The Defendant, with intellectual disability 3, was physically and mentally weak at the time of committing the instant crime.

The punishment sentenced by the court below (five years of imprisonment) is too unreasonable.

Judgment

Article 6 (4) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (hereinafter “Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes”) of the Act on Special Cases Concerning the misunderstanding of Facts should include not only the case where the physical or mental disability itself is in a state of impossibility or difficulty in resistance due to the physical or mental disability, but also the case where the psychological or physical resistance is impossible or considerably difficult due to the main cause of the physical or mental disability. In determining whether there exists a situation of difficulty or resistance due to the mental disability as the main cause, not only the mental disability of the victim but also the relationship between the victim and the perpetrator, including the status of the perpetrator, surrounding circumstances or surroundings, the content and method of the perpetrator’s act, and the perception and response of the victim.

B. In light of the legislative intent of Article 6(4) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, which intends to protect a disabled person’s right to sexual self-determination, determination of whether the victimized person was in an “a state of arbitrability” is a mentally disabled person. As such, the circumstance that the injured person is a mentally disabled person should be sufficiently taken into account. Thus, other than the victim’s intellectual ability externally revealed, the degree of social intelligence and reputation caused by mental disorder, and characteristics and communication ability, etc. arising therefrom.