성인지감수성과 형사소송법상 증거재판주의

Gender sensitivity has become a standard for determining sexual crimes from a certain point in time. However, it currently lacks even a clear definition, and case law recognizes sexual crimes on the basis of gender sensitivity without articulating what the term actually means. This reveals an inherent fundamental problem. Even if gender sensitivity emerged as a reflection on the past—such as overly narrow interpretations of violence and intimidation, or insufficient understanding of sexual self-determination—it cannot serve as a legitimate criterion for determining criminal liability in sexual offense cases. Furthermore, even if gender-sensitive interpretation is centered on victims who find themselves in unavoidable or vulnerable circumstances, the scope of such consideration should be limited to sexual crimes against children and adolescents, especially grooming behaviors conducted through the internet. In grooming cases, children and adolescents may inevitably fall prey to the perpetrator's intentions across a range of situations that defy general understanding, leading to various behaviors that may appear cooperative. Such matters require a perspective different from that applied to ordinary crimes. Nevertheless, it is evident that gender sensitivity cannot function as a fundamental solution. Most importantly, Article 307 of the Criminal Procedure Act stipulates that “the finding of facts shall be based on evidence” and that “the establishment of criminal facts must be proven beyond a reasonable doubt.” These principles conflict with judgments influenced by gender sensitivity. From the standpoint of the Criminal Procedure Act, the credibility of victim statements—which constitute the most heavily weighted element in gender-sensitive decisions—must also be carefully reviewed. In criminal trials, the credibility of statements by victims and defendants must be evaluated on equal footing, and prioritizing the credibility of the victim’s testimony—even considering the unique nature of sexual crimes—is not reasonable. Gender sensitivity also conflicts with the passive meaning of substantive truth, one of the core principles of criminal procedure. The abstract nature of gender sensitivity is structurally intertwined with findings of guilt, and considering that substantive truth includes the essential aim of preventing the wrongful punishment of innocent individuals, this presents a deeply concerning issue. Criminal proceedings must be conducted based on evidence, as explicitly prescribed by the Criminal Procedure Act. The protection of the defendant’s human rights must also be constantly borne in mind as an underlying purpose of criminal procedure. Therefore, given that even a single word becomes the subject of intense legal contention in criminal trials, future judicial decisions must either clearly define gender sensitivity and apply it rationally or refrain from using it altogether.