성폭력 처벌규정에 대한 비판적 성찰 및 재구성

초록

There have been many debates about the fundamental reform of the Korean sexual violence law and jurisprudence. Reviewing the suggestions from moral conservatism, liberalism and radical feminism, this article argues that first the right to sexual autonomy should be understood as one which is based on the democratic and equal communications. The right to sexual autonomy would be infringed not only by a 'violent' sexual act, but also by a sexual act interpreted as not-violent, but based on the gender-distorted sexuality. "Sexuality" is not natural, but socially constructed by gender-power in our society. From this argument, this article criticizes the Korean sexual violence law and jurisprudence and suggests the reform alternatives. First, dichotomy between rape(sexual intercourse) and the other sexual act in Korean Penal Code should be altered by classification according to the degree of infringement of the right to sexual autonomy. Second, the marital rape exemption which is maintained by the Korean jurisprudence should be abolished. If necessary, we have to introduce the provision for punishment of marital sexual violence. Third, 'utmost resistance' requirement to establish the sexual violence crimes should be replaced by the 'reasonable resistance' requirement. Fourth, disagreed sexual act should be newly constructed as a sexual crime of lower grade. It would be regarded as a "sexual violence", because continuing the sexual act in disregard of partner's earnest 'no' infringes the right to sexual autonomy.

키워드