminal Act) and indecent act by compulsion (Article 298, Criminal Act). Prohibition of indecent acts using violence or intimidation is intended to protect the right of sexual determination. This right is essentially linked to personality of individuals, and the victims of such indecency may experience serious mental, emotional disorders. Meanwhile, residence, the center of private life, is also inseparable from people's personality. As such, the safety of life, body and property, as well as the private domain of individuals as the minimum condition for happiness cannot be protected unless the inviolability of residence is guaranteed. And when the right of sexual determination is infringed in such a residential property, the resulting damage can be even more serious. Furthermore, if this offense is committed in the presence of the victim's spouse or family, it would not merely indicate a violation of the victim's right of sexual determination; it may even result in a thorough destruction of a family, which functions as the basic unit of life. The legislature has

newly introduced the criminal element of “indecent act by force following a residential break-in” to the Sexual Crimes Punishment Act in order to impose an aggravated penalty on perpetrators for infringing on such a significant interest in committing a combination of offences. This legislative action is necessary and desirable.

As the statutory punishment prescribed in the Provision is imprisonmentfor life or not less than five years, the judge has the liberty to grant suspended execution of sentence through discretionary mitigation at any time when there are extenuating circumstances for committing the crime. Admittedly, fines cannot be imposed, but excluding fines from statutory penalty is nevertheless not unreasonable given the grave unlawfulness of residential break-in and indecent act by force. For this reason, the Provision does not violate the principle of proportionality that requires the severity of penalties to be proportionate to the gravity of the crime.

2. Whether Principle of Equality before the Law is Violated

The concept of indecent act by compulsion is overbroad, and the damage thereof more often than not is relatively minor and less unlawful compared to rape. Yet, in practice it can be commonplace to have cases where even general acts of indecency not amounting to imitative rape, such as oral sexual intercourse as provided in Article 297-2 of the Criminal Act, should be penalized more heavily than or at least equally as rape or imitative rape depending on the behavioral element, gravity and nature of the crime committed. Uniform imposition of lighter punishment for indecent act by compulsion, by mechanically dividing indecent act by compulsion and rape both following a residential break-in, may rather result in an unbalanced punishment in specific cases. The legislature has established different statutory punishment for indecent act by compulsion, imitative rape and rape respectively in the penal code. However, in case of incorporating a new criminal element of concurrent crimes which combine a regular crime and additional

behavioral element (residential trespass) into special penal law, the Criminal Act will not necessarily be applied as it is; a new evaluation may be required depending on what behavioral element is additionally considered. In this case, when residential trespass is combined with indecent act by compulsion, the legislature decided to impose equal statutory punishment as that for rape or imitative rape taking place after residential trespass on grounds that they are not much different from each other in terms of the protected interest, gravity of crime, reprehensibility, etc, while allowing the judge to sentence the responsible individual to an adequate term corresponding to the conduct or gravity of the crime.

A mere comparison between rape and indecent act by compulsion could easily lead to a conclusion that rape is more grave a crime that deserves higher level of punishment than the latter, but both rape after a residential break-in and an indecent act by force after a residential break-in are very grave crimes in their own right and therefore the difference in gravity between the two is relatively insignificant. In addition, the slightly unconstitutional element possibly implied in the statutory punishment may be overcome through judge's sentencing that matches crime with punishment. So if there is unreasonableness in sentences due to the same statutory punishment for rape after a residential break-in and indecent act by force after a residential break-in, this can be corrected through the judge's sentencing in specific cases. Therefore, it cannot be said that the Provision significantly lacks legitimacy or fails to strike balance of interests under the criminal punishment system and violating the principle of equality.

Dissenting Opinion by Five Justices

1. Whether Principle of Proportionality is Violated

The essence of indecent act by compulsion following a residential

trespass is the indecent act by compulsion. The type of indecent act by compulsion is very broad in scope, which means it involves unlawful acts no less illegal than rape, such as acts inserting one's sexual organ into another's mouth or anus or any instrument into another's genital organ, as well as acts that have much less impact on the right to sexual determination compared to rape. Article 298 of the Criminal Act (Indecent Act by Compulsion) provides that a person who, through violence or intimidation, commits an indecent act on another shall be punished by imprisonment (not more than ten years) or by a fine (not exceeding fifteen million won), and therefore even a relatively minor form of indecent act by compulsion that can be sufficiently punished by fine is also prescribed in the Act. This has been reflected by the legislature: Article 4 or 7 of the Sexual Crimes Punishment Act differentiates rape from indecent act by force and imposes more severe punishment for rape. Also Article 6 and 7, regarding indecent act by compulsion, set apart ones that almost amount to rape such as anal sexual intercourse, etc. from others that do not and subject the former to more severe punishment. Recently, Article 297-2 of the Criminal Act has been newly established to categorize as imitative rape indecent act by compulsion that amount to rape such as acts inserting one's sexual organ into another's mouth or anus or any instrument into another's genital organ, and thereby separate it from other acts of indecency using force, subjecting the former to heavier punishment.

Regarding the ceiling of statutory punishment, Article 42 of the Criminal Act on the term of imprisonment, etc. was amended. The maximum prison term has been raised from 15 years to 30 years (50 years for aggravated punishment), therefore this amendment applies to rape under the Criminal Act accordingly (maximum sentence for indecent act by compulsion under the Criminal Act remains the same at 10 years). This change has greatly broadened the range of maximum sentence between the two crimes from 5 to 20 years, which has greatly increased the need to specify the maximum sentence for respective

crimes. Nevertheless, the Provision stipulates that committing indecent act by compulsion while trespassing residence should be, just like committing rape following a residential break-in, put to imprisonment for life or for not less than five years (maximum sentence is also set at life imprisonment or 30 years in prison, just as rape following a residential break-in). Even indecent act by compulsion much less intrusive of the right to sexual determination than rape is subject to punishment equal to that of the rape in case it is committed on the occasion of a residential break-in. This is against the principle of proportionality that requires penalties to be proportionate to the gravity of crime.

2. Whether Principle of Equality is Violated

Statutory punishment prescribed in the Criminal Act, the general law, reflects a coherent value system for every protected interest, which should be respected unless there is a change of circumstances. Article 297 (Rape) and 298 (Indecent Act by Compulsion) of the Criminal Act provides that the minimum and maximum prison term of rape shall be, with elements of various kinds including gravity of crime and protected interest taken into account, almost 3 years and 20 years higher respectively than indecent act by compulsion. Yet, the Provision imposes equal punishment on indecent act by compulsion and rape, which vary greatly in the nature and gravity of crime, merely because the two offenses have occurred concurrently with residential break-in. This is a violation of the equality principle by treating equally those assessed to be essentially different.

3. Opinion Holding the Provision Conditionally Unconstitutional

Ultimately, on condition that the Provision applies to indecent act by force, with the exception of acts inserting the genitals into the inner part of the other person's body (excluding genitals) such as mouth or anus or inserting part of the body (excluding genitals), such as fingers, or any

object into the other person's genitals or anus, it contradicts the principle of proportionality and justice of the criminal punishment system and is therefore contrary to Article 11 of the Constitution defining all citizens to be equal before the law. For this reason, the Provision is in violation of the Constitution.