Members of the Federation for Revision of Rape Crimes are holding a press conference in front of the National Assembly on the afternoon of September 18, 2019 to urge the revision of the requirements for rape crimes. By Kim Myung-jin, staff reporter, [email protected]
The history of victims of sexual violence in Korean society is not long. In 1990, the reporting rate of sexual violence was only 2.2%. (Korea Criminal Policy Institute, 1990) Unlike other crime victims, victims of sexual violence suffered secondary damage such as suspicion and criticism, rumors, various disadvantages, and human rights violations. Suffer. They are even accused of being accused of innocence or defamation by their opponents or those around them who have been accused of being perpetrators. At the root of this phenomenon, there is a provision for rape (Article 297) of the Criminal Law, which stipulates that “a person who rapes a person through assault or intimidation is subject to imprisonment for three years or more.” Here, assault and intimidation meant the extent to which the victim’s rebellion was made impossible or remarkably difficult. In some cases, the value or object (protection legal interest) to be protected from sexual violence is judged by whether or not there is a’right to sexual self-determination’. However, the courts are still under the influence of the’best agreement’ (the narrowest interpretation of the legal text), which focuses on whether severe assault or intimidation occurred during sexual violence. Therefore, victims are being asked to actively resist in the context of assault or intimidation, and if not, they are branded as’fake victims’. Of the total 1030 cases of rape and similar rape received by 66 sexual violence counseling centers across the country from January to March 2019, 71.4% (735 cases) are cases without the assault or intimidation required by the current law.
Nearly 280,000 cases of sexual violence counseling per year
How many victims of sexual violence are not recognized for their damage is also confirmed in the national statistics on sexual violence crimes. According to the 2019 data of the Ministry of Gender Equality and Family (National Indicators System), 168 sexual violence counseling centers across the country offered 270,162 sexual violence counseling services in 2019 alone. In 2018 alone, there were 32,104 cases of sexual violence filed against the prosecution. (The Supreme Prosecutors’ Office, 2019) It is not clear how many percent of victims of sexual violence consulted with sexual violence counseling offices and whether they filed a complaint with an investigative agency, but the actual damage It can be guessed that there will be far fewer complaints compared to. At the point when the’#Me Too Movement’ in 2018 arose like a revolution and urged a general change in our society, the movement to revise the constitutional requirements of the crime of rape is in full swing again. In March 2019, 208 organizations nationwide (209 as of January 2021) jointly raised the question of what constitutes a crime of rape, namely the meaning of sexual violence and the criteria for judgment. do. The history of the movement to revise the constitutional requirements of the crime of rape is not short. At the time of the 1991 campaign to enact the Special Act on Sexual Violence, the title of Chapter 32 of the Criminal Code was stipulated as’Offenses concerning Jeongjo.’ At that time, rather than raising a question about judging rape by assault or intimidation, he mainly criticized the fact that how pre-modern the concept of’jeongjo’ is and whether it is so-called’jeongjo worth protecting’ is the basis for judging rape crimes. The Special Act on Sexual Violence, enacted in 1994, only lists the provisions of the criminal law without provisions on the basic concept of sexual violence, and the constituent requirements for rape crimes have not been properly discussed. The women’s movement group specifically discussed the constitution of rape crimes in 2005, 10 years after the enactment of the Special Act on Sexual Violence. The’Women’s Human Rights Law Solidarity’ came together with criminal law scholars and activists to come up with an amendment to the criminal law after two years of arduous discussion. The core of this amendment to the criminal law was the establishment of a new punishment rule for’sexual behavior without consent’, the abolition of the theory of violence and intimidation by Choi Hyup, and the abolition of parental crimes. The Criminal Law Amendment Bill of the Women’s Human Rights Law Solidarity was a landmark content that shook the criminal law system related to sexual violence. Nevertheless, this amendment to the criminal law gives important implications for the study of laws related to sexual violence in the future, and serves as a reference frame for the current movement to amend the constitutional requirements for rape. The’Investigation and Tribunal Citizens’ Activities of the National Council on Sexual Violence Counseling, which started in 2004, focused on’secondary damage’ in criminal justice procedures. Each counselor in the country directly supports victims, monitors the investigation and trial process, recommends stepping stones and obstacles for gender equality for the year, and selects and announces them after reviewing them by the’Investigation and Trial Citizens’ Monitoring Team’. These are examples that touch interpretation. In addition to this, organizations have continued to promote’the Supreme Court case-changing movement to promote sexual violence’ and the’First Person’ movement to assist victims of sexual violence trials. After the’#Me Too Movement’, the National Assembly in their twenties quickly proposed 150 bills related to sexual violence, and some of the bills have passed the National Assembly and are being implemented. It’s good to see, but we haven’t been able to pinpoint fundamental issues, such as many of the bills remaining at the level of strengthening the sentence. Ten revised bills related to the constitution of rape crimes were proposed from March 2018 to June 2019, but were pushed behind the scenes due to a confrontation between the opposition parties over the amendment to the election law and the High-ranking Officials Crime Investigations Act. Although the bill to amend the rape crime was a’gift’ and strict’request’ brought by the Me Too Movement, none of the lawmakers who initiated it actively did any further activities to pass the bill. The Ministry of Justice, which is the main ministry in charge, submitted its opinions to the Legislative and Judicial Committee of the National Assembly with premature opinion and the court administration with a deliberate opinion. It served as an excuse to avoid handling the bill, saying it was a matter that needed time. Eventually, all of these bills were automatically abolished due to the expiration of the 20th National Assembly session. Two bills have been proposed in the 21st National Assembly so far. Rep. Hae-ryeon Paik’s representative bill changed the’assault and threats’ in Article 297 of the Criminal Code to “contrary to the intention of the other party,” and the bill representatively initiated by Rep. The content of Article 297 was also corrected as’without consent from the other party’.
On August 12, 2020, Justice Party lawmaker Ryu Ho-jeong held a press conference at the National Assembly Communication Hall in the afternoon, explaining the proposal for amendment to the Criminal Law, including the establishment of a new crime of rape without consent. Senior Reporter Kim Gyeong-ho [email protected]
Controversy over anachronistic terms
Currently, in the National Assembly and the media, the provisions related to’consent or not’ in the constitution requirements for rape crimes are mainly named as’non-consent adultery.’ However, the dictionary meaning of’adultery’ is’a married person has sex with the opposite sex rather than a spouse’, and the dictionary meaning of’adultery’ is’non-consent adultery’ in a society commonly used as’to enter into sexual relations’. In terms of terms, it implies the problem of not being able to capture the characteristics of sexual violence. In particular, adultery (姦淫), which is a Chinese character, employs liver (姦), which means adultery or wickedness, which is also a misogynistic Chinese character written by stacking women three times. Therefore, terms with the wrong meaning should be discarded. It is pointed out that there is a lot of controversy about judging rape as’consent or not’ rather than assault or intimidation in terms of guaranteeing the defendant’s right to defend. “It is an irrational result that the punishment of a criminal offender depends entirely on the will of the victim” (Lee Young-ran, 1994), or “It is a crime under the criminal law that has clarity as an essential element because its behavior is diverse and its appearance is unclear. There is a criticism that it is difficult” (Seobohak, 1998). However, the court has already established an objective standard to judge according to the intention of the internal review. “The victim’s consent to the act made against the victim is determined by comprehensive consideration of various circumstances such as the history and aspect of the act, the age of the victim, and the circumstances at the time of the crime. The direction suggested by the case law (Supreme Court, 2019 Decision 3341) is already opening up the possibility of change, based on whether sexual freedom or sexual self-determination rights have been violated. There were no assaults, threats, or force, but there are concerns that the punishment of a crime for sexual intercourse without consent would lead to the harm of excessive criminalization. In other words, it is pointed out that “the fact that the criminal law must be mobilized unconditionally to protect the victims may be a product of the notion of patriarchalism, which is the’enemy’ of feminism” (Cho Kook, 2003). However, as clearly demonstrated in the Me Too Movement, judging the crime of rape as’consent or not’ is a question about the area that cannot be punished by the current law on rape alone, and women who have experienced rape are not recognized by the law. It is an attempt to newly incorporate their unsuccessful experiences into the law, and it will enable a more balanced interpretation of the law by shifting the criteria for judgment of rape from men to women and from perpetrators to victims” (Yoo-Jung Lee, 2007). In addition, this disagreement must be achieved in harmony with the protection legal interests of sexual self-determination, minimization of secondary damage to victims, and consideration of legislation conforming to the principles and systems of criminal law (Da-hye Jang and Kyung-Hwan Lee, 2018). As a result of querying the opinions of 48 experts, including police, professors, prosecutors, judges, lawyers, and NGO activists with more than 10 years of experience in each field at the Korea Criminal Policy Institute, 54.2% of the respondents were’tangible power of assault and intimidation. The (physical force that causes physical pain) requirement must be removed and replaced with a disagreement requirement.’ (Dahye Jang, Youngoh Hong, and Hyunsuk Kim, 2018) The recent Me Too Movement is an important opportunity for discussions on criminal law reform, and the criminal law is revised immediately. It is difficult to say that this is the basis to be done, and in the case of the UK, there is a case of revising the Sex Crimes Act in 2003 to reflect feminist demands over 30 years from the amendment of the criminal law after 50 years (Kim Han-gyun, 2018). It is a claim that is insensitive to the reality that 71.4% of rape victims at the counseling site are victims without assault or threat. In addition, this shows that the voices of women and various movements have been overlooked for 30 years since the 1991 campaign to enact the Special Act on Sexual Violence. Judging rape crimes as’consent’ is also a great challenge to our society in the reality that victims are being accused of innocence even if they judge rape crimes based on violence and threats. In fact, there are voices saying, “Should I receive a confirmation of consent at each stage of sexual intercourse” and “Should I record?”. However, it is a problem to first point out the perpetrator-centered view or the’rape myth’ in Korean society that treats victims’ disagreement as’naesong’ (Juseong Yoo, 2016).
UN also recommends “Amendment to Article 297 of the Criminal Code”
Looking back at the process of enacting and revising laws related to sexual violence, no change has come by itself. Every single law could be made possible by the courage of numerous victims and the solidarity of women’s movement groups. This revision of the constitutional requirements of’rape crimes’, that is, the’breaking of the strictest agreement’ movement, no longer requires victims to prove that there was violence or intimidation at the time of the victim, but that the perpetrators should be asked if they had clear consent from the victims. It is a paradigm shift. Changing the constitution requirement of rape crime from’assault/blackmail to consent’ is also a reflection on how the’rationality’ or’objectivity’ of the law formed from the male-centered view of the patriarchal society excluded the victim’s experience and voice. Do. One of the tasks posed by the Me Too Movement is to fundamentally reflect on the criminal law system governing sexual violence and to move toward removing the bias of gender power. (Lee Ho-joong, 2019) Therefore, the revision of the requirements for rape crime responds to the Me Too movement. will be. The countless moments of emotion we are experiencing in the women’s movement, the Me Too Movement, make us realize how powerful, beautiful, and empowering the power of solidarity is. Now is the time to have a’sex sensibility’ that respects the will of the other person in daily life, achieve legalization that changes the constitution of rape crimes, and change our social codification culture. The UN Committee on the Elimination of Discrimination against Women (2018) also recommended that the Korean government revise the requirements for rape crimes from assault and blackmail to consent or not. Fortunately, our society took a step further with a forward-looking ruling that the court issued in 2019 on the’power’ of the case of sexual violence by the former governor of Chungnam Province, the starting point of the Me Too movement. However, the violent sexual violence case of the former mayor of Busan and the mayor of Seoul that continued in 2020 shows how slow the real change is. In that sense, the women’s movement continues to reflect seriously, explore, challenge, and solidarity on how the current constitution of the crime of rape specifically infringes on the rights of victims of sexual violence and threatens women’s daily lives, and how to set the direction of the movement afterwards. I will go. Lee Mi-kyung, director and co-author of the Korean Sexual Violence Counseling Center