비동의간음죄의 ‘동의’ 개념에 대한 고찰

Abstract

This paper explores the essential meaning of the concept of “consent” central to the discussion of non-consensual sexual offences and analyzes the related issues. The debate on introducing non-consensual sexual offences began following the 2018 MeToo movement, which criticized the traditional approach of focusing on force or coercion in rape laws for inadequately safeguarding sexual autonomy. In South Korea, consent is understood as the acceptance or approval of specific acts and exhibits structural similarities to the consent concept in Anglo-American liberal thought. However, while consent in Anglo-American contexts has become a core principle for protecting “autonomy” and “self-determination,” its philosophical and legal foundation remains insufficiently developed in Korea. Consent is a dynamic and complex concept that extends beyond mere agreement to an act, encompassing individual autonomy, self-determination, and the social and cultural contexts accompanying the act. In particular, sexual consent is not simply about approving or permitting an act but is a significant ethical and legal concept that guarantees autonomy and rights, necessitating a clear definition and legal concretization. However, the spontaneous and contextual nature of sexual acts, distortions in the consent process caused by power imbalances, and the legal challenges in proving consent present multifaceted issues. Notably, the notion of consent capacity may be a fictitious concept grounded in liberal ideals, as women have historically been denied recognition as autonomous agents and have often been coerced into giving consent within social structures and gendered power dynamics. Reflecting this reality, the legal requirements for consent should be reexamined to substantively guarantee sexual autonomy while considering gendered power structures and social contexts. Imputed consent, which assumes implied consent in specific circumstances without explicit affirmation, is especially contentious in sexual contexts. Instances where women's behavior or situational contexts are misconstrued as consent are prevalent, complicating the judgment of sexual violence in intimate relationships and increasing the risk of violating victims' rights. Furthermore, there is a risk of secondary victimization during the consent determination process. Evidence based investigative and judicial practices can exacerbate psychological burdens and societal stigmas on victims. The choice between attitudinal consent and expressed consent as legal standards also reveals procedural limitations and issues in criminal cases. Ultimately, the discussion surrounding non-consensual sexual offences should not end with determining whether consent was present but should serve as an opportunity to propose legal and institutional directions for realizing sexual autonomy and gender equality. To this end, it is essential to refine the legal definitions and standards surrounding the concept of consent and foster societal awareness. This paper seeks to lay the groundwork for the legal applicability of non-consensual sexual offences laws and social transformation through this discourse.