외국인 성범죄DNA 검사 DNA test in Sexual Offense against foreign nationals

이세환 변호사

Attorney at Lawfirm Dongju

Criminal Law Specialist Attorney, Korean Bar Association

Former Court-Appointed Defense Counsel, Supreme Court of Korea

Former Court-Appointed Victim's Counsel, Suwon District Prosecutors' Office

Former Legal Counsel for Investigation-Related Civil Complaints, Suwon Nambu Police Station

Legal Counsel at Korean Dental Association

Legal Advisor at Flick Contents Lab (Company Developing Games to Support Victims of Sexual Crimes)

Lecturer for Counselors at the Seoul Metropolitan Police Agency School Violence Reporting Center (117)

외국인 성범죄DNA 검사 요구에 불응하거나 거부하면 처벌되는 걸까?

Can foreign nationals be punished for refusing DNA test in Sexual Offense?

세줄요약

• 외국인 성범죄 혐의로 조사를 받는 과정에서 경찰로부터 DNA 검사를 요구받을 수 있습니다.

• 외국인 성범죄DNA 검사 요구에 불응하거나 거부했다는 사실만으로 처벌되거나 불이익을 입게 되는 것은 아닙니다.

• 외국인 성범죄 사건은 초기 단계에서 사실관계를 어떻게 정리하느냐에 따라 판단 기준 및 결과가 크게 달라질 수 있습니다.

Hello, this is Lawfirm Dongju.

It is not uncommon for investigative authorities to have difficulty in finding sufficient evidence to conclusively establish the allegations involving sexual offenses against foreign nationals.

In such situations, the police may seek to collect a DNA sample during the investigation.

One common method is a buccal swab, also known as buccal smear. This is a relatively non-invasive sample collection technique for scraping the inside of a mouth to collect cells from the inner cheek lining.

However, undergoing this procedure can be an unsettling experience for foreign nationals. They may worry that consenting to the test could worsen their situation.

As a result, some may refuse to undergo DNA testing procedure. But what happens next?

“I managed to avoid the test for now, but could I face criminal penalties or other disadvantages later?”

If you are facing a similar situation, it is important to understand the potential consequences. Please read on to learn more.

01 How do the police use DNA test results in sexual offense involving foreign nationals?

The police may conduct DNA testing involving a foreign national accused of a sexual offense for purposes listed below.

02 Can a DNA test refusal lead to disadvantages for foreign nationals?

Refusing to undergo DNA testing does not always result in criminal penalties or other adverse consequences.

DNA testing is considered as a non-compulsory investigation, unless a warrant is officially issued.

However, there is one important point to bear in mind. Refusing to undergo DNA testing without a legally justifiable reason may raise suspicions among the investigative authorities.

Simply put, the police may interpret the refusal as a sign that the person has something to hide.

Therefore, it is important to assess the circumstances of the case before deciding how to respond to the DNA test.

03 Can you be convicted if the DNA test gives a positive result?

If the DNA test result appears to support the allegations of a sexual offense, you may feel extremely distressed. You may worry that the case will take a turn for the worse and lead to a Deportation Order.

As a lawyer experienced in sexual offenses involving foreign nationals, I would like to emphasize the fact there may still be grounds to challenge even if the DNA result appears unfavorable to the case.

In a recent rape case, the Supreme Court of Korea overturned the appellate court's judgment and remanded the case for further proceedings.

In its judgment, Supreme Court Decision 2026Do4423, the Supreme Court examined whether the DNA analysis could reliably be used as evidence.

The DNA had been detected on clothing that the complainant had kept for more than two years before submitting it to the authorities. The Court found that the lower court had accepted the DNA evidence without adequately examining whether its reliability had been established.

Therefore, do not assume that the outcome has already been determined even if the DNA test gives a positive result.

04 FAQs about DNA testing in sexual offenses involving foreign nationals

Q1. Can I rest assured if my DNA test result is negative?

A1. No. A negative DNA test result does not necessarily mean that no sexual offense occurred or that you cannot be held criminally liable.

The police may examine various forms of evidence to determine the facts of the case. Depending on the available evidence, a negative result alone may not be sufficient to secure a decision not to prosecute or an acquittal.

Q2. A warrant has been issued for DNA sample collection. Can I still refuse?

A2. If a valid warrant is issued for DNA sample collection, it is best not to refuse to it.

Q3. Will reaching a settlement with the alleged victim resolve the case?

A3. No. Reaching a settlement with the alleged victim does not automatically resolve a sexual offense case or prevent criminal prosecution.

Please keep in mind that sexual offense is still punishable against victim’s will even after reaching a settlement.

05 Have you been asked to undergo DNA testing in a sexual offense?

If the police have asked you to undergo DNA testing in connection with an alleged sexual offense, it is important to assess in advance how the test results may affect your case and prepare an appropriate response.

Waiting until the results become available before considering your legal options may leave you reacting only after potentially unfavorable evidence has already been obtained.

If you have questions or need help understanding your legal position, contact Law Firm Dongju for advice tailored to your circumstances.