2017Ma740 Quasi-rape

A

Yellow Nanacs (prosecutions) and courtrooms (public trial)

Attorney B

November 16, 2017

A defendant shall be punished by imprisonment for two years.

To order the defendant to complete the sexual assault treatment program for 40 hours.

Criminal facts

On November 6, 2016, at the main point of "F" located in Gangnam-gu Seoul, Gangnam-gu, Seoul, a new wall on November 6, 2016, with the victim G (the name, the 27 years of age) and friendly job offering H (the name of the victim) and became aware of the victim. At around the same day, the defendant in Gangnam-gu, Seoul and the above C were drunkly drunk in a living room where the defendant living together with the defendant in Gangnam-gu, Seoul, around the same day, and were locked, and the victim was locked with the victim's chest and the panty body in a situation where the victim was unable to resist, and sexual intercourse was committed once by inserting the victim's part and panty body, and inserting the victim's sexual organ into the part of the victim.

Summary of Evidence

1. Partial statement of the defendant;

1. Legal statement of witness G;

1. Examination protocol of the accused by prosecution;

1. Request for appraisal (10) and written appraisal (27)

1. Photographss, etc. of victims G (aliass);

1. Reports on internal investigation (Evidence List 18);

1. Each investigation report (Evidence List 19,26);

Application of Statutes

1. Article applicable to criminal facts;

Articles 299 and 297 of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

1. Order to complete programs;

The main sentence of Article 16 (2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

1. Article 47(1) and Article 49(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes Exempted from Disclosure and Notification Orders; the proviso to Article 49(1) and the proviso to Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (the Defendant has no record of punishment for a sexual crime; the Defendant’s personal information registration of the Defendant and orders to complete sexual assault treatment programs are expected to a certain extent to prevent recidivism; considering the relationship between the Defendant and the victim, it is difficult to readily conclude that the Defendant has a sexual crime tendency against an unspecified number of unspecified persons solely with the instant crime in light of the Defendant’s age, family environment, social relationship, etc.; on the other hand, there are significant adverse effects that the Defendant will suffer from disclosure and notification orders, while it appears that the effect of the prevention of a sexual crime that could be achieved is relatively less likely to be disclosed and notified to the Defendant).

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

Under the agreement with the victim, the defendant only has sexual intercourse, but has not been sexually related by taking advantage of the victim's state of impossibility to resist.

2. Determination

Defendant D’s act and the victim’s day-to-day act were calculated at F’s point of view, and then moved along with the main points, the form of being drunkd by the victim is not observed, and H’s sexual intercourse with C, C, and D was reported to an investigation agency by asserting that Defendant C, C, and D was rape in combination with the victim’s family at the victim’s home, and the victim’s day-to-face was rape. During the reporting process, there were doubtful circumstances such as the victim’s leading statement by J, and the victim appears to have reported the damage to the victim, and the prosecution is difficult to recognize that the Defendant, C, and D committed rape with the Defendant, C, and D on the Special Act on the Punishment, etc. of Sexual Crimes (special rape). The non-prosecution of the Defendant, C, and D is recognized.

However, in full view of the following circumstances, it is reasonable to view that the victim had sexual intercourse with the victim by taking advantage of the state of being unable to resist, while under the influence of alcohol at the time of sexual intercourse with the Defendant, and the Defendant had sexual intercourse.

Therefore, the defendant and his defense counsel cannot be accepted.

① The victim stated at the investigative agency and the main point of “F” (hereinafter referred to as the “main point of this case”) that he was under the influence of the Defendant, while drinking the H and alcohol, he was deprived of his memory after drinking the alcohol. When the Defendant was broken in his dwelling room, the victim was out of his will, and that the sperm was laid down on the victim’s sexual flag, her son, her son, and her son who was locked on the floor. At the time of the first statement at the police station, the victim made a consistent statement about his state at the time when she was under the influence of alcohol, and the victim stated that he was under the influence of alcohol that she was under the influence of the Defendant and was under the influence of the Defendant, and thus, she was under the influence of the Defendant’s sexual intercourse (Evidence record, 659 pages, 70 pages). The part of the statement made by the Defendant and the victim’s sexual intercourse cannot be memoryd with the other party’s sexual intercourse.

Meanwhile, as seen above, the victim reported the fact of his damage by the J’s recommendation, and made a somewhat unclear or inconsistent statement concerning his own volume, the quantity of alcohol on that day, the part of memory, the circumstances reported to the police, etc. However, it appears that the victim was under the influence of alcohol at the time of the instant case, and the content thereof is not about the main part of the instant crime.

② According to each of the statements by Defendant D and C, the Defendant’s daily act and the victim’s daily act of drinking alcohol at around 13:56, Nov. 6, 2016, at around 2016, at around 2016, and around 2016, at around 14:57, the Defendant and the victim’s sexual intercourse appears to have been between the Defendant and the victim’s living place of residence and around 19:57 on Nov. 6, 2016 (Evidence: 14:0 on Nov. 14, 2016, the Defendant and the victim’s sexual intercourse were likely to have been recorded at around 40:57 on the same day (Evidence: 14:40 on Nov. 6, 2016).

However, as a result of the appraisal of the blood of the victim that appears to have been recovered at around 23:00 on November 6, 2016, the blood alcohol concentration of the victim was considerably high by 0.089% (Evidence No. 160 pages), and the blood alcohol concentration of the victim at the time of sexual intercourse with the defendant seems to have been higher than that of the victim.

③ On November 6, 2016, the aggrieved party entered the instant liquor around 07:00 on the same day, and stated that he/she would be able to drink with Defendant’s daily behaviors after entering the instant liquor, at around 07:00 on the same day.

Therefore, at the time of the instant case, the victim seems to have been accumulated in the scam and the scam, since he did not sleep from the night day before the instant case, and was in the state of drinking.

④ According to the statements of the Defendant, D, C, and H, the Defendant, D, C, the victim, and H were drinking together in the above residence, and they were able to play in the ward. D, C, and H had a sexual intercourse with the Defendant and the victim, and they had a sexual intercourse with the Defendant, D, C, and H, sent to the toilet order D and C. When C was showed, the Defendant entered the inside room and met the H’s chest, and followed the sexual intercourse with the victim.

At the time of sexual intercourse, the defendant made a statement that he was agreed upon by the victim (Evidence No. 10), but the victim was never locked, but he made a statement that he was aware of his eye (Evidence No. 306-307, No. 309 of the Evidence No. 306, No. 309 of the Defendant’s sexual intercourse), and the prosecutor’s question whether the victim was the victim at the time of sexual intercourse was not the victim.

A. A statement was made that “I would like to say that I would have been the victim’s sexual intercourse with the victim’s sexual intercourse with the victim’s sexual intercourse with the victim’s sexual intercourse with the victim’s sexual intercourse with the victim’s sexual intercourse with the victim’s sexual intercourse with the victim’s sexual intercourse with the victim’s sexual intercourse with the victim’s sexual intercourse with the victim’s sexual intercourse with the victim’s sexual intercourse with the victim’s sexual intercourse with the victim’s sexual intercourse with the victim’s sexual intercourse with the victim’s sexual intercourse with the victim’s sexual intercourse as above.” (Evidence No. 315 page of the evidence record)

⑤ On the other hand, the Defendant stated that, at the time of raising the sound of a H-related relationship between C and C, the victim was unlocked (Evidence No. 308 pages), D went to a shower toilet after H and sex relationship, and that the victim was flicked with the victim who was living in the ward. It is likely that the victim was flick before entering the room. (On the other hand, D was out of the room and was flick and flicked in the toilet after having H-related relationship with the inside of the police, it was difficult to say that the victim was flick at the time when the victim made a statement at the time when she was flick and flicked (Evidence No. 147 page of evidence record), when she stated that the victim was flick and flicked (Evidence No. 214).

However, the Defendant made a statement to the effect that he had sexual intercourse with the victim at the time of his sexual intercourse (Evidence Nos. 324) and that he had been aware that the victim was locked at the time of his sexual intercourse. Thus, even if the Defendant had her eyed before entering the inside, the victim seems to have been locked at the time of his sexual intercourse with the Defendant, even if the Defendant had her eyed before entering the inside, at the time of his sexual intercourse with the Defendant.

(6) As a result of the Defendant’s statement, at the main point of the instant case, there was almost no skin with the victim, and there was only a talk that mainly works with the victim without the victim’s talking about his skin, etc. (Evidence No. 302 of the Evidence No. 302). There was no other evidence that there was a circumstance in which the victim first had a sexual relationship with the Defendant on the day.

7) The Defendant, at an investigative agency, kidds the victim’s sexual relationship with the victim in addition to the victim’s sexual intercourse, and made a statement that he/she met the victim’s body and met his/her own sexual organ (Evidence No. 10 pages), and made a statement that he/she met the victim’s chest (Evidence No. 18 pages), and denied the victim’s sexual intercourse with the victim (Evidence No. 305 pages) by stating that he/she did not have sexual intercourse with the victim (Evidence No. 305 pages). However, the Defendant’s sexual intercourse with the victim’s outer part, quality part, panty part, lower part, and boom, she was found to have no fixed amount of the Defendant’s sexual organ inserted into the victim’s sexual organ after the detection of the sperm results, but the Defendant did not have any objective sexual intercourse with the victim’s sexual organ inserted into the victim’s sexual organ (Evidence No. 305 pages).

8) C and D, both of which were inside the state in which the text was open at the time of the sex relationship between the Defendant and the victim, was unable to hear the sound of sexual intercourse between the Defendant and the victim in the ward. This is a circumstance that is consistent with the gender relationship using the state in which the victim was unable to resist.

Reasons for sentencing

1. Scope of applicable sentences under Acts: Imprisonment for one year and six months to fifteen years; and

2. Application of the sentencing criteria;

[Determination of Type] Sex Offenses, General Criteria, Type 1 (General Rape)

【Special Convicted Person】

[Scope of Recommendation] Imprisonment of 2 years and 6 months to 5 years (Basic Area)

3. Determination of sentence;

The crime of this case is deemed to have sexual intercourse with the victim by taking advantage of the victim's potential to resist because the victim was under the influence of alcohol, and the nature of the crime is grave, and the victim appears to have received considerable mental impulse due to the crime of the defendant, and the punishment of the defendant is desired, and the defendant did not reflect his own crime, it is inevitable to punish the defendant strictly.

However, the defendant has no record of being punished for the same crime, the defendant appears to have committed the crime of this case in a somewhat contingent and contingent manner, and the defendant's age, character and conduct, environment, the process and result of the crime of this case, and other factors of sentencing as shown in the arguments of this case, such as the circumstances after the crime, shall be determined as ordered

Registration of Personal Information

Where a conviction becomes final and conclusive on the facts constituting a crime committed against a defendant, the defendant shall be subject to registration of personal information pursuant to Article 42 (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes and shall be obligated to submit personal information to the competent agency pursuant to Article 43

It is so decided as per Disposition for the above reasons.

For the presiding judge or judge;

The same judge's identity

Judges Lee Young-young