‘Gender Sensitivity’ in the Sexual Harassment Cases and the Principle of Free Consideration of Evidence

Abstract

This paper analyzes the meaning of the Supreme Court ruling on sexual harassment sentenced on April 12, 2018, in relation to the Principle of free consideration of evidence under the Civil Procedure Law. The Supreme Court ruling declared, “Sexual harassment cases ought to be resolved with gender sensitivity in striving for gender equality and better understanding of gender discrimination issues (see Article 5(1) of the Framework Act on Gender Equality). In rendering judgment on the instant case, the Supreme Court emphasized that: (a) sexual harassment victims are constantly insecure and afraid that they may be exposed to ‘secondary victimization’ (also known as ‘victim-blaming behavior or practice’) upon having reported the incident and may be subjected to unfavorable treatment or suffer emotional distress; and, as such, (b) a victim remains silent and stays in contact with the offender (if the offender is a boss or holds a higher position), or raises the issue together with other victims after a considerable time has passed, or tends to become passive when giving testimony. As can be seen, readily denying the admissibility of a victim’s statement without sufficiently taking account of the extenuating circumstances of a sexual harassment victim cannot be deemed as establishing proof based on empirical and logical rules in line with the principle of justice and equity.” The Supreme Court ruling is a very meaningful one that can contribute to the realization of gender equality in civil and administrative litigations related to sexual harassment, because the responsibility for proof of sexual harassment in the case of sexual harassment litigation lies with the counterpart of the sexual harassment actor, and in fact the existence of sexual harassment is recognized by the admissibility of a sexual harassment victim’s statement. However, the Supreme Court ruling proclaimed such things as empirical rules without providing any evidence on the special circumstances of victims of sexual harassment. Based on previous research on the attitudes of victims of sexual harassment and secondary damage, the empirical rules declared by the Supreme Court is not wrong. The Supreme Court, however, should have opened a plea to hear the statements of expert references, to have the parties make a plea for them, and then declared in his judgment the empirical rules that was accepted in that plea.