Joohyun Park
In defining rape, there are two predominant legal frameworks across the globe: one based on coercion and the other on consent. The coercion-based model considers physical force, attack, and/or threat as necessary elements to determine the existence of the crime. Italy, France, and some US states such as Michigan follow this model. In contrast, the consent-based model defines rape as an act committed without the victim’s consent. This model is supported by the European Court of Human Rights and the Committee on the Elimination of Discrimination against Women, and is used in England, Sweden, and Canada.
Different legal models entail different assumptions about victims and how crimes of sexual violence should be punished. Critics of the coercion-based model have pointed out the underlying assumption of a perpetrator’s coercion and a victim’s resistance in rape cases. This model establishes rape based on the degree of the victim’s resistance and the resulting injuries. These critics advocate for a consent-based model that does not predicate a crime on the victim’s injuries. On the other hand, others are concerned that consent-based models fail to reflect coercive or imbalanced power dynamics, suggesting that even seemingly clear consent might obscure exploitative relationships, such as grooming. Instead, they call for an expanded interpretation of coercion to encapsulate a wider spectrum of scenarios.
To delve into the implications of a coercion-based model and victims’ injuries, I examine cases from South Korea. South Korea serves as an example of a rape law model where the standard of coercion has been broadened and where movements for a consent-based model have nevertheless persisted for decades. South Korean feminist organizations have been pushing for legal revisions towards a consent-based model to more accurately reflect reality in court, leading me to ask: What is the inherent problem with the coercion-based model that cannot be overcome by incorporating broader standards?
My quantitative analysis confirmed the expected relationship between victims’ injuries and court decisions. A comparison of court cases shows that in strictly defined coercion cases, victims’ injuries matter more than in broadly defined cases. As the court adopts a broader definition of coercion, the impact of victims’ physical and/or psychological injuries on prison sentences decreases, which is a step forward. However, the impact remains significant across all levels of coercion cases under a coercion-based model.
My qualitative analysis traces the implications of victims’ injuries for criminal punishment. Even when a defendant uses minimal force, the existence (or lack thereof) of a victims’ injuries influences court decisions. For example, minor injuries, vaginal injuries only, or the victim’s sturdy body figure were frequently mentioned as legal justifications to mitigate the sentence. Additionally, judges frequently assume the psychological impact on the victims, including feelings of shame and fear. The display of shame is often utilized to support the threat posed by the perpetrator and to establish the credibility of the victims.
At the center of my findings lies the understanding of victims’ experiences of violence through their injuries. Through the lens of victims’ injuries, we can better grasp their pain and experiences and find ways to provide support. However, when injuries become a consistent criterion for defining groups or individuals as victims, a different narrative arises: it ties anticipated sexual harm to certain bodies and sexual practices, often those that are feminized in heterosexual, homosexual, or transgender contexts. For example, when cases of sexual violence highlight the injured status of female victims, the association turns into an expectation that female bodies are weak and passive. This portrayal excludes the diverse range of victims’ agentic experiences such as grief, anger, and disgust, as exemplified in the opening case.
This research aimed to reconsider victims’ injuries as a source of asserting their agency, as opposed to completely dismissing it. My paper shows that the current model of coercion-based rape, which casts victims as necessarily injured and ashamed, limits the political potential for victims’ agency. In order to counter the courts’ expectation of victims’ injuries and shame under the coercion-based model, I argue for a shift to a model centered on consent. Such a model would also help promote broader discussions about sexual consent throughout South Korean society.
Gender & Society 