피해자의 승낙을 오인한 사례의 형사법적 규율- 소위 ‘강간상황극 사건’의 법이론적 해결에 관련하여

A man broke into a woman's home and raped her by using force that was sufficient to overcome her resistance, removing her clothing, and engaging in sexual intercourse. It is clear that the perpetrator of this rape had full awareness of what he was doing. He was aware of and committing both assault and adultery, which are constituent elements of the crime of rape. Article 13 of the Criminal Act provides that awareness of the facts that constitute a crime is an essential element of intent. At first glance, it would seem that the actor of this rape would be found guilty of intentional rape. However, the courts that have addressed the case have been mixed in their judgments. The District Court acquitted the defendant of rape, finding that he lacked the intent to commit the crime, while the High Court convicted him of rape based on the finding that he had the necessary intent. The reason for this divergence was that the two courts disagreed on whether the defendant was genuinely mistaken about the consensual nature of the alleged rape, which was described as a ‘rape roleplay’. There was no consensual agreement between the actor of the rape and the victim that the act was a rape roleplay. However, it is the Court's conclusion that there is no intent to commit rape if there is a mistaken belief that there is consent, and there is intent to commit rape if there is a mistaken belief that there is no consent to a rape simulation. While affirming the validity of this conclusion, this article seeks to present the arguments leading to it from a different legal theoretical perspective. If there is such a thing as a consensual rape simulation, its legal nature should be the victim's consent. If so, the mistaken belief that it was a rape simulation is a mistake regarding the victim's consent under Article 24 of the Criminal Code. This is the same kind of mistake as a mistaken identity defense. If there is a mistake concerning the factual existence of circumstances that constitute a recognized justification, the limited theory of culpability adopts a compromise conclusion that the defendant is neither innocent nor guilty of intent, but guilty of negligence. The author adopts this conclusion and attempts to construct a new theoretical framework that faithfully interprets the language of Article 13 of the Criminal Code, while focusing on making the criminal system as concise as possible. Recent historical research has shown that the legislature had a specific intent regarding the phrase “facts that constitute a crime” in Article 13. If we come to the same conclusion, I think it’s okay to frame the theory in a way that honors the legislative intent. The mistake regarding simulated rape is a mistake of the victim's consent, which excludes intent at the culpability stage.