자기파괴적 의사와 위력에 의한 간음죄: 법철학적 접근

The lesson that the world-sweeping Me Too movement has taught us is that sexual intercourses by abuse of authority are by far more serious crimes than generally thought to be, and that the current criminal law system fails to bring justice to them. Many offenders have been let off without punishment on the ground that the victims had voluntarily acceded to the sexual intercourses, or they had given approval or consent to the sexual intercourses, or they had not resisted. This is so despite the fact that the crimes destroy the souls of the victims by forcing them to sex. The task for legal theorists is then to remove loopholes in the current criminal law system either by amending it or by providing a new interpretation of the relevant clause, ‘Sexual Intercourse by Abuse of Authority’. With this in view, this paper will derive the notion of self-destructive will from Harry Frankfurt’s philosophical anthropology and thereby suggest a new interpretation of ‘Sexual Intercourse by Abuse of Authority’. The gist of the interpretation is that if the victim is under the offender’s protection or supervision, and if his or her will to sex with the offender is “self-destructive” in the sense to be explained below, then the corpus delicti for the crime is satisfied. I will argue below that this interpretation, while reasonable from a legal theoretical perspective, succeeds in bringing justice to those cases that have not been properly dealt with by the prevailing interpretation of ‘Sexual Intercourse by Abuse of Authority’.