이른바 스텔싱(Stealthing)행위의 가벌성에 관한 검토

Abstract

Stealthing refers to taking out contraceptive devices without the other person's knowledge in the process of sexual activity after agreeing to use the contraceptive device (condoms) during sexual activity. In the sense of “doing it secretly,” stealth in English is known as its etymology. The act of stealthing can cause mental and physical pain to the other person after sexual intercourse, such as infections such as sexually transmitted diseases or unwanted pregnancy, and discussions are underway in various countries such as legal response or punishment. Victims of stealthing are not only exposed to physical risks such as pregnancy or sexually transmitted diseases, but also see “a serious violation of dignity and autonomy.” In Korea, there is not much discussion about stealth yet. Accordingly, we reviewed the discussion between Germany, which recognized the punishment of stealth, and Japan, which opened the possibility of punishment due to the revision of the criminal law related to sex crimes. Germany's discussion presupposes that whether or not sexual intercourse against will is judged only by the presence or absence of the victim's natural will under the dominant influence of the ‘two-principle’, and the punishment of stealth behavior was also recognized in precedents. Germany, which introduced the ‘No means No’ model a step earlier, took the attitude of impunity of sexual activity based on deception, but changed its direction to recognize punishment through precedents. On the other hand, in Japan, we examine the violation of intention by paying attention to the defects of doctors due to deception. Even in the current law, there was a case where there was a deception in the process of forming the motive, but if there was a deception in the process of forming the motive, it was punished as a quasi-forced sexual offense. At the meeting of the Criminal Law (sex crime) subcommittee of the Legislative Council, a plan is proposed to add a case of deception as a means of establishing a crime of immovable sexual intercourse. However, in the case of punishment based on deception, it does not matter as a criterion for judgment whether it can be regarded as a separate act. Considering that the act of stealth not only raises physical risks such as pregnancy or sexually transmitted diseases but also seriously undermines the sexual autonomy and sexual dignity of sexual partners, the possibility of punishment as a sex crime should be affirmed. The provisions of the crime of non-existent sexual intercourse currently introduced in Japan can be a way to seek a new direction. However, the problem is whether or not there is consent to the sexual intercourse itself in the case of stealthing, but this can be evaluated as ‘sexual intercourse against intention’. Stealing can be viewed as an illegal act that can cause very mental and physical anxiety to the other person. Therefore, it is necessary to consider it in the constituent requirements of future sex-related crimes.