성폭력 범죄의 신빙성 판단기준인 성인지 감수성에 대한 고찰

Abstract

When sexual violence crimes are committed in a private space, there is little physical evidence, and it is not easy to prove the perpetrator's crime as the victim is the only witness. If the arguments of the two parties are different, there is no choice but to worry about whose statement to give faith. In sexual violence crimes, gender sensitivity appears as a criterion for judging the credibility of victim statements. Gender sensitivity is a broad ability to recognize gender discrimination and gender inequality, a concept that has recently emerged to improve gender-related perceptions such as gender equality and gender awareness. Originally, gender sensitivity was a cognitive concept that was not related to the legal application of criminal cases and should be applied to policies or systems. In 2018, the Supreme Court applied for the first time in sexual harassment cases. As the Supreme Court cites this in criminal proceedings, it appears to be important in its meaning under criminal law. However, gender sensitivity is a concept that requires judgment from the perspective of an average victim, and what it means is ambiguous. In addition, there is a concern that objective and detailed arguments may be omitted during the trial process by hastily generalizing the victim's statements. It is also very dangerous because it seems to be implicitly understood to put more credibility on the victim's statement. In addition, it may be quite unreasonable to judge guilt or innocence based on the victim's statement. This is no different from estimating facts based on the victim's statement, so there is also a risk of a public opinion trial. Gender sensitivity should be satisfied that the victim cannot be said to be not a victim just because he/she acted uncharacteristically. In other words, gender sensitivity cannot be the only criterion for solving sexual violence crimes. This is the same as victimhood in a narrow sense. In other words, gender sensitivity and victimhood should act as passive elements that cannot be said to be victims just because they do or do not do such actions. Therefore, gender sensitivity or victimhood cannot be the only criterion for judging the credibility of victim statements. If only statements exist and there is no physical evidence, there is only an effort to reveal the truth, but the perfect substantive truth cannot be revealed. Therefore, the contents of the statement should be comprehensively evaluated and the principle of presumption of innocence should be followed. In addition, it can be said that a case without reasonable doubt in conviction requires a high degree of certainty compared to a case with physical evidence.