‘성인지 감수성’에 관해 판시한 대법원의 성범죄 형사판결에 관한 소고

Review on the Supreme Court’s decision about ‘Gender Sensitivity’ : Supreme Court 2018. 10. 25. 2018do7709 decision

This article dealt with problems or hazards arising from the usage of the concept ‘Gender Sensitivity’ to the criminal case’s fact-finding and reasoning. First, if Supreme Court uses that concept in order to overturn the trial-court’s fact-finding under the name of violating the principle of free evaluation of evidence, it can infringe on the principle of the court-oriented trial system, which means the fact-finding should be done in the trial-court which conducts the discovery and examines the evidence, which Supreme Court can’t do generally. Second, the question arises whether there, in the case concerned, was a battery or threat which could constitute that of the rape. Third, the concept ‘Gender Sensitivity’ Supreme Court uses could be contradicted with the concept of ‘presumption of innocence’, further with that of ‘in dubio pro reo’, if it is used to induce the guilt of the defendant. Fourth, the concept ‘Gender Sensitivity’ is not obvious, which means it is too ambiguous to apply appropriately to the assessment of the weight of the evidence in the litigations. Fifth, the concept Supreme Court uses seems to ignore that the gender is divided not into the polarized binary but into the spectrum, because it seems that Supreme Court, despite of using the word ‘Gender’, rather focuses on and pays attention to the biological sex. Sixth, the decision neglects the issue of mistake-of-fact, which stems from the imperfection of the human beings. Seventh, the possibility of the motive to tell a lie about the reason of the intercourse seems not to be considered in the Supreme Court’s decision. Eighth, this decision can be misunderstood to underestimate the autonomy of the female on their ability in decision-makings, in other words, self-determinations. Ninth, the tendency to find the facts based on the statements of one party can drive the other party to have the motive to produce the inculpatory evidence, which is collected by the abnormal means like recording the sounds before, during, and after the intercourse. Tenth, the trial-courts can be obsessed with the implicit pressure that the evidentiary value of the victim’s statements should be assessed to outweigh that of the defendant. Eleventh, the possibility for the victim to be compensated for the injury in the civil case, even though the defendant is not punished in the criminal case, can be overlooked.