Consider of Testimonial evidence from trusted persons and aggressive evidence preservation procedures

Abstract

The unconstitutionality of the 'minor' part of Article 30, paragraph 6 of the Special Sexual Violence Act, which was enacted to prevent secondary damage to minors and victims of sexual violence who are mentally or physically incapacitated, has led to a situation where secondary damage to victims of sexual violence who are minors is feared. The reason was that, the purpose of this provision, to prevent secondary victimization, can be achieved through the use of the video relay method and the proper exercise of the judge's courtroom control, and the admission of evidence based solely on the authenticity of a trusted person present would unduly infringe on the accused's right to cross-examine and defense. However, the decision to exclude the application of Article 30(6) of the Special Law on Sexual Violence to all minors without specifying the age range of minors is not a reasonable decision from the perspective of equity with victims who have not fully formed their personality and are forced to recall the time of the crime by attending the public proceedings in any form, as it is bound to have an adverse effect on their personality formation and development. Moreover, there may be circumventive attempts to admit statements made during the investigation without calling the minor victim of sexual assault as a witness, resulting in a serious violation of the accused's right to defense. Therefore, it would be desirable to limit the scope to minors under the age of 13, and as the Constitutional Court stated in its decision, the active participation of the court, as a neutral body, in the investigation process at an early stage of the damage and granting evidentiary power to the statements obtained will help to discover the truth, prevent secondary damage to the victim, and ensure the defense rights of the accused. This will require courts to establish a dedicated organization to implement evidence preservation procedures and to expand their hardware and human infrastructure.