성폭력범죄의처벌등에관한특례법위반(장애인유사성행위)등
The defendant's appeal is dismissed.
1. Summary of grounds for appeal;
A. In the absence of an indecent act by inserting the Defendant’s sexual organ into the resistance or the mouth of the victimized person by assault or intimidation to the extent that it would make it impossible or considerably difficult to resist the victim with a mental disability, the Defendant was guilty of all the facts charged in the instant case. The lower court erred by misapprehending the legal doctrine.
B. The Defendant, who was mentally and physically weak, was physically and mentally weak at the time of committing the instant crime with a disability of the first degree of intellectual disability.
(c)
Sentencing improper sentencing of the court below is too unreasonable.
2. Determination
A. The crime of indecent act by force of judgment on the assertion of mistake of fact is established when the indecent act is committed by the indecent act of another by means of assault or intimidation, and such assault or intimidation is required to be such a degree that it would be difficult to resist.
In addition, whether such assault, etc. was likely to make it difficult for a victim to resist shall be determined by comprehensively taking into account not only the content and degree of the assault, etc., but also all the circumstances such as the developments leading up to the exercise of force, the relationship with the victim, and the circumstances at the time of and after the prosecution (see Supreme Court Decision 2011Do805, Jul. 26, 2012). The same applies to the crimes of violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes and the Punishment, etc. of Sexual Crimes (Indecent Conduct by Persons with Disabilities).
In light of the following circumstances, which were duly adopted and examined by the court below, the defendant can sufficiently recognize the fact that the defendant committed an indecent act against the victim by assaulting or threatening the victim's resistance or mouth with mental disability. Thus, this part of the defendant's assertion is without merit.
1) ① The Defendant is a disabled person of Grade I with intellectual disability, and the victim is a disabled person of Grade II with intellectual disability, who is the Defendant and the victim.