A. In 2012, the Defendant: (a) known that the victim D(s) in the Jinhae-si, Jinwon-si, Jinwon-si, who is a intellectual disability Grade 3 due to mental retardation considerably lacks the recognition ability or judgment ability; (b) had sexual intercourse with the victim by using these conditions with the awareness that he was unable to properly resist to the Defendant, who is a male and a neighboring resident, due to his mental disability, such as significantly falling short of the recognition ability or judgment ability; (c) had sexual intercourse with the victim; and (d) had the victim at the end of the Sinwon-si, Jin-si, Jin-si; and (d) had sexual intercourse once with the victim by taking advantage of these conditions

Accordingly, the defendant has sexual intercourse with the victim by taking advantage of the victim's mental disability to resist.

B. In 2012, the Defendant had sexual intercourse once with the victim by taking advantage of the mental disability at the same place where the victim was unable to resist due to the same mental disability.

2. Determination

A. Article 6 of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 11088, Nov. 17, 201; hereinafter “the Act”) includes not only cases where a physical or mental disability or mental disorder itself is in a state of failing to resist, but also cases where a psychological or physical resistance is either impossible or considerably difficult due to the physical or mental disorder or the mental disorder. Among them, in determining whether a mental disorder was a state of failing to resist due to the main cause, the following should be comprehensively examined: (a) relationship between the victim and the perpetrator, including the victim’s status; (b) surrounding circumstances or environment; (c) details and methods of the perpetrator’s act; and (d) awareness and response of the victim.

On the other hand, Article 6 of the Act is to protect the sexual self-determination of the disabled.