성폭력범죄의 비친고죄화 방안

Abstract

The majority of sex crimes reported in the media recently were committed by repeat offenders. One notable reason for such recidivism is that no prosecutor can indict a sexual offense unless the victim files a criminal complaint, leading to the perpetrators’ awareness that they cannot be punished. Some of the crimes committed by these perpetrators went unpunished due to settlement with the victim or the victim’s refusal to file a criminal complaint, encouraging future offenses. Therefore it is necessary to deter sexual offenses by freeing these crimes from the requirement of victim complaint, thereby making the penalty for these crimes more certain. The rationale for making sexual offenses subject to complaint in the current law is the protection of the victim’s honor or privacy. However,we must consider that certain crimes of sexual violence are not subject to complaint and that this type of crime has a high recidivism rate. Furthermore, the perpetrator of a sex crime who evaded punishment due to the victim’s choice not to file a complaint may seek out other victims, thus perpetuating the cycle of violence and victimization. In the public interest of preventing sexually violent crimes, therefore, sexual crimes should no longer be subject to victim complaint. Legislators must close this loophole to achieve both general and specific deterrence. However, even if the indictment of sex offenses is no longer subject to complaint, the protection of the victim’s honor and privacy remains a valid concern and should be given effect. For instance, effective rules to maintain the confidentiality of the victim’s identity are necessary to prevent secondary victimization that may occur during investigation and trial. Other reforms include limitations on evidence modeled on Rule 412of the U.S. Federal Rules of Evidence making inadmissible the sexual history of a sex offense victim as long as such history is irrelevant to the case at hand, and the addition of a notice of rights in order to effectively guarantee the victim’s rights under the Criminal Procedure Act and special acts.