아동 성폭력 피해자 보호를 위한 특별 진술절차 도입방안

The special evidence rules under the Act on the Punishment of Sexual Violence were introduced to prevent child victims of sexual abuse from suffering secondary harm by having to repeatedly testify about the abuse in court and undergo cross-examination by the defendant. However, when the Constitutional Court declared these special evidence rules unconstitutional in 2021, the protective shield that shielded child victims from the defendant's cross-examination was removed. Although the recently amended Act on the Punishment of Sexual Violence declares for the first time the principle of protecting child victims in criminal proceedings by considering the best interests of the child, it fails to improve the timing and method of cross-examination that negatively affects children, making it difficult to say that sufficient protective measures for child victims of sexual abuse have been established. To prevent child victims of sexual abuse from suffering secondary harm and providing inaccurate testimony during standard cross-examination in trial procedures, which hinders the discovery of substantive truth, it is necessary to introduce special testimony procedures that reflect the characteristics of child victims of sexual abuse while still providing the defendant with the opportunity for cross-examination. The special testimony procedure should be conducted in a pre-trial evidence preservation process presided over by a judge, where a specialist trained indirectly questions the child about issues raised by the defendant’s inquiry and records this process. After undergoing the special testimony procedure, it should be explicitly stated that, in principle, witness examination of child victims of sexual abuse is not allowed, except in cases where new issues are discovered that are not due to the fault of the defendant.