성희롱의 법적 판단기준과 피해의미의 딜레마: 법/경험의 틈새를 성찰하는‘피해자’관점을 중심으로

Abstract

This paper raises questions regarding the condition under which the basis and extent of the definition of sexual harassment is allowed to vary based on the perspective of the individual who passes judgment. In particular, this research looks into the legal bases for judgment, including the process of definition of the concepts “being against the person’s will”, “sexual remarks and/or actions”, and “a sense of sexual indignity”. It further analyzes how these legal bases impact the meaning of victimhood for sexual assault survivors. A comparative analysis of examples of legal cases or judicial decisions, dismissals, and the experience of victims may shed light on the link between the legal basis of judgments on sexual harassment and the meaning of victimhood. Victims facing “sexual remarks and/or actions” seem to undergo a complex process of to construct the meaning of their victimization, rather than immediately recognizing it as a sexual harassment. The victims may raise the issue of violation of equal rights when conventional gender roles are manifested in the form of sexual remarks and/or actions in a public relationship. However, some victims accept unlawful behaviors with a sense of humiliation, which may help to reinforce existing social norms about the protection of femininity and the assumed asexuality of public relationships. On the grounds of a lack of credibility, South Korean courts often dismiss victims’ testimony of pain. The courts tend to adhere to a narrow legal definition of sexual harassment which fails to take into account the context in which the sexual assault occurs and the range of individual interpretations of that experience by the victims. This demonstrates as well the limits of the protection provided by the law. Support for this argument is provided by an analysis of statements made by perpetrators as a supplementary case study. The results of the investigation establish that when passing judgment on sexual harassment, a deeper understanding of the perspectives of the victims must be considered. Although the reactions and experiences demonstrated by the victims are not uniform, this research explains the universal difficulty of standing up to sexual harassment and the pain victims face due to the personal and gender relationships that they have with their assaulter. In particular, it suggests a restructuring of the definition of “perspectives of the victims” based on an examination of the at times seemingly arbitrary interpretations of sexual norms and gender equality put forth by the perpetrators, victims, and judges regarding the relationship between unilateral sexual remarks and/or actions and the sense of humiliation. In the end, sexual harassment is an issue raised on the grounds of gender equality in a public relationship and the understanding of the diverse experiences of the victims against a backdrop of a gendered reality that condones unpleasant sexual remarks and/or actions. Therefore, the implications of sexual harassment can be more clearly identified and then amended through the understanding of the politics of defining sexual harassment.