The high profile rape trial of former South Chungcheong Provincial Gov. An Hee-jung, accused of raping his secretary, has sparkled a public outcry after his lawyer made a controversial remarks on who should be recognized as potential victims of sexual violence.

At the center of the controversy is a comment from An’s lawyer that implied that highly educated and independent women -- “unlike those with disabilities or children” -- cannot be a subject of power abuse at work.

The plaintiff, Kim Ji-eun, made her accusation on live TV on March 5, saying that she was raped by An four times while working for him as his secretary from 2017 to February this year.
 

While admitting that he had sexual intercourse with Kim, An, who is married with two children, claims that his relationship with Kim was “romantic” and consensual.

During the trial, which was held Monday at the Seoul Western District Court, An’s lawyer stressed that Kim is not “a child nor a person with disability.”

The lawyer also said that she was an “independent and smart woman” who made her own decisions, including that to join An’s election campaign for free by giving up a stable job as a public servant. She also mentioned that Kim went to one of the most prestigious universities in the country and that has been divorced.

“It would‘ve been impossible for (any superior) to use his or her authority against a woman who is as smart and independent as Kim Ji-eun,” the lawyer said at the court. Kim, the plaintiff, was present during the session.

Women’s rights activists and scholars heavily criticized the remarks, saying not only were they disrespectful to Kim, but they were disrespectful to disabled sexual assault victims and survivors of childhood sexual abuse, as well as those who have a low education background.

“It’s very concerning to see the lawyer making an argument that says physical resistance is the only way for all victims to prove that a rape occurred,” Lee Soo-yeon, a researcher at Korean Women’s Development Institute, told The Korea Herald.

“And by comparing Kim with those who often cannot physically resist --children or those with disabilities -- the lawyer’s subtext is that only certain people experience such sexual violence, and if you are not one of them and somehow became a victim, it’s your fault.  Power takes many different forms, and it can be abused against all sorts of people. Whether Kim was married or able-bodied or not are all irrelevant.”

An official from Korea Women’s Hotline also said An’s lawyer’s remarks were highly problematic, especially its subtext against those with low education background and  disabilities.

“What is she saying really? Is she saying if you are disabled and did not attend a university, you cannot be independent? Is she saying if you area child, you deserve to be abused?” 

Plaintiff Kim has been claiming that she was raped by An in Switzerland and Russia, among other places, while they were on business trips together. 

She says that it was virtually impossible to reject An’s advances due to the power imbalance between the two -- An was a powerful politician and her superior at work -- nor to ever say no any request.

“An would always tell me, ‘Don’t share your opinions, don’t share your thoughts. Live as if you are my shadow,’ Kim said during the TV interview in March.

“I was never able to question him on anything. I always had to obey him.”

However, some legal experts say that unless Kim can somehow prove that she either physically or verbally resisted before or during the assault, it might be hard for the court to recognize that An has indeed violated Article 303 of the Korean Criminal Code -- formally named “sexual intercourse by abuse of occupational authority” -- as he has been charged. 

The article states that a “person who, by means of fraud or by the threat of authority, has sexual intercourse with another with who is under his protection or supervision for his business, employment or other relationship, shall be punished by imprisonment for not more than five years, of a fine not exceeding 15 million won.”

“I think Kim will have to prove that either An said something or did something to threaten her with possible disadvantages should she reject his ‘orders’ of all sorts,” said a lawyer in Seoul on condition of anonymity.

“Just because he was her superior and she worked for him, it does not mean that the court will automatically decide that he abused his authority.”

Women’s rights’ organizations, however, have been claiming that the case is typical of sexual violence against women at the workplace.

Last year, Maryland in the US changed its definition of sexual assault to remove a requirement for physical resistance, to remove the burden to answer the question -- “why didn’t you resist?” -- often placed on victims. 

Chun Jung-ah, a lawyer in Seoul who has defended many victims of sexual violence, the rhetoric used by An‘s lawyer is in fact very common in sexual assualt trials in the country.

“An was not just any superior at work. He was a powerful and highly influential figure,” she told The Korea Herald.

“Currently in South Korea, it is the prosecution’s job to prove the power imbalance between the aggressor and the victim. But in order to prove it, the prosecution has to make the victim prove it for them. It‘s a difficult situation to tackle.”

By Claire Lee (dyc@heraldcorp.com)