Supreme Court Decision 2009Do2576

The Defendant was a part-time elementary school teacher who conducted health examinations for students. After checking the pulse of a student, the Defendant placed his hands inside the student’s clothes and touched her breasts. The lower court did not find this conduct to constitute “disgraceful conduct” against minors under thirteen years of age as provided by Article 8-2 (5) of the Act on the Punishment of Sexual Crimes and Protection of Victims, holding that the Defendant did not possess a subjective motive “to stimulate, stir up, and satisfy his sexual desires.” The Supreme Court reversed and remanded, holding that the subjective motive of the offender is not relevant in determining the crime of disgraceful conduct against minors. Instead, the Defendant’s conduct constitutes disgraceful conduct if his actions make an ordinary average person, in the victim’s same position, objectively feel sexual shame or offense. Additionally, the actions must be contrary to sound sexual moral norms, and thereby must have a negative effect on the victim’s mental growth. Finding that the lower court made an error in applying the law, the Court remanded the case to the Seoul High Court.