성폭력범죄의처벌등에관한특례법위반(장애인위계등간음)
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not less than three years and six months.
Sexual assault against the defendant for 120 hours.
1. The decision of the court below on the gist of the grounds of appeal (two years and six months of imprisonment) is too unreasonable.
2. Determination
A. On the ground of appeal, the Defendant asserts that “the Defendant was unable to properly distinguish the mental illness from the time of each of the instant crimes because of mental illness, such as getting off with intelligence from the time of the instant crime and getting back to the audience.” However, in light of the circumstances before and after each of the instant crimes, the background leading up to the instant crimes, the Defendant’s behavior at the time of the instant crime, and the statement made by the Defendant in the lower court and the party trial, it is difficult to recognize that the Defendant had weak ability to distinguish things or make decisions at the time of the instant crime, even though he was somewhat lacking in intelligence compared to other students in the same year. 2) Whether the Defendant was aware of mental disorder and the Defendant did not know the fact that there was a mental disorder at the time of each of the instant crimes.”
In full view of the evidence duly adopted and examined by the court below and the trial court, the victim was registered as a disabled person of Grade II with intellectual disability on September 21, 2012. The victim is a intellectual disabled person who shows intelligence low, recognition function decline, understanding influence decline, learning failure, delay of abstract accidents, lack of self-harm, lack of ethic personality, and ethic personality increase due to the delay of mental retardation. The whole intelligent index was 54, and the social satisfaction index was 59 (year 96). The defendant also stated that "the victim was aware of the fact that it is different from normal person," and "the victim was aware that it is four primary points while communicating with the victim," and the victim stated that "the victim was in a state of mental disability or lacks ability to make a decision on the things due to mental disability to the extent presented by the court below."