On September 24, 2019, members of the Federation for Revision of Rape Crimes participated by 208 women’s rights organizations across the country, including the Korean Women’s Association, the Korean Sexual Violence Consultation Center, and the Korean Women’s Telephone Service, in front of the National Assembly, discussing the requirements for rape crimes in’Assault and Blackmail’. It is demanding that it be revised to’Consent or Not’. By Kim Myung-jin, staff reporter
▶ As seen in the controversy over the release of Cho Doo-soon, Korean society seems to be responding hard to sexual violence, but the nature of the issue of sexual violence is not very interested. Although new interpretations are coming out in the courts, the constitution of the crime of rape in Article 297 of the Criminal Code is solid as’assault and intimidation’. In order to find out the problem and find a solution, a series of contributions from the’Congress for Revision of Rape Crimes’ are finally published.
According to the current criminal law, in order for rape crime to be established, there must be violence or threats. Among them, there is a need for assault and intimidation, such as to suppress the rebellion of the victim or make it remarkably difficult, and this is the famous standard of’the best agreement’. The definition of the concept may seem simple, but it is very difficult to judge in an actual case. Of the following, how many cases were recognized as assault or intimidation by Choi Hyeop?
First of all, whether to agree or not
① He hugged the victim tightly and pressed the victim’s back with his chest so that he could not move ② Suddenly hugged the victim with both hands, laid him down, and hit him with a fist once in the face ③ He announced that he would expose the facts of sex to the local people and husband ④ Victim He pulled him down and pressed his neck and said,’If you yell, I will bring the knife and kill you.’ ⑤Sit the victim face-to-face on his knees and hold the victim’s arms strongly with both hands ⑥ Press the victim’s body with his hands and body in the car I took off my clothes. The court recognized ①⑤⑥ as an assault or intimidation of the Choi Nation, and ②③④ deemed it not enough to repress or make remarkably difficult the victim’s rebellion. I bet, it will be difficult to get the correct answer even if you are a legal expert unless you know exactly the relevant precedents. In the actual judgment process, the overall situation is considered comprehensively along with the contents presented above, but it is not easy to judge the extent of the assault or intimidation. In such cases, it is necessary to revisit the exact definition of the concept and the criteria for judgment. Looking again, Choi Hyeop’s assault and intimidation means’assault and intimidation to the extent that the victim’s rebellion is suppressed or made remarkably difficult.’ The criterion for judgment is set around’the victim’s rebellion’. Since it is not classified as to what kind of behavior in reality suppresses or makes rebellion remarkably difficult, it is a structure that has no choice but to examine whether the victim actually intensified the rebellion and whether the rebellion was suppressed and suffered damage. I think the victim could have resisted, but what if he didn’t? Innocent. This is the reason why the criticism of Choi Hyeop-eui-seop-seol was constant. These include criticism of demanding rebellion at the cost of life from victims, as in the past notion of chastity, and criticism that the sexual violence case proceeds not as a trial for the perpetrator, but as a trial for the victim, which is determined by how much the victim rebelled. The courts are also conscious of this point of view and apply comprehensive judgment standards, and have made forward-looking rulings, such as that the victim should not be judged that he has not reached the assault or intimidation solely because he did not rebel with all his might (Supreme Court In 2005, 3071), the opinion of the supreme consultation is still maintained, and the point that the core of the judgment criteria is linked to the’rebellion of the victim’ has not changed. The demand for amendment of the law toward punishing rape crimes based on consent or not is intended to match the definition and judgment criteria of sexual violence to the nature of sexual violence. The essence of sexual violence lies in the violation of the right to sexual self-determination, which in turn results in the victim’s consent or not. However, in the current sexual violence legislation, in which the supreme negotiating theory is applied, the victim’s will may be pushed back to incidental circumstances unrelated to the judgment of sexual violence. This is because even if it is clear that the victim disagrees and coercion has been exercised, innocence can be found on the grounds that the degree of violence or intimidation was not “to the extent that the victim’s rebellion was suppressed or made remarkably difficult”. The current legislation, which focuses on resistance and violence, makes it difficult to judge whether one’s victims are sexual violence. The victim may be hesitant to report, or the misconception that it is okay to have sex with the victim somewhat ignoring the victim’s intentions, as long as the victim is not hitting or threatening a lot. Therefore, the demand for amendment of rape crimes, centered on consent, is not just a slogan to widen the scope of punishment, it is a claim on the essence of changing the basic perception of sexual violence. Even if consent is placed at the center of the criteria for judging sexual violence, whether there were compulsory factors such as assault, intimidation, or force is still used as an important basis for judging the existence of consent. However, the guilt of sexual violence will not be divided based on non-essential content such as whether a line is drawn somewhere in the continuous spectrum of the degree of coercion as in the present, and whether or not the line has been crossed.
On August 12th, 2020, Justice Party lawmaker Ryu Ho-jeong posted a proposal for amendment to the Criminal Law, which contained the new “crime of unconsent rape”. On the 10th of that month, Rep. Ryu drew attention by attaching 100 yellow large-sized papers all over the National Assembly Halls. Provided by Ryu Ho-jung’s office
Sexual violence innocence rate, twice that of general crimes
Since the Supreme Court ruled that sexual violence cases should be examined with gender sensitivity, criticism has been raised that the principle of presumption of guilt, in which the presumption of innocence is reversed, is applied to cases of sexual violence. However, the Gender Sensibility Judgment came out and the Me Too movement was actively progressing. Looking only at the period after 2018, it is easy to see that cases of sexual violence are still very difficult to convict. The prosecution’s unsuspected disposition rate for rape cases was 47.85% on average from 2018 to 2019, much higher than the 22.65% unsuspected disposition rate for general criminal offenders (Crime Analysis by Supreme Prosecutors’ Office). Even if you look at the innocence rate of the first trial in the court, the innocence rate for rape and harassment crimes averaged 3.85% in 2018-2019, higher than the innocence rate for general criminal offenses at 2.6% (Judicial Yearbook of the Supreme Court Administration Office). In the case of the innocence rate, the overall situation is very low, so the difference may not seem large, but in the case of rape and harassment than the general criminal offenders. 48% more likely to be innocentEven more meaningfully, even when comparing the gender sensitivity verdict before and after the Me Too movement, the innocence rate for rape and harassment was significantly higher than that of general criminal offenders (3.49% in 2017 → 4.02% in 2019, general criminal offenses). Is 2.5% in 2017 → 2.53% in 2019). The situation is remarkably different from the perception of the general public, who mainly encounters problems in some news. If the criterion for rape crime is revised based on consent, the guilty conviction will not happen if the victim asserts that they did not agree. The fact that there was no consent of the victim must still be proved by the prosecutor, and the principle of presumption of innocence is applied to the accused, and the existence of consent will be judged by combining all circumstances, such as the relationship between the perpetrator and the victim, and the circumstances at the time and after the act. to be.
Innocent punishment 5.9%… 94% are’secondary damage’
For a similar purpose, there is also no reasonable ground for concern that if a rape crime is revised on the basis of consent or not, innocent will increase. If the rape crime is revised, you can think that innocence has become easier because you do not need to argue about violence or threats, and you can argue that you have no consent, but △Why there was no coercive force in sexual intercourse without consent △Why couldn’t even try to resist You have to explain whether you did it, but it is not easy to explain that context naturally unless you are a person who has actually experienced the damage. From the point of view of an innocent person, it may be more convenient to lie about being beaten by the perpetrator or forcefully pressed and stripped of clothes rather than explaining the complicated context in a situation where you are lying anyway. Innocent cases are mainly investigated by people who are accused as perpetrators against the victims. In the first case, in the case of sexual violence crimes, the notion that many innocents to fake sexual violence damages are not supported by statistics. According to a study conducted by the Korea Women’s Policy Institute in 2019, the total number of sexual assault crimes in 2017-2018 was 8,677, and only 341 (0.42%) were convicted of innocence during the same period. It is said that the proportion of innocent among sexual assault cases is very small. According to this study, only 5.9% of alleged sexual assault offenders accused a person who alleged victims of sexual violence were convicted, and 94.1% were not punished. Even after committing a sexual violence crime, there are far more cases where victims are accused of innocence and inflict secondary damage. At first glance, the innocence of a sexual violence crime may seem easy, but in reality, in addition to the possibility of being punished as an innocence, there are double restrictions that prevent innocence such as negative standards, stigma, and secondary damage in our society for victims of sexual violence. Sexual violence innocence doesn’t happen easily. In addition, even if there is a problem of innocence, it should be approached as a solution to the innocence itself, such as strengthening punishment, and it is not desirable to try to solve it by completely opposing the introduction of rape crimes based on consent or not. The United Nations Agency for the Improvement of the Status of Women (DAW) and the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) recommended that rape crimes be revised based on consent, not assault or intimidation, and the European Union also raped sexual acts without consent through the Istanbul Convention. Legislative action was taken as defined as sexual violence. Accordingly, Britain, Germany, Sweden, Belgium, Austria, etc. revised the law, and some states of the United States, Canada, and Australia, among non-European countries, stipulate rape crimes based on consent criteria. It may not always be a good idea to imitate foreign laws, but it is important to consider that various international organizations consistently recommend and urge the revision of rape crimes based on consent criteria, and that various countries are actually amending and implementing laws. Need to be. It is an irreversible trend and the right direction to define rape crimes based on consent or not. Now is the time to focus the discussion on sexual violence in our society on how to grasp and respect victim consent. Kyung Hwan Lee Attorney
