장애인준강간죄에서 ‘항거불능’ 요건의 해석에 대한 비판적 고찰

Abstract

Sexual violence cases against the disabled have the characteristics that the victims were not so much able to resist as the non-disabled, to prove the existence of assault, to testify logically and so on. The court has to consider both the ‘universality’ as the sexual violence and the ‘specialty’ as the sexual violence against the disabled in trial. This study reviews the cases for 13 years after the provisional addition of the mental disability factor as a cause of ‘incapability of resistance’ to the rape clause of the disabled, and checks the logic and standards. In the results, the court turned out to understand improperly the characteristics of disability as well as to determine there to be any incoherent standards on ‘incapability of resistance’ requisite. In 2007, the Supreme Court applied more extended standards. However, the former decisions were not reversed according to the precedent alteration procedure, which requires the examination of all judges of the Supreme Court. Because of that, the attitudes adhering to the existing strict interpretation still continue to exist even after 2007. The court has applied mainly the standards like victim’s sexual intercourse experience, knowledge of sexual matters, intellectual capacity and level of education to the interpretation of ‘incapability of resistance’ requisite. According to such standards, the level of victim’s disability rather than defendant’s intention or behavior has played the critical role in the courts’ reasoning. Moreover, the court has not distinguished the victim’s ability of sexual self-determination from that of expression of her intention. In the result, there is a logical leap that if the victim should resist at all, she would have capacity to sexual self-determination.