성적 자기결정권의 헌법적 함의 - 성폭력범죄의 판단기준인 성인지 감수성을 중심으로 -

Abstract

This Article goes on the Constitutional Implications of the Right of Sexual Self-Determination - Focusing on the Gender Sensitivity as Criteria of Sexual Violence -. Currently the legally abstract concept of gender sensibility is being used in sexual assault crime trials causing controversy. Therefore in this paper we examined whether gender sensitivity can function as a means or criteria for protecting or guaranteeing the sexual self-determination of victims by properly realizing the role of sexual self-determination under the constitution in sexual violence criminal trials. In order for gender sensitivity to exert the normative power to objectively and effectively protect victims right to sexual selfdetermination in sexual violence trials it is necessary to establish a basis as a universal rule of thumb for the average point of view of victims which is the criterion for judgment. It is necessary to prepare clear guidelines on the content and limitations of gender sensitivity necessary to operate as a rule of thumb in sexual violence crime trials. It is pointed out that the theoretical dialogue has not yet progressed sufficiently to use relatively unfamiliar concepts such as gender sensitivity or surprise assault as a basis for a trial. To some extent the problem of expansion of punishment based on the abstractness of sensitivity will also be solved. In the future it is necessary to align the direction of the research on the definition of the concept of gender sensitivity and the development of a criterion for judgment. If research on this continues to accumulate gender sensibility can be sufficiently established as the standard for practically realizing the right to sexual self-determination under the constitution.