Korean Sexual Violence Law Viewed from Feminist Perspective

The Act for Punishment of Sexual Violence Crimes and Protection of Victims was legislated in 1994 thanks to the Korean women's rights movement. While women's organizations applauses for the Act, some criminal law professors including Professor Sang-Don Yi keep a critical standpoint of it for the Act is a female-biased legislation, violates the defendant's procedural rights. This Article begins with a critical review of Professor Yi's reflective feminism, which is strongly influenced by Jürgen Habermas' theory. In pointing of Professor Yi's ignoring that Habermas' ideal speech situation presupposes reflectivity and symmetry conditions, this Article takes position that Korean women's rights movement further need strategic action as well as communicative action. Second, it criticizes the marital rape exemption and the utmost resistance requirement in the Korean rape law. It argues that marriage must not be viewed as giving a husband the right to coerced intercourse on demand, and what matters is not whether the victim resisted but whether the victim's right to sexual autonomy was infringed. Third, this article examines that the mandatory requirement of victim's complaint for punishing rapists has not succeeded in achieving its alleged objective: to respect victim's privacy, rather to serve only to exempt the criminals. Finally, it firmly stands by the newly-established procedural shield for victims of sexual violence crimes by the Act for Punishment of Sexual Violence Crimes and Protection of Victims