데이트폭력범죄에 대한 입법적 대응방안

Abstract

Even though dating abuse has emerged as a serious problem in our society, our current legal system is yet to provide an adequate answer to it. Dating abuse is often not reported, and it is difficult to provide evidence for it. Due to these factors, it is difficult to aptly punish the perpetrators under the current legal system. In addition, there is a lack of institutional measures for the prevention of dating abuse crimes and the protection of the victims. A new legal measure that correctly reflects the characteristics of dating abuse crimes is required. Based on an intimate and close relationship, dating abuse is perpetrated continuously and repeatedly. It may start out as a minor crime, but it is very likely to evolve into more violent crimes. To prevent the crime from reoccurring and to protect the victim, the governmental authorities should be involved in dating abuse cases from the early stages of the crime. To classify date violence as a separate category of crime, the term “dating abuse” or “dating relationship” must be legally defined first. The definitions given in the legislative bills being currently discussed lack legal clarity. Although it would certainly be difficult to stipulate various forms of dating relationships, we need a reasonable standard for interpreting relationships in order to ensure legal clarity in the legislation of dating abuse related laws. As seen in the American Violence Against Women Law, the standard of interpreting relationships should be based on integral factors to dating relationships, such as the duration of the relationship, the number of dates, and the degree of intimacy. Since the characteristics of dating abuse are similar in nature to those of domestic violence, the legal response to both crimes can also be similar. Provided that the current Laws on Domestic Violence are improved, I agree with categorizing and regulating dating violence together with domestic violence. To do so, the aim of the Laws on Domestic Violence should become “the protection of the victim” rather than “the protection of the household.” In addition, it is necessary to improve the degree of application and effectiveness of the victim protection under the current Laws on Domestic Violence: instead of having to go through numerous procedures and delaying the actual application of the protection measures, the role of the police should be strengthened so that protection measures can take effect immediately on the spot. Some have been advocating the introduction of the American Pro-arrest policy or the British Domestic Violence Disclosure Scheme (“Clare’s Law”). Because their effectiveness has not been proved yet, and because they contain the danger of infringing individual’s basic rights and possinly violate the Constitution of Korea, the introduction of such laws must be most carefully considered. In addition, I propose the regulations on stalking be strengthened to prevent dating abuse. Yet, it does not necessarily mean classifying stalking and dating abuse together and regulating them under the same laws. Finally, considering how important it is to overcome the imbalance of abusive relationship through the changes in the relationship itself in the case of intimate crimes, it would be prudent to always leave the possibility open for restorative justice.