What You Need to Know Before Becoming a Sex Offender Under Marital Rape Charges

A spouse's sexual self-determination does not disappear simply because a marital relationship exists. If sexual intercourse was forced against the other party's will through violence or intimidation, rape can be established even between spouses. Conversely, if the reported facts differ from what actually occurred, one should calmly organize the facts and evidence from the time rather than react emotionally.

01Rape Can Be Established Even Between Spouses

Article 297 of the Criminal Act provides that a person who rapes another through violence or intimidation shall be punished by imprisonment for a limited term of not less than three years. The Supreme Court has also held that a lawful spouse is included in the 'person' who is the object of rape, and that a marital relationship does not confer a right to demand forced sexual intercourse.

Therefore, the mere fact that a marital relationship is being maintained, or that the parties had consensual intercourse in the past, does not by itself establish that consent existed on the occasion in question. What matters is the other party's intent at the time of each specific act.

02When Is It Established?

The violence or intimidation referred to in the offense of rape must be of a degree that renders resistance impossible or significantly difficult. Courts do not examine the content and degree of the act in isolation but consider the circumstances and location of the incident, the relationship between the parties, and the surrounding context before and after the event.

The mere fact that a spouse did not actively resist cannot be taken to mean that consent was given. It is necessary to examine in detail how any refusal was expressed at the time, whether coercive circumstances existed, and what was said between the parties.

03Statutory Penalties and Actual Dispositions Must Be Distinguished

The statutory penalty for rape is imprisonment for a limited term of not less than three years, and the provision does not allow for a fine. However, merely being suspected of the offense does not mean that detention will follow automatically or that a three-year sentence is predetermined. Whether detention or indictment occurs, and the final sentence, are determined separately based on the evidence, the specific facts, and the course of the trial.

If a conviction is finalized, ancillary dispositions such as registration of personal information may also become an issue in addition to imprisonment, but the details vary depending on the offense, the sentence rendered, and individual circumstances.

04Statements Are Examined Together With Objective Evidence

In sex offense cases, the reporting party's statement can be important evidence. However, the mere fact that a report was filed, or reliance on one party's statement alone, does not automatically determine the outcome. The specificity, consistency, and plausibility of the statement are examined together with objective circumstances such as messages, call records, CCTV footage, 112 emergency reports, medical records, and statements from people nearby.

05Actions to Avoid After a Complaint Is Filed

One should not repeatedly contact the spouse out of a sense of injustice to demand withdrawal of the complaint, pressure them into an apology or settlement, or attempt to align statements. Such conduct may be interpreted as inducement or pressure and can make the case more difficult.

One should also avoid deleting phone or messenger records, or submitting only edited portions of such content. If contact is necessary, the other party's wishes should be respected, and lawful procedures through an attorney should be considered.

06Materials to Organize Before the Investigation

Record the circumstances before and after the incident in chronological order, and distinguish between facts you recall and mere speculation. Original messages, call records, schedules and payment records, location data, and information on whether CCTV footage exists should be preserved in their original form, as they help confirm the circumstances at the time.

If coercive conduct did in fact occur, it should not be minimized or the responsibility shifted onto the other party. One should accurately determine the facts and seek advice on lawful procedures and response methods that do not undermine the protection of the victim.

07Why an Early Response Matters

Allegations of marital rape are complex matters that require examining the marital relationship, the course of any conflict, and the expressions of intent at the time of the incident together. Before the investigation, one should review the applicable law and evidence, and prepare to avoid creating unfavorable misunderstandings through inaccurate statements or premature contact.

LAWFIRM LEAP reviews the necessary response strategy from the investigation stage onward, based on the specific facts and the evidence secured.

※ This article is intended to provide general legal information and does not guarantee the outcome of any individual case. Please consult an attorney individually regarding specific matters.