The Supreme Court ruled on the 20th that it is just to impose a heavier sentence for attempted aggravated rape if the victim sustained injuries, even if the crime did not succeed. Some defendants in sexual assault cases argued that they should receive lighter sentences if their attempts at rape resulted in injuries but were ultimately unsuccessful; however, the Supreme Court did not accept this.
On this day, the Supreme Court's en banc panel stated in a majority opinion from 10 justices that "the current legal principle that the crime of attempted aggravated rape under Article 8(1) of the Act on Special Cases Concerning the Punishment of Sexual Violence Crimes (Sexual Violence Punishment Act) is established even if the act resulted in injuries to the victim remains valid."
The court dismissed the appeals filed by individuals A and B, who were indicted for violations of the Sexual Violence Punishment Act (aggravated rape resulting in injury), and upheld the second-instance ruling sentencing them to 5 years and 6 years in prison, respectively.
A and B were accused of attempted aggravated rape resulting in injury after they administered a drink containing the psychoactive drug zolpidem to C on March 28, 2020. Under current law, the charge of attempted aggravated rape resulting in injury is subject to life imprisonment or imprisonment for 10 years or more. The minimum statutory penalty for aggravated rape is 7 years. Attempted aggravated rape resulting in injury is charged against those who cause injury to the victim while attempting to commit rape, imposing a heavier penalty than for rape itself.
A and B appealed after receiving sentences of 6 years and 7 years, respectively, in the first instance. During the second-instance proceedings, A's side submitted a brief arguing that "if attempted aggravated rape did not succeed, it should be subject to reduced penalties." The Criminal Law states that the penalty for an 'attempted crime' (未遂犯) can be reduced compared to that of a 'completed crime' (旣遂犯).
However, the second-instance court stated that "the provision for reducing penalties for attempt applies only when the charge is for attempted aggravated injury, and does not apply to attempted aggravated rape resulting in injury," thus rejecting A's arguments. Nevertheless, the court reduced the penalties for both individuals to 5 years and 6 years in prison because they acknowledged their crimes and expressed remorse, and the victim stated that they did not wish to see the two punished.
The Supreme Court also agreed with the second-instance court's judgment. The court noted that "if a legal reduction were applied to attempted aggravated rape, the basic punishment for aggravated rape resulting in injury and its lower limit would become the same, while the upper limit would become even lower, leading to a reversal in the severity of sentences, which would allow for the possibility of penalty exemption for those who ceased their criminal activities, creating an imbalance."
However, on this day, Justices Seo Kyung-hwan and Kwon Young-jun issued a dissenting opinion, stating that the case should be sent back for retrial. These justices argued that "the illegality of attempted aggravated rape and completed aggravated rape are not the same." They added that "reducing penalties for attempts is fundamentally discretionary, so if the court decides not to apply reductions in cases that require severe penalties, there is no issue of punishment imbalance."