비자발적 동의에 의한 성관계는 강간인가?- 성적 자기결정권 침해 판단기준에 관한 검토 -

At present, the judgment criteria for the violation of sexual self - determination right by Korean society is confusing. Under traditional rape law, in order to prove that a rape had occurred, the state had to show both that force had been used and that the penetration had been against the woman’s will. If the state could not prove that the victim did not consent and that the perpetrator used the force, no crime would be committed. Therefore the state had to prove that the victim had resisted. As a result, It is not only that the rule of sexual violence is ‘Sex without No means Yes’ but also that the state exercises the sexual self - determination right of women instead. These are irrelevant and can not prevent sexual violence. Modern rape law lacks a governing principle. As an alternative, I suggest that ‘the liberty to be resisted’ and ‘the liberty to be defend’ can be distinguished. It also provides the standard for the distinction between ‘wants’ and ‘needs’ in relation to the judgment of the violation of sexual self - determination right. It will provide us a much richer account of the space for judging consent or not.