사법판단 기준으로서의 성인지 감수성 - 최근 대법원 판례를 중심으로-

Gender sensitivity functions not merely as a general awareness of gender issues, but as a hermeneutic standard that seeks to correct judicial bias and approach substantive truth by taking into account the context of sexual violence and gendered power structures. Especially since the Supreme Court ruling in case 2019Do2562 (commonly referred to as the “Sexual Violence Case involving Former Governor Ahn Hee-jung”), gender sensitivity has substantively influenced various aspects of judicial reasoning, including the assessment of victim credibility, the interpretation of the legal concept of “power,” and the substantive evaluation of “consent.” This marks a legal development wherein sexual violence is recognized not merely as an issue of physical coercion, but one that must account for structural factors such as hierarchical relationships, psychological constraints, and fear of social stigma. Landmark rulings such as the Ahn Hee-jung case, Supreme Court 2017Du74702 (revocation of disciplinary action against a university professor for sexual harassment), Supreme Court 2018Do7709 (tragic case involving a sexual violence victim couple in Gyeryong), Seoul High Court 2017No3233 (commonly known as the “Street Tent Bar Rape” case), and Supreme Court 2023Do13081 (sexual assault case involving a defendant with autism and intellectual disability) are representative decisions that demonstrate the practical impact of gender sensitivity on judicial rulings. These cases illustrate a shift in judicial reasoning, moving away from focusing solely on whether physical resistance was shown or whether there was formal consent, and instead emphasizing the relational context and the psychological and social dynamics in which the events occurred. Nonetheless, an ongoing challenge remains: ensuring that gender sensitivity is harmonized with the core principles of criminal procedure, especially the presumption of innocence and the protection of the defendant's right to defense. Gender sensitivity must serve as a complementary standard aimed at correcting latent gender bias in judicial reasoning; it should not constitute an independent ground for conviction. Thus, expansions of the concept of “power” or the substantive interpretation of “consent” must be applied with caution, ensuring objectivity, legal predictability, and compatibility with the fundamental principles of criminal law. Ultimately, gender sensitivity and the principles of criminal justice need not be mutually exclusive; rather, they can and should operate complementarily. A balanced interpretive approach that upholds both victim protection and procedural fairness is required. To this end, courts must remain faithful to the original intent of gender sensitivity—as a means to ensure fairness in interpretation, not to presume guilt. The continued development of relevant case law and ongoing academic and practical discourse will be essential. Only such a balanced approach can ensure fair and predictable interpretations in sexual violence cases and help restore public trust in the criminal justice system.