준강간에서 피해자가 음주 후 수면 중 심신상실 또는 항거불능의 탐색

Abstract

This study explores the criteria for determining whether a victim of a sexual crime was in a state of mental loss or unable to resist due to intoxication and sleep at the time of the alleged rape by the defendant. To this end, this paper reviewed literature and court cases regarding Quasi-Rape. Academically, blackout and passing out are significantly mentioned in relation to alcohol consumption, whereas in court cases, the focus is often on whether the victim's mental state during sleep after drinking, which is not unconsciousness but a weakened or incomplete state of consciousness, constitutes an inability to resist. However, recent Supreme Court rulings highlight that in cases where time has passed and the victim later claims to have been in a state of inability to resist, the judge must make a highly logical judgment based on a comprehensive review of various evidences, including not only the victim's statement but also the defendant's. In conclusion, first, there exists a factual difference in perspective on attempted rape cases depending on the judge's gender, and even though the judge's decision is logical, it can still be subjective, indicating a need for the development of objective measures for mental loss or inability to resist. Second, it is appropriate for the prosecution or court to request expert analysis of statements, considering both the victim's and the defendant's statements. Third, more specific legal standards are needed for the ‘significantly difficult situation’ in the case of inability to resist. Fourth, since most attempted rape cases involve the victim alleging rape and the defendant alleging consensual sex, it appears necessary to typify the patterns of rape and consensual sex from a gender-equality perspective and provide judges with additional criteria for judgment.