Series Index
Part 1 | Unpaid Corporate Transactions: Liability Behind the Veil
Part 2 | Trade Name Continuity and the Liability of a Successor
Part 3 | Directors’ Liability for Damages
Part 4 | The Person Behind the Company Name
Part 5 | The Limits of Self-Defense in Assault Cases
Part 6 | Criminal Settlement Money: How Much Is Appropriate?
Part 7 | Can Quasi-Rape Be Established If One Has No Memory After Drinking?
By Hong Seung-kwon
Principal Attorney, PAN Law Firm (skh@law-pan.com)
It is not uncommon for someone to wake up after a night of drinking and find that parts of the previous evening are missing from memory. This is commonly known as an alcohol blackout. It is an unsettling experience, but memory loss alone does not necessarily create a legal problem. When it is connected to a sexual offense allegation, however, the issue can become extremely serious. This is because Korean criminal law recognizes the offense of quasi-rape. Under the Criminal Act, a person may be punished for quasi-rape if they have sexual intercourse with another person by taking advantage of that person’s state of mental incapacity or inability to resist. The statutory punishment is the same as that for rape and is therefore very severe.
Many quasi-rape cases arise when a person has consumed a large amount of alcohol and has either lost consciousness or become unable to resist. The difficult issue arises in cases involving alcohol blackouts. Medically, an alcohol blackout is understood as a disruption in the process of memory formation. A person may have been able to speak, walk, make judgments and act on their own at the time, but the experience is not later stored as long-term memory. In other words, a blackout means that the person has no memory afterward; it does not necessarily mean that the person was unconscious at the time.
From the perspective of the person involved, however, the absence of memory may lead them to suspect that they had sexual intercourse against their will. Of course, the mere fact that one has no memory does not by itself establish quasi-rape. It must be recognized that, at the time of the act, the alleged victim had lost the normal capacity to make decisions or the ability to resist.
Sexual offense cases often take place in closed spaces, where objective evidence is limited. As a result, the parties’ statements frequently become important evidence. If a person who cannot remember the incident claims that they were unconscious at the time and that the other party took advantage of that state to have sexual intercourse, the possibility of a quasi-rape charge being established increases.
In one recent case I encountered, sexual intercourse after a drinking occasion led to a quasi-rape complaint. The complainants stated that they had been heavily intoxicated and unconscious at the time. Fortunately, however, an audio recording of the conversation between the parties at the scene remained available.
According to the recording, the complainants exchanged natural conversation with the other party during the sexual encounter and expressed their own intentions. Even after the sexual intercourse had ended, they continued to talk and exchange jokes. In my view, it appeared that the complainants genuinely had no memory of the incident. Yet without such a recording, there would have been a significant risk that quasi-rape could have been found. The case shows how serious the consequences of an alcohol blackout can become when memory is absent.
Quasi-rape is by no means a minor offense. If convicted, a defendant is highly likely to face imprisonment and will be subject to sex offender registration. Depending on the seriousness of the case, additional long-term disadvantages may follow, including disclosure of personal information or restrictions on employment. It is, of course, essential to provide strong protection for victims of sexual offenses. It is equally important, however, to prevent innocent people from being wrongfully punished.
Quasi-rape cases have particular characteristics. Sexual intercourse may occur without explicit force or intimidation, and alcohol consumption may create the separate problem of blackouts. For that reason, courts and investigative authorities should continue to assess such cases with careful attention to these specific circumstances.
About the Author
Hong Seung-kwon is the managing attorney of Pan Law Office. His practice covers civil and criminal litigation, as well as emerging legal issues in the digital era. He has continued to analyze how technological innovation, property rights and regulatory change affect law, markets and institutional order.
