형사사법절차상 성폭력 2차 피해의 심층구조

Abstract

This research starts from a question of why sexual abuse victims still suffer secondary victimization in criminal and court proceedings despite the implementation of anti-sexual violence laws and a significant expansion of the rights of victims witnessed over the past few decades. In particular, this study attempts to critically review how the reasonableness of law, which serves as a basis for determining sexual crimes, affects secondary victimization, with an aim to identify what needs to be presupposed to reconstruct the rights of victims. The secondary victimization that occurs in criminal and court proceedings tends to have characteristics as the following. First, the deep-rooted notion of women’s chastity still exerts strong influence over “a reasonable basis for legal judgment” even after 16 years since the law which defined sexual assault as a crime against chastity was abolished. In addition to this, the myth of victim precipitation combined with prejudices about a stereotypical image of victims is found to be major causes of secondary victimization. Second, the provisions making crimes indictable only upon a complaint from the victim, which were originally created under the goal of protecting the honor and privacy of victims, are exploited by offenders as a means to get away from criminal charges by forcing their victims to give up legal measures. As a result, they serve as a cause of insult and human rights violations against the victims. Furthermore, the requirement of the irresistible level of violence, which requires the victim to prove that there was a serious level of violence and intimidation that made resistance impossible, overlooks the context of relations between the offender and the victim that involves hierarchical order and/or power. Third, the inexpertise of law enforcement personnel and lack of proper regulations puts the privacy and safety of victims at risk. The victim’s right to information, which requires upon the initiation of the investigation that the victim be informed of her/his rights as a victim, the details of criminal and court proceedings, the status of the offender, and the availability of support organizations, is rarely respected. While there are laws that guarantee victims’ right to participate in criminal proceedings, right to information, right to protection, right to personality, right to damage claims, and right to assistance, these rights are often ignored due to ineffectiveness in the implementation of the laws. This research has revealed the structure in which the laws and institutions concerning the rights of sexual abuse victims are operating by investigating the experiences of secondary victimization among sexual abuse victims. Based on its findings, this thesis has criticized the failure of reflection of experience and voice of victims in the legal judgements underpinned by ‘reasonableness’, while arguing that viewing victims as the holders of rights and the realization of those rights of victims as the responsibility of the State should be a key element in the creation and implementation of law and policies.