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An Evaluation of Amended Criminal Act on Sexual Assualt Crimes - Centered on Rape and Sexual intercourse -

  • DONG-A LAW REVIEW
  • 2014, (62), pp.185-210
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

Sun Jong Soo 1

1동아대학교

Accredited

ABSTRACT

The amendments to the Criminal Act in 2012 have brought many changes in the sexual violence crimes. The definition of the subject of the crimes has changed from ‘woman’ to ‘person’, and Antragsdelikt, a category of offence where prosecution cannot be allowed without a complaint by the victim, has been abolished. Also, a new category of ‘like-rape’ has been established, and the provisions of the crime of obtaining sex under the false promises of marriage, which was found to be unconstitutional by the Constitutional Court in 2009, have been deleted. It was expected that the amendment of the subject of a rape in the Criminal Act would solve the possibilities of rapes in marriage as well as between the same sexes. However, despite of the change, the fact that a rape is considered to be an act of adultery in practice is becoming an obstacle to resolving the issue. In other words, because adultery is defined as a sexual intercourse between a man and a woman who are not marri! ed, the problem is that the rapes in the marriage and between the same sexes are not covered. It is related to how rape is defined. That is, the problem could be avoided if ‘rape,’ which is one of the requirements to establish a rape offence according to the Criminal Act, is redefined as an ‘act of sexual intercourse.’ Also, the amended Criminal Act on the sexual crimes could be positively evaluated in that heavier sentences would be meted out for a like-rape since it is a more serious criminal act than an indecent assault due to the fact that an act of forceful penetration is involved. However, what constitutes a like-rape is not clear-cut, and an amendment might be needed to resolve the issue. Also, it is true that the abolishment of the Antragsdelikt is a positive development, but there needs to be solutions for possible problems that could arise as a result, such as preventing the second and the third damaging effects on the victim that could occur during the trial proceedings. Finally, the Criminal Act is now structurally identical to the Special Act on Criminal Affairs Concerning Sexual Crimes as a result of these amendments; the problem is that the provisions for requirements for crimes are similar. This kind of problem could be fixed by streamlining the Special Act on Criminal Affairs.

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