성(sexuality)에 관한 처벌법과 보호법익의 재구성 방향: 성폭력특별법 입법 운동을 중심으로

The Sexual Violence Punishment Act, enacted in 1994, was instituted as part of a legislative initiative that addressed the legal constraints and areas for enhancement highlighted by the particular experiences of female citizens, and has been advocating for reforms concerning the following issues over the past 30 years: ① The creation of new offenses and modifications to the elements of existing crimes to rectify deficiencies in the Criminal Act’s punitive measures; ② The formulation of new regulations pertaining to sexual violence offenses; ③ The enhancement of penalties through the imposition of aggravated sanctions for rape and similar crimes under the Criminal Act; ④ The implementation of a system for the protection and support of victims during criminal proceedings, alongside the fortification of procedural safeguards; ⑤ The establishment of measures aimed at preventing recidivism among sexual violence offenders and the reinforcement of such measures. This plan, presented during the campaign, aimed to implement the Special Act on Sexual Violence, aligning with the objective of instituting a system to penalize sexual violence as a violation of sexual self-determination and to mitigate recidivism and collateral harm associated with such offenses. Nevertheless, considering the view of violence against women as gender-based violence, which initiated the campaign for the Special Act on Sexual Violence, the conceptualization of sexual violence focused on the violation of sexual self-determination presents certain limitations. The concept of gender-based violence highlights that gender relations and structures not only perpetrate violence against women but also hinder effective responses to such violence. In contrast, the right to sexual self-determination, a fundamental constitutional right, is predicated on the capabilities and interests of a liberal individual, neglecting the relational dimensions of exercising this right and the gender structures that influence it. Secondly, the right to sexual self-determination serves as a criterion for defining sexual offenses within criminal law, which relies on a binary framework of sexual violence and sexual norms, thereby inadequately representing the continuum of sexual violence against women that exists between sexuality and violence, as well as consent and coercion. Consequently, prostitution that compels sexual intercourse with a third party, together with the production and distribution of pornography that infringes against personal rights by objectifying women, is categorized as sexual customs offenses rather than sexual violence. This configuration pertains to the legislative tendency concerning the Sexual Violence Punishment Act, which inadequately addresses ‘sexuality’ with ‘violence’ in its formulation. Recent Supreme Court precedents on digital sex crimes have broadened the scope of sexual self-determination to encompass sexual objectification, unwanted sexual acts, and sexual intercourse. However, the concept of sexual objectification is framed within the context of sexual shame rather than gender-based violence, as sex crimes delineate the parameters of punishable sexuality under the law. In order to recognize and respond to violence against women as gender-based violence, it is necessary to reconfigure what is ‘sexual’ in the criminal law, and to do so, it is necessary to review the dichotomous composition of sexual violence and sexual customs crimes in the criminal law. Given that the societal implications of sexual offenses are central to the notion of “sexuality” within criminal law, it is imperative to examine the interplay between gender and sexuality by instituting a democratic social framework that promotes equality and recognizes violence as a form of discrimination. This analysis must expose the sexual objectification of women as a discriminatory and violent act that dehumanizes a specific group, thereby necessitating a conception of “sexuality” that incorporates the intersection of gender and sexuality.