성폭력범죄의처벌등에관한특례법위반(장애인강간)
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for three years.
However, the above punishment shall be imposed for a period of five years from the date this judgment becomes final and conclusive.
1. Summary of grounds for appeal;
A. Prosecutor 1) The victim misunderstanding the fact is a intellectual disabled person who cannot exercise his right to sexual self-determination.
The Defendant committed the instant crime with knowledge of the disability of the victimized person.
Nevertheless, the lower court erred by misapprehending the legal doctrine.
2) The sentence sentenced by the lower court to the Defendant (a three years of imprisonment, and 80 hours of completion of sexual assault treatment programs) is too uneasible and unreasonable.
B. The above punishment that the court below decided against the defendant is too unreasonable.
2. Determination as to the prosecutor's assertion of mistake of facts
A. The lower court, based on the evidence duly admitted and examined, found the following circumstances: (a) the victim’s statement and attitude on video recording CDs were relatively accurate and clearly expressed his experience and thoughts; (b) the situation before and after the instant crime was committed and the Defendant made a clear statement about his past; (c) the Defendant did not seem to have made a long dialogue with the victim at the time of committing the instant crime; and (d) the Defendant expressed the statement about the disability of the victim or a third party before committing the instant crime.
In full view of the fact that there is no evidence to see that the evidence submitted by the prosecutor alone proves that the defendant was aware of the mental disability of the victim at the time of the instant crime without reasonable doubt.
It is difficult to view this part of the facts charged, and on the grounds that there is no other evidence to acknowledge it.
B. According to the evidence of the court below, since the victim strongly expressed his intention to refuse the sexual intercourse to the defendant, the defendant was aware of the victim's intellectual disability at the time of the crime
It is difficult to conclude it.
This point and the circumstances mentioned above in the judgment of the court below.