Men Can’t Get Raped in Korea? (Updated)

( Source )

But in Korea at least, perhaps the most appropriate revenge would have been to inflict the same back on the rapists? For I’ve just been shocked to learn that legally speaking, men can’t actually be the victims of rape here.

In fairness however, Korea is by no means the only jurisdiction that strictly defines rape as non-consensual penile penetration of the vagina, so perhaps my reaction was quite naive. But still, recall that not only is spousal rape not a crime, and that the Korean Bar Association remains opposed to its criminalization, but that there is also endemic sexual violence within the military.  So it’s not like some decidedly archaic notions of sexual identity and rape don’t still exist both in theory and in practice in Korea.

Accordingly, the fact that males can’t be raped is not so much highlighted as taken for granted in the webtoon Judge Byeon Hak-do’s Puzzling Law Questions (알쏭달쏭 변학도 판사의 법률이야기) below, instead focusing on the question of if a rapist of a male to female transsexual would be charged with rape or indecent assault instead, concluding that as the victims are not considered women in Korean society then it would be the latter. And indeed as of 2006, only 25 transsexuals had been successful (and 26 denied) in their applications to change their legal gender, easily the most famous being entertainer Harisu (하리수) and model Choi Han-bit (최한빛) below:

( Sources: T-L, T-R, B-L, B-R )

That figure was taken from “Hallyoo, Ballyhoo, and Harisu: Marketing and Representing the Transgendered in South Korea” in Complicated Currents: Media Flows, Soft Power, and East Asia (2010), which I highly recommend for those of you more interested in the current state of transgender and transexual rights in Korea (full disclosure: this blog is mentioned in it!). As for the webtoon itself, unfortunately it raises more questions than answers, and the last 2 panels in particular make little sense, and I think are supposed to be a joke. But I’m not going to write it off because of the medium (quite the opposite), and unlike the pig-ignorant, racist, and anti-Semitic comic history books that some of you may recall from 2007, the webtoon series as a whole does at least seem to be written by someone who knows the subject, probably even by a judge himself.

Below, I’ve literally translated all of it (including all the sounds!), adding notes where necessary. But as always, I welcome and appreciate any corrections:

• Comic #2. In the case of the rape of a man who has had a sex change operation to become a woman, does that [actually] carry the charge of rape?

• Heo-poong, we are going to launch a product called “Eong-bbong”, and want you to come up with a marketing plan.

What’s an Eong-bbong?

• Eong-bbong: a device to create an S-line by putting it under a skirt or pants.

How would wearing that feel?

“Eong-bbong” is actually quite a good name: it comes from a combination of the “eong” in eongdeongee (엉덩이), or bottom, and “bbong” (뽕), not unlike “boing” in English.

Meanwhile, when Heo-poong asks how wearing that would feel, he means literally or physically, not in the psychological sense of what it would be like to be a woman having her S-line ogled.

• Okay then, let’s try becoming a woman!

Hee (Your guess is as good as mine)

• Done/Changed!

Syoong! (a quick moving sound, in this case through a magic portal used in all the other stories)

• Oh~Oh~~

Cheok! (a grabbing sound?)

What’s this?

• Your bottom is so pretty…

Hweik! (used for something sudden and abrupt)

Jerk!

Yaaargh!

• You bastard, you want to eat rice and beans (prison food) by raping someone?

• Stop!

Beonjjok (Flash)

• Go back to Judge Byeon Hag-do and try asking about what the crime of rape is!

GGudeok, ggdeok (Nod, Nod)

• What? You say you almost got raped??

• According to article 297 of the criminal code, a person who rapes a woman by violence or threat of violence gets a jail term of at least 3 years.

• So in other words, the only people that can be raped are women?

Woman, then Syak! (quick swishing sound?)

If so, what are women?

• Here in article 297, all females are referred to: adult women, teenagers and girls, married women, and unmarried women.

Who doesn’t know that?!! (lit. Where is someone that doesn’t know that?!!)

• A man who dresses as a woman is only a woman on the surface. But for someone to be called [really be] a woman, they need to have the heart, mind, and body of a woman.

The Korean maum (마음) is often translated just as “mind” in English, but if you just ask Koreans where it is located then they’ll usually say the chest, let alone often use it in a “heart” sense. I don’t think there is any real distinction between them in Korean.

• However, what about the case of a man who has had a sex change operation and thinks of himself as a woman?

• Let’s have a look for any precedents.

Chwa-ra-rak~ (the sound of flicking through pages?)

• If Miss “I am a woman” was a man and has a sex change operation…

When I go in I’m a man

When I come out I’m a woman

• …through having her male “important parts” changed to a woman’s, she comes to think of herself as a woman.

Finally, I’ve found myself.

I’ve found where I belong!

• And her personality is completely like a woman’s, and she also completely looks like a woman, and has lived as a woman…

A cockroach!

My master/mistress~

• Then Mr. Evil rapes Miss “I am a woman”, all the while thinking she was born a woman, will he be charged with rape?

Sob sob sob~

You bastard! I will curse you forever!

“Mr Evil” may sound facetious, but actually boolhandang (불한당) is the usual term for a bad person, a little like the bogeyman in English (but more specifically a criminal of some sort). Meanwhile, jooinnim (주인님) is gender neutral, so I don’t know if the caterpillar(?) thinks of Heo-poong as a man or a woman sorry.

• There is a precedent for this.

• The sex chromosomes, internal physiology and external genitalia were all male…

(Before the operation)

• He lived as normal man, but a time came when he wanted to have a sex change operation…

Feelings of confusion about if he was a man or woman.

A hard time doing his military service.

He met his true love, a man.

After the operation.

• After the operation, she had no reproductive ability as a woman, so in the case of average people on the street’s assessments of and attitudes towards her…

• They would decide that she couldn’t be called  a woman.

– Not a woman~

• This way, even if you had had a sex change operation, someone who rapes you would not be charged with rape.

• Of course, being a woman is not a prerequisite for charging the perpetrator with indecent assault under article 298 of the criminal code, yes?

• According to article 298 of the criminal code (indecent assault), if someone assaults another through the threat of violence then he or she can go to jail for a maximum of 10 years or pay a maximum penalty of 15 million won.

In this case, “assault” means not just something which infringes on the victims’ sexual freedom and is in contradiction to normal sexual ethics, but also leaves them with a sense of sexual shame and disgust (Shim Hwae-gee, Official Law Studies (#359), 2004)

• This was also established by the Supreme Court in their judgment on case 96.791 on June 11, 1996.

• Your honor, do you think that Miss “I am a woman” is also included in the definition of woman for the charge of rape to apply?

• What’s that got to do with anything? I just want to do whatever feels good~

Bbok (Bash?)

• Master/Mistress, kill this bastard in self-defence!!

Sure!

Bbak! (Bash?)

• That’s strange?? The contents of the Supreme Court’s judgment on case 96.791 on June 11, 1996 have been changed!!

• Clearly, it was about rape, but here…

Gyaoodoong (??)

• Now it’s about how far one is justified in inflicted violence in self-defense??

Save me~

Oodangtang (Thump! Stamp!)

Update: I completely forgot this article from The Korea Times, which I covered back in February last year (see#17 here):

A provincial court for the first time found a man in his 20s guilty of “raping” a transexual, Wednesday, challenging the current law that defines rape to when a man has forcible sex with a woman born a female. The victim’s legal gender still remains man.

The Busan District Court sentenced the man to three years in prison suspended for four years on charges of raping the 59-year-old transsexual. He was also ordered to participate in 120 hours of community service.

Judge Ko Jong-joo said in the ruling, “The victim has acted like woman since he was born. In 1974, when he turned 24, he underwent a gender reassignment program. He once also lived with a male partner for a decade. Given all of these, he can be seen as female.”

The judge added that although the victim was legally a man, but this did not take into account his sexual identity. “Thus, his sex in legal documents cannot be seen as his `ultimate’ gender,” he said.

The rapist invaded the victim’s home last August and raped her using a blunt weapon. The prosecution initially indicted the man on a “molestation” charge but changed it to “rape” later after considering the victim’s personal history. It sought a five-year prison term, Feb. 11.

Giving the unprecedented ruling, the judge set three criteria to define the precedent ― whether the victim had sex change surgery; how long he/she has lived with appearance of the opposite sex; and if he/she has no problems having sexual relations.

In a similar case in 1996, the Supreme Court did not acknowledge rape charge, citing the victim’s sexual chromosome identity as a male.

I wonder if that 1996 case is the one referred to in the cartoon?