성행위에 있어 동의의 판단과 범죄화에 관한 일고찰

A sex crime occurs when the sexual self-determination is violated. In the criminal law and special law, the sex crime has been basically prescribed for a long time as a case of sexual intercourse accompanied by violence and threat. However, there have been many criticisms on the narrow interpretation of violence and threat after a certain period of time. According to the newly-rising paradigm, a sex crime should be judged based on the matter of consent by considering all the circumstances of assailant and victim even when the sexual intercourse has neither clear violence nor threat. Thus, this thesis considered it focusing on sexual intercourse without consent and stealthing. Both types are connected to each other in many aspects. Even though they are mostly handled equally in the aspect of the violation of sexual self-determination, they must be clearly distinguished from each other. In the middle of sexual intercourse under the condition of using a contraceptive such as condom, the contraceptive is removed or damaged against the victim’s intention. This is called stealthing, and it could be brought up as a problem. However, in case of sexual intercourse without consent, there is a fundamental problem of how to interpret the consent even though everyone fully empathizes with the necessity of regulation. In other words, the stealthing could be connected to the clear illegality in the aspect of removing a contraceptive like condom. In case of sexual intercourse without consent, it is questionable to clearly judge the matter of consent when such numerous processes and acts related to sexual intercourse are considered. And in case of stealthing, most of the opinions argue that it should be criminalized on the basis of consequential problem after sexual intercourse. But what should be clearly judged in stealthing is the problem of the act itself. In other words, even though we should fully consider the risk of sexually-transmitted diseases and sexual self-determination in relation to pregnancy and childbirth, the stealthing does not keep the consent of using a tool like condom, which could be led to the rational legislation in the future.