아동에 대한 성추행 사건의 수사와 재판의 실태와 개선방안-2004년 3월 시행예정인 개정성폭력법에 관한 논평을 중심으로-

The Reality of Investigation and Trial of Child Sexual Abuse Case in Korea：The Critical Review of the Revised Korean Sexual Assault Prevention Law of 2003

Since later part of 1990s, child sexual abuse became a serious and prevalent problem in our society. So many surveys reveal that large part of the population of Korea has experienced some form of childhood sexual abuse. Abuse of this nature, in addition to posing an immediate threat to the physical well-being of the child, can have debilitating psychological effects that last for years, or even for a lifetime. In 1990s Korean legislature has acted to stiffen penalties for child sex abuse. But the effectiveness of stiffer penalties is limited by strikingly low conviction rates for alleged child sex abusers. Many cases go unreported, and those that are reported prove exceptionally difficult to prosecute. The child is usually the only witness to the crime. He or she may be found incompetent to testify, or upon testifying may be unable to recall crucial details. Children are easily confused by cross-examination. They are reluctant witnesses and sometimes recant, disclaiming prior testimony to absolve an assailant who is often a relative or family friend. Faced with growing public awareness of the difficulties of prosecuting child sex abuse cases, Korean legislature has acted to strengthen the prosecutor's hand while easing the burden that the judicial system places on the child victim. Revised Korean Sexual Assault Prevention Law of 2003 has eased various rules of procedure and evidence. The legislative innovation of Korean Sexual Assault Prevention Law of 2003, child hearsay statute and videotaping statute, has been most prominent. The hearsay statute created a special exception to the hearsay rule for statements made by child victims of sex abuse. The videotaping statute allow the child's testimony to be preserved on videotape for presentation at trial, thus sparing the child repeated appearances in court and permitting the child to withdraw quickly from the judicial process. Both hearsay and videotaping statutes may deprive defendants of the opportunity to confront their accusers face to face before a judge. Arguably such statutes violate the sixth amendment's guarantee that "in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him." In Part Ⅰ and Part Ⅱ the author examined the conventional reality of investigation and trial of child sexual abuse cases before Revised Korean Sexual Assault Prevention Law of 2003. In Part Ⅲ the author examined the hearsay and videotaping statutes of Korean Sexual Assault Prevention Law of 2003. As argued in Part Ⅲ, current hearsay and videotaping statutes of Revised Korean Sexual Assault Prevention Law of 2003 is not enough to meet children's urgent needs. Moreover, the statutes provide the trial judge too little guidance in weighing the sufficiency of evidence offered to corroborate the child's out-of-court statements. The videotaping statutes grant the prosecutor advantages and options not enjoyed in other trials and fail to set any standards regarding the technical quality of the videotapes. These problems, however, are not intractable. An integrated legislative scheme like the one proposed in Part IV could remedy the shortcomings of present hearsay and videotaping statutes while achieving those statutes' important aims : buttressing the state's case in child sex abuse prosecutions and protecting the child from further victimization, this time by the judicial process.