<Appellant, Vietnamese woman Ms. A’s position>

Yesterday, I received a phone call from the supervisor of my shelter right after the Supreme Court ruling was made.  And the workers there helped me understand about the ruling.  I truly appreciated it.  I have mentally suffered from the lengthy lawsuit.   I have not slept well, and quite often, I have had nightmares about my childhood and the situation where I was sexually being assaulted in by my father-in-law.

Since my childhood, I have not been loved from my parents, so I believed that getting married my Korean husband would bring a happy life to me.  However, in Korea, I was sexually assaulted by my father-in law and my husband turned away his face.  In the midst of suffering from the sexual assault, I was sued for marriage nullification by him.  I was scared, and could not understand why he did so because he and I was a married couple.  I thought that a spouse should accompany his or her partner sharing pain and suffering together.  But he claimed that I deceived him to get married just for making money and my greed and came into Korea using him.  Because of this, I was enormously shocked.

If I had to go back to Vietnam after being nullified the marriage following the sexual assault, I wouldn’t be able to bear all the pain and distress alone.  Even if I had to, there would be no one who could comfort me or who I could mentally depend on.  I would only be stigmatized.  If it really happens to me, I will not be able to find confidence to live on.  I just don’t know why these kinds of things happened to me.  It was so scary and terrifying.

Yesterday, I suffered from a high fever as I was waiting for the top court decision.  Nonetheless, I couldn’t go see a doctor due to anxiety.   I was just restless, being unable to either stand up or sit down.  I prayed for a fair decision from the court.

The ruling was fair for me who I have lived with fear for the long period of time. Not only did the ruling bring the fairness in a personal sense, but I also expect that the ruling will have influence in a positive way on migrant women who were sexually assaulted in their childhood like me. I hope that the agony of sexual violence from childhood will no longer be agony of the present and future.

The judge of the Supreme Court, the lawyers, the workers of my shelter, Women Migrants Human Rights Center, all the shelters for migrant women across the country, feminist groups and the persons concerned! I appreciate from the bottom of my heart that all of you continued to help in order for the case to bring the fair outcome and help me stay strong. Other than saying that I thank you so much, I can find no word to express my thanks.

If I finally end up winning this case and I will be able to continue to live in Korea, I would like to repay by helping ones who experienced or are experiencing a hardship like me and also by showing living well to all the people who helped me.

Thank you!

February 19, 2016

 

Greatly Welcome! The lower court verdict quashed by the Supreme Court:

the Vietnamese woman case involving ‘the cancellation of marriage due to childbirth experience by child rape’

 

At 2 p.m. on February 18th, 2016, the Supreme Court (the Department Ⅲ, chief Justice: Kim  shin) overturned the original decision which approved the cancellation of marriage and her liability for damages of the cancellation about the Vietnamese woman case involving ‘the cancellation of marriage due to childbirth experience by child rape’ and sent the case back to the collegiate division of the Jeonju District Court.

In reasoning for the decision, the top court said that in the case that a party involved had a pregnancy and childbirth regardless of her intent by crimes such as child rape in the process of her growth, such childbirth experience or how she got pregnant belongs to an individual’s private area and it is an intrinsic part of her honour or privacy.  For this reason, the party involved or a 3rd party cannot be expected to notify the experience according to social norms and it is not culpable not to notify it in the light of a duty of good faith.  Consequently, by setting the precedent that took a view that mere failure to notify childbirth experience does not confirm the reasons for the cancellation of marriage written in Article 816 (3) of the civil code, and as well, the same applies to the international marriage, the ruling demonstrated common sense and legal justice were alive in Korean society.

That a duty to notify is imposed upon the female victim even though the case involves childbirth experience following a child sexual violence is to seriously infringe constitutional rights: personality right and personal information control right, freedom and privacy of personal life.  Besides, this goes against the purpose of both domestic law and international law for the protection of child sexual violence victims.  Fortunately, the Supreme Court ruling of this case corrected the legal misinterpretation of the original verdict.

In addition, marriage cancellation due to childbirth experience prior to marriage has been mainly applied to women only who biologically have the burden of pregnancy and delivery.  However, in a sense that the top court set a new standard in terms of a cause for marriage cancellation due to ‘childbirth experience’ prior to marriage, the ruling is meaningfully significant.

Based on precedents in Korea, it is true that ‘failure of a duty to notify’ itself has been a cause for marriage cancellation.  However, the case of Vietnamese woman Ms. A involves a childbirth experience by the horrific crime, child sexual violence, and if this becomes the reason of marriage cancellation, it will be punishment on the victim of child rape.  Hereby, migrant women.feminist groups continued to strongly protest against it from the beginning.  Nevertheless, the first and second trials at lower courts sided with the husband, making the ruling of the marriage cancellation and the compensation payment to the husband. Support groups for Ms. A appealed to the top court with the joint defence counsel, and as a result, the top court overturned the ruling of the second trial and sent the case back. This is natural outcome since it is unjust for the lower courts to impose culpability upon the victim of child rape about the marriage annulment.

Another point that draws our attention is the fact that Ms. A is a survivor from two times of sexual violence: child rape after kidnapping in Vietnam which resulted in childbirth, and rape by her father-in-law in Korea, destroying her hope to live a new life with the husband.  Despite the fact that the rape by her father-in-law caused her marriage life to be horribly brought to an end, the experience of child rape again caused another suffering, the punishment on the experience.  We could not accept this.

The ruling of the top court is of Vietnam migrant woman Ms. A, but it has a great deal of impact on others.  The reason is that the Supreme Court officially confirmed that when it comes to child birth experience by sexual violence, not by usual way, an individual has a right not to notify.  In a sense that the top court set the new precedent in Korean society, this ruling will be very influential to all women.  We hope that the Jeonju District Court will actively accept the decision of the top court that reflects women’s human rights.

 

 

February 22nd, 2016

21 migrant women.feminist groups in Korea

 

 

<A brief summary of the case>

 

<the year of 2014>

January 25: Receipt of Vietnamese woman Ms. A sexual violence case report by her father-in-law

  • March 11: The first public trial of the sexual violence case
  • March 28: The second public trial of the sexual violence case
  • May 30: Verdict of the sexual violence case

–          The father-in-law (Choi OO), 7- year imprisonment, 80-hour completion of a program for treatment of sexual offenders,10-year  posting his identities as sexual offender

  • June 13: Appealing by the sexual violence offender
  • August 28: Filing for marriage annulment by husband (Kim OO) of victim Ms. A
  • November 05: Dismissal of the claim by the sexual violence offender

<the year of 2014>

June 27: The first trial verdict of marriage annulment lawsuit by husband of victim Ms. A

  • – Marriage annulment, defendant’s (Vietnamese woman Ms. A)8,000,000 won payment to husband in compensation
  • July 23: Appeal of the marriage annulment lawsuit
  • September 18: Women Migrants Human Rights Center of Korea (WMHRC) host, preceding the meeting, [the meeting of legal experts on marriage annulment case due to father-in-law rape and forced marriage experience] and forming a joint defence counsel.
  • September 29: The first argument for the defendant/ group hearing (WMHRC, migrant women shelter council of Korea)
  • October 13: The Second argument for the defendant/group hearing (WMHRC, migrant women shelter council of Korea)

Making one-person relay protest in front of the Jeonju District Court and group hearing in the court, leading by WMHRC and Jeonbook province feminist group council

September 29: Consultation and mental health examination for Ms. A by professor Park Bujin at Myungji University (expertise in child and family phycology treatment)

  • November 5:  Submission of professor Park Bujin’s opinion letter on Ms. A
  • – The gist: urgent necessity of psychological treatment due to both sexual violence case and marriage annulment lawsuit
  • October 31-Nobemver 12:  A signature collecting movement for petition

(2,419 in Total: Korean 1,879 / Non-Koran 540)

  • November 17: The third argument for the defendant, and Press Conference to raise our voice about the unfair verdict of marriage annulment toward the migrant woman, a victim of sexual violence, by migrant women/feminist  groups in Korea
  • December 15: The forth argument for the defendant/group hearing  (WMHRC, migrant women shelter council of Korea)

 

< the year of 2015>

  • January 19: The second trial verdict

–          Marriage annulment , defendant’s (Vietnamese woman Ms.A) 3,000,000 won payment to husband in compensation

  • February 19: Appeal to the Supreme Court of Korea
  • March 5: Opening panel discussion “Childbirth experience by child sexual violence and   marriage annulment: its legal issues and legislative task” (17 feminist/migrant/law groups cosponsor. Hosting: Jin Sunmi-member of parliament, WMHRC, Korea sexual violence relief center)

 

<the year of 2016>

  • February 18:  The verdict of the Supreme Court ‘remand after quashing’