여성주의 관점에서 본 성폭력범죄

Abstract

The Act for Punishment of Sexual Violence Crimes and Protection of

Victims was legislated in 1994 thanks to the Korean women's rights

movement. While women's organizations applauses for the Act, some criminal

law professors including Professor Sang-Don Yi keep a critical standpoint of it

for the Act is a female-biased legislation, violates the defendant's procedural

rights.

This Article begins with a critical review of Professor Yi's reflective

feminism, which is strongly influenced by Jürgen Habermas' theory. In

pointing of Professor Yi's ignoring that Habermas' ideal speech situation

presupposes reflectivity and symmetry conditions, this Article takes position

that Korean women's rights movement further need strategic action as well

as communicative action. Second, it criticizes the marital rape exemption and

the utmost resistance requirement in the Korean rape law. It argues that

marriage must not be viewed as giving a husband the right to coerced

intercourse on demand, and what matters is not whether the victim resisted

but whether the victim's right to sexual autonomy was infringed. Third, this

article examines that the mandatory requirement of victim's complaint for

punishing rapists has not succeeded in achieving its alleged objective: to

respect victim's privacy, rather to serve only to exempt the criminals. Finally,

it firmly stands by the newly-established procedural shield for victims of

sexual violence crimes by the Act for Punishment of Sexual Violence Crimes

and Protection of Victims.