범죄구성요건으로서의 스텔싱

Abstract

Stealthing is the act of removing or tampering with contraceptives, such as condoms, during sex without the partner’s knowledge. It has been discussed relatively recently, and some countries punish it. In Korea, it has been publicized in the news, and voices calling for legislation are increasing, and in 2021, a ruling was issued that recognized such a behavior as a civil damage. However, there has not been much discussion since then, which is understandable considering that criminal legislation against stealthing has not been very active around the world. However, the more fundamental question in adopting the criminal legislation against stealthing is to which criminal constituents stealthing should be categorized. Other countries generally do not directly criminalize stealthing per se, but instead punish it as "sex against one's will," and there is a lot of controversy over how stealthing constitutes non-consensual sex. Germany criminalizes stealthing as separate from consensual sex, and Canada is similar. However, in Korea, where non-consensual sex is not criminalized, stealthing may be considered deception or fraud. In the case of deception, there are already limited penalties, and the Supreme Court has recently expanded the scope of recognition of deception. However, such recognition is usually predicated on vulnerable targets such as minors, and in Korea, where the crime of rape by deception, has already been abolished, the full revival of rape by deception may revive the old debate. Therefore, it is possible to view stealthing as rape by fraud, and since fraud is recognized in a narrower scope than deception, it may be a reasonable alternative in Korea, where the crime of non-consensual sex does not exist.