Research
Research Reports
| Title | A Study on the Reliability Assessment and Experience Rules of Victim’s Statement in the Criminal Case of Sexual Violence | ||
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| Date | 2020.03.13 | ||
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 A Study on the Reliability Assessment and Experience Rules of Victim’s Statement in the Criminal Case of Sexual Violence.pdf
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A Study on the Reliability Assessment and Experience Rules of Victim's Statement in the Criminal Case of Sexual Violence
The subject of this study is the experience rules as a criterion for determining the credibility of victim statements, which is one of the main evidences of criminal cases in sexual violence. This study is consisted of two independent parts; the first part focuses on comparative legal studies in regards to the experience rules, and the second part focuses on the analysis of Korean Supreme Court’s precedents and lower court judgments of criminal cases in sexual violence. Part 1 by Yong Chul Park is a comparative legal study mainly focusing on common law countries in the assessment of the credibility of victim statements in sexual violence cases, in particular on whether the statement is consistent with the experience rules. This study confirms the general discussion of experience rule presented in criminal cases as the basis of judges for determining the reliability of the victim’s statement, one of the important evidence of guilt in a sexual assault criminal case, which is absolutely lacking in direct evidence such as witnesses, and examines the details of the experiences or the experiences rule used by professional judges or jurors, mainly in common law countries, through comparative studies. The judge’s experience rule in order to screen the credibility of the victim’s statements in a criminal case of sexual violence should not be limited to the conventional wisdom of the general public, but should be the thing of high probability or of same degree of certainty as the science law. In determining the credibility of victim statements in sexual violence and criminal cases, the experience rule is used as criteria for determining the validity of statements, which cannot be arbitrary or uncertain. Therefore, the term, experience rule suggests many things in common law countries that emphasize the role of jurors in determining the credibility of victim statements in sexual violence and criminal cases. The experience that a jury uses to ascertain facts is more likely to be arbitrary than the judge's experience rule. Thus, courts in the common law countries in criminal cases of sexual violence are requesting the exclusion of various prejudices in advance to prevent arbitrary application of jurors’ experiences in the form of jury instruction. Such contents of jury instruction has some common ground compared with recent court cases noting gender sensitivity. Part 2 by Sunmi Lee focuses on critical reviewing the courts’ current practice of victims’ statements assessment based on the experience rules in sexual violence cases. Judging the credibility of a victim’s statement is not only a matter of evidential value but also a matter of exceptional admissibility of evidence. As regards the requirements for judging the credibility of a victim's statement, Supreme Court’s case law has been formed and developed. The case law in this aspect holds that the content of a statement should be consistent with the experience rules. Although the Supreme Court does not specifically suggest the meaning or content of the experience rules applied in criminal cases of sexual violence, the experience rules in this context must go beyond the simple probability to reach the level of proposition with high probability. Among the judgments of sexual violence rendered in lower courts across the country until the year of 2016, 474 judgments were carefully selected by browsing the case title ‘rape’ and the core keywords ‘credibility’ & ‘the experience rules’. Through these judgments, judges present propositions with very diverse and specific contents as so-called experience rules. In addition, the propositions that the court suggests as the experience rules in one case are not necessarily accepted in other cases or at different levels of the same case. An analysis has been made to find out whether some propositions that are currently considered as the experience rules in sexual violence criminal cases have reached to the extent of high probability, though it turned out not to be successful. The experience rules in criminal cases of sexual violence should not be presented anecdotally, but it should be found and tested using a scientific and empirical manner. Especially, in terms of discussing the experience rules with regard to the victim’s intentions and awareness of his/her surroundings, the judgment that the ‘average victim’ would have acted in a certain way should be ruled out because it is not appropriate to make a judgment how the victim would have behaved in general in determining the credibility of victims’ statements. Courts should try to judge more deeply the individual circumstances of the victim and the person itself. The demand for such efforts is understood by Supreme Court’s judgment on ‘gender sensitivity’. 
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