강간 피해자의 원하지 않은 임신도 상해인가?

Abstract

Recently, in the Supreme Court of Korea, there has been controversy over whether the victim's pregnancy is bodily injury in the case where the defendant, a stepfather, sexually assaulted an 11-year-old stepdaughter to become pregnant, and in the case where the defendant sexually assaulted a friend of his wife who was asleep under the influence of alcohol at his home. The prosecutor regarded the undesired pregnancy as bodily injury and prosecuted the defendant for aggravated-rape and aggravated-quasi-rape in these cases, but the Supreme Court of Korea admitted only rape and quasi-rape because the undesired pregnancy did not constitute bodily injury. Some scholars argue that pregnancy due to rape should be considered bodily injury, but discussions in Korea are still insufficient. Even in the context of US precedents, the question of whether a rape victim's pregnancy constitutes substantial bodily injury has arisen in numerous statutory rape cases, including a case in which a stepfather sexually assaulted a 13-year-old stepdaughter for months, leading to pregnancy, and then aborted. The pregnancy of a rape victim negatively affects the victim's physical and mental aspects. Therefore, it is argued that the physical and mental effects of pregnancy are the same as substantial bodily injury, and that the pregnancy of rape victims should be recognized as a factor that increases the punishment of rape. However, US precedents and legislation have different positions on whether to view physical changes caused by the pregnancy of rape victims as elements of aggravated punishment. Korean courts have not yet recognized the unwanted pregnancy of rape victims as bodily injury. However, in the United States, legal precedents sometimes consider the pregnancy of rape victims as bodily injury, and individual state legislations also recognize this. This paper compared and examined related precedents and legislation in Korea and the United States, and studied the question of whether to view the unwanted pregnancy of rape victims as bodily injury. In conclusion, the author of this paper argues in favor of interpretive and legislative theories that advocate for viewing the pregnancy of rape victims as bodily injury.