미국에서의 비동의 포르노 규제에 대한 검토

Abstract

One of the negative phenomena caused by technological advances is the spread of“nonconsensual pornography”. Nonconsensual pornography is generally understood as‘distributing a private sexual image of another person without the consent of such person’. Victims of nonconsensual pornography suffer significant and irreparable damage not only to their personal lives but also to their professional jobs. Such reality of nonconsensual pornography has led many countries, including South Korea, to criminalize nonconsensual pornography. In the United States, efforts have been made to criminalize nonconsensual pornography, especially at both federal and state levels. In addition, discussions on how to improve nonconsensual pornography legislation are still active, even though most states have succeeded in legislating penal provisions criminalizing nonconsensual pornography. The purpose of this article is to derive implications for nonconsensual pornography legislation of South Korea through comparative legal studies on such legislation in the United States. Most U.S. states have penal provisions that criminalize nonconsensual pornography. In particular, each state provides in detail what is meant by‘private sexual image of a person whose intimate parts are exposed or who is engaged in a sexual act’, which is one of the requirements for establishing the crime of nonconsensual pornography. In relation to the subjective requirements for establishing the crime of nonconsensual pornography, some states require an actor to have a special purpose. However, highly strong and persuasive criticisms have been raised against such requirement. Article 14(2) and (3) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes(hereinafeter“Act”) criminalize nonconsensual pornography in South Korea. Such provisions have been amended in order to fill the gap in the criminal punishment for nonconsensual pornography. Despite such amendments, the following can be suggested for nonconsensual pornography legislation of South Korea, considering the results of comparative legal studies on the U.S. legislation. First, private sexual images should be more specifically defined in the Act. In addition, Article 14(3) of the Act needs to be amended in a manner that Article 14(3) of the Act is applicable when an actor uses the information and communications network to distribute the private sexual image regardless of the purpose of the actor. Finally, it is necessary to amend the Act in order to aggravate the punishment for distributing private sexual image when an actor also provides personal information about a person in such image.