국민참여재판에서의 강제추행죄 판단에 대한 분석 - 2019∼2023년 국민참여재판으로 진행된 판결을 중심으로 - /

The high acquittal rate of jury trial cases regarding sex crime has attracted attention. Some explains that juries have a higher tendency to provide a not guilty verdict than judge, and that juries set a more stringent standard in order to provide a guilty verdict. Since sex crime often lacks of physical evidence compared to other kind of crimes, there is a need to analyze the statements of the involved parties and the relevant circumstances in order to deduce the mind set of the defendant. However, such process could be unfamiliar to the juries and may lead the juries to decide that there have been insufficient evidence to provide a guilty verdict. Second, some argues that rape myths, which are caused by a lack of understanding on sex crime situation, interferes. While rape myths can also affect legal professionals, rape myths will be harder to be corrected in jury trial as there is less chance that decision making in jury trial would be controlled by binding legal norms. This article reviews the foregoing arguments by analyzing indecent assault cases that have been processed through jury trial during the past five years. In the event the defendant and the victim were known to each other before the event, it seems that rape myths interfered in a way that past relationship between the parties, actions taken by the victim during the event were used as grounds to deny the indecent assault. Next, regarding indicent assault by surprise caused between parties without prior relationship, it has been verified that juries experienced difficulties in deducing the defendant’s mind set through indirect facts. In order to resolve those issues, education on fact finding should be included during the jury instruction process. Simple examples should be used when training juries to deduce the mind set of the defendant through indirect facts. Next, during the examination of evidence, the examination in chief of the victim should help the victim to actively organize its victimization through its own storytelling. The storytelling of the victim would reveal the actual aspects of the crime and prevent rape myths to interfere with the case. Jury trial should be revised in a way that would guide the juries to face the myths inside them and to understand the concrete experience of the victim, so that the juries would be able to make more delicated decisons on sexual violence crimes.