Kim & Rhee law Office
Rape Allegation
Rape | Strategic Defense by a Sex Crime Attorney
What Is Rape Under Korean Criminal Law?
Criminal Act Article 297 (Rape)A person who, by means of violence or intimidation, has sexual intercourse with another shall be punished by imprisonment with labor for a limited term of at least three years.
Criminal Act Article Article 300 (Attempts)Attempts to commit any of the crimes of Articles 297, 297-2, 298 and 299 shall be punished.
Rape is committed when a person engages in sexual intercourse after using violence or intimidation to overcome the other person's ability to resist.
The key issues in a rape case are whether the victim's free sexual self-determination was violated and whether the violence or intimidation was severe enough to make resistance difficult.
What are the penalties for rape, and what factors may mitigate or aggravate the sentence?
Rape is punishable only by imprisonment. There is no fine available as a sentencing option. Under the Criminal Act, rape carries a statutory sentence of at least three years' imprisonment. However, depending on mitigating and aggravating factors, the sentencing guidelines generally range from 1 year and 6 months to 7 years of imprisonment.
Because rape is considered a serious sex crime, a substantial prison sentence may still be imposed even when mitigating factors are present. Mitigating factors in rape cases are extremely limited.Because rape is treated as a serious sex crime, even a reduced If the allegation is admitted, obtaining a settlement agreement and a statement of non-punishment from the victim is often one of the few available mitigating circumstances.
In practice, one of the most important defense strategies is actively demonstrating that no aggravating factors are present. Accordingly, when the allegation is admitted, the most effective strategy is often to negotiate a settlement with the victim while simultaneously defending against aggravating sentencing factors.
Rape sentencing: mitigating and aggravating factors
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| Category | Subcategory | Mitigating Factors | Aggravating Factors |
|---|---|---|---|
| Special Sentencing Factors (Sentencing Range) | Conduct |
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| Offender / Other Factors |
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| General Sentencing Factors (Determination of Sentence) | Conduct |
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| Offender / Other Factors |
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What are the standards for a suspended sentence in a rape case?
As discussed above, rape is an offense for which the factors supporting a suspended sentence are limited.
Therefore, if the allegation is admitted, it is important to defend against aggravating factors and obtain the victim’s statement that they do not seek punishment.
It is also necessary to demonstrate genuine remorse and show that both the defendant and those around them are making efforts to prevent reoffending.
The key objective is to actively demonstrate that the risk of reoffending is low and that the victim’s harm has been substantially addressed.
Factors considered for a suspended sentence in rape cases
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| Category | Subcategory | Positive Factors | Negative Factors |
|---|---|---|---|
| Primary Considerations (Major Factors) | Risk of Reoffending |
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| Other Factors |
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| General Considerations (Supplementary Factors) | Risk of Reoffending |
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| Offender / Other Factors |
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Rape is a serious sex crime
and a wrong decision cannot easily be undone.
If you have been wrongfully accused,
a precise and proactive action is essential.
What evidence is most important for defending against a rape allegation?
In rape cases, both objective evidence and the credibility of witness statements play a critical role in determining whether the offense is established.
In practice, however, statements often serve as the primary evidence, while physical evidence functions as supporting circumstantial evidence.
(1) Three frequently disputed evidentiary issues
- Whether the evidence shows consent was given
- Whether the evidence demonstrates violence or threats severe enough to overcome the victim’s resistance
- Whether the evidence supports the consistency and credibility of the statements made by the accused or the alleged victim
(2) Importance of evidence by type (practical priority)
- Chat records (KakaoTalk, text messages, direct messages)
- The atmosphere before and after the incident, plans, expressions of consent or refusal, and post-incident reactions - CCTV footage and movement records
- Travel routes, entry and exit times, whether the parties were together, and physical condition - Call records, location data, and credit card transaction records
- Reconstruction of timelines, alibis, and movements - Medical records, medical certificates, and photographs of injuries
- Evidence of physical force and the extent of injuries (although injury alone does not prove rape) - Physical evidence from the scene (bedding, clothing, DNA, etc.)
- Evidence confirming that sexual intercourse occurred
(3) Factors considered when evaluating credibility
- Consistency of statements: whether earlier and later statements remain consistent
- Logical coherence: whether the statements are internally consistent and reasonable
- Naturalness of key details: whether descriptions of the time, place, and conduct are persuasive and believable
- Consistency with surrounding circumstances: whether the statements align with CCTV footage, messages, travel records, payment records, and other evidence
- Whether conduct immediately after the incident can be reasonably explained
(4) Important precautions when collecting evidence
- Contacting the other party in an attempt to obtain favorable evidence can be extremely risky.
- Threatening, persuading, or discussing a settlement during communications may significantly undermine future arguments for acquittal or dismissal.
- Illegal recordings, unlawful filming, unauthorized access to communications networks, or invasions of privacy may expose you to additional criminal liability.
- Deleting or concealing unfavorable evidence may increase the likelihood of detention and trial while in custody.
How should you respond at each stage of a rape investigation?
In rape cases, the initial response during the investigation often determines the overall direction of the case.
If you have been contacted by investigators or have been informed that a complaint may be filed against you, you should seek legal advice immediately.
Step One: Develop a strategy with a sex crime defense attorney
- Determine whether to deny or admit the allegation
- If denying the allegation, establish a clear strategy for responding to the investigation
- If admitting the allegation, develop a settlement strategy and prepare sentencing mitigation materials
Step Two: Challenge unfavorable evidence and secure favorable evidence during the police investigation
- Analyze evidence obtained by the police (CCTV footage, mobile phone data, messages, and witness statements)
- Review the victim’s criminal complaint and develop a statement strategy
- Challenge the credibility of statements made by the victim and witnesses
- Prepare favorable evidence demonstrating that the sexual activity was consensual
- Conduct interview preparation and simulations for police questioning
Step Three: Defend against the allegation through a legal opinion letter
- Impeach the credibility of the victim’s and witnesses’ statements
- Rebut evidence collected by the police
- Establish the consistency and credibility of the suspect’s statements
- Actively argue for dismissal of the allegation
Step Four: Strategies for non-prosecution or a suspended sentence if the allegation is admitted
- Negotiate to reduce the settlement amount from the strongest possible position
- Prepare persuasive mitigation materials tailored to the circumstances of the case
- Respond promptly to prosecutorial action and prepare for potential trial proceedings
As experienced sex crime defense attorneys,
we understand your concerns better than anyone.
Kim & Rhee Law Office
"We will never make false promises to secure your engagement."
"We will never use fear or pressure to persuade you to hire us."
"We will never treat your case carelessly after engagement."
"We will never delay communication after accepting your case."
There has only ever been one way to resolve countless criminal cases.
— Professionalism and trust as attorneys —
We will devote every skill, experience, and resource we have built over the years to resolving your case.
We will stand with you until you are able to return to your normal life.
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