性暴力犯罪의 被害者保護에 관한 硏究

Abstract

This essay is to examine the problems of gender in the korean criminal law system. There are many gender-related problems in this area. In Korea, there are established legal regulations concerning, for example, sexual harassment, rape, sexual assaults in the domestic relationship, adultery, abortion, pornography, prostitution and so on. But the basic conception on which these regulations are based is not one and the same, but heterogeneous and even contradictory. While formerly the de-criminalization movement based on legal liberalism asserted that some immoral behavior done between the consenting adults not be treated as crime, feminist movement reversed this liberal trends and insisted that some behaviors which were not conceived as crimes should be treated as crimes(for example: domestic violence) and that must be enacted by the legislature. Based on the feminist conception of crime, the korean legislature enacted several acts against domestic violence and sexual assault. In this paper the author examines these gender-related criminal behaviors and the conceptions of regulating those kind of deeds and also the acts enacted against gender-related violence. The author, taking feminist point of view seriously, asserts that some behavior that, even thought formerly not conceived as crime, has harm to the victims, should be treated as crime, but some behaviors that are only morally wrong but has no harm to others should not be treated as crime(i. e. prostitution between the consenting adults). Rape myths" that abound in society are often adopted by criminal process. Even though they are untrue and are overwhelmingly refuted by the data, they continue to play an important role in criminal process. As a result, women who "cry rape" are not believed. Even women who eschew the cry and calmly report sexual violence are not believed (because they don't behave like real victims). Women are disbelieved because they delay reporting rape. Those who report promptly are suspected of malice or delusion. It may be said that rape is the only crime which involves a role reversal between the accused and the accuser, thereby placing the victim on trial. While undermining the credibility of the victim is a common tactic of defense lawyers in a variety of criminal cases, it is more prevalent in rape trials. It is necessary to protect rape victims from being victimized in the criminal process. The Act for Punishment of Sexual Assault Crimes and Protection Victims made a significant advancement for the protection of rape victims. However, there are still necessary more actions to take. Irrelevant and repetitive questioning of victims should be prohibited ; new technologies including videotaping and CCTV should be adopted in the questioning the victims ; Counsels should be provided to the victims ; and the admission of evidence concerning the prior sexual conduct of the victims should be restricted. Since criminal law was enacted in 1953, status of women in Korean society have been dramatically changed, greatly improved compared to the past. As a result of enactment of statute preventing sexual assault and domestic violence, legal protection for women has been increased to a greater degree. These efforts, however, generate difficulty of resulting in changes of public consciousness and awareness because they cannot be preventive measures, but rather, reaction to the seriousness of crimes and invasion of women's right. For five decades since the enactment, the system of criminal law itself has not been changed and public awareness of women's right has not been improved noticeably, because we, as a society, have neglected the importance of need for protecting women. Therefore, it is inevitable for us to acknowledge women's societal status and roles and protect them in accordance with public awareness. Moreover, in order to establish adequate measures for crime prevention to protect women in particular, it is necessary for our society to reassure the importance of women's rights and study the special statutes enacted for the purpose of safeguard for women. In this thesis, I would like to discuss any regulations and statutes related to women by each subject ; parricide, infant murder, abortion, rape, prostitution, sexual assault. There are two main categories, crimes in which women are more likely to commit and crimes in which women are victims. Such recognition of these categories is meaningful in a sense that it helps studying women-focused crimes and extended-crime for both sex based on their characteristics. These concepts have not been developed as an interpretative and analytical theory in general. Women-focused crimes involves a significant concept in which when both male and female criminals commit a same crime, women are likely to receive special treatment of more lenient punishment and men can be excused from being a subject of the crime. Extended-crime for both sex has a meaning of broadening the boundaries of regulation for women-related crimes, such as rape, by attempting to protect both men and women as victims, instead of limiting them to protect women only. For example, for the categories of infant murder and abortion, there must be a extension of boundaries for such crimes for protection of women's right by avoiding harshness of punishment and reducing the degree of it or by giving them a choice to decide for themselves. In addition, for rape and prostitution, law should not be limited to protect women only, but it should be generalized by changing a term to apply it to both male and female victims. Hence, such role changes in criminal law due to overly protecting women should be studied more in depth with careful consideration.