[1] Meaning of Article 6 of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (hereinafter “Special Cases Concerning the Punishment, etc.”) and standard for determining whether a mental disorder was mainly caused and was in a state of failing to resist

[2] Whether “rape-rape, etc. against a disabled person” under Article 6 of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes ought to be proved to be established that the disabled person who received the intellectual disability grade has a mental disorder to the extent that he/she cannot exercise his/her right to sexual self-determination in addition to the intellectual disability (affirmative), and whether the accused should be aware

[1] Article 6 of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 11088, Nov. 17, 201) includes not only cases where the physical or mental disability or mental disorder itself is in a state of failing to resist, but also cases where psychological or physical resistance is either impossible or considerably difficult because the physical or mental disorder or mental disorder has the main cause. Of them, in determining whether there was a state of failing to resist due to the mental disorder, not only the mental disorder of the victim but also the relation between the victim and the perpetrator, including the status of the perpetrator, surrounding circumstances or environment, the content and method of the act, and the perception and response of the victim shall be comprehensively examined.

[2] Article 6 of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 11088, Nov. 17, 201) is protected to the right to sexual self-determination of persons with disabilities. Thus, even if the victim is a disabled person with a intellectual disability, it shall be proved that the victim has a mental disorder to the extent that he/she is unable to exercise his/her right to sexual self-determination, other than a mere intellectual disability, and the defendant should be aware of such mental disorder

[1] Article 6 (see current Article 6 (4) of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Amended by Act No. 11088, Nov. 17, 201) / [2] Article 6 (see current Article 6 (4)) of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Amended by Act No. 11088, Nov. 17, 201)

[1] Supreme Court Decision 2005Do2994 Decided July 27, 2007 (Gong2007Ha, 1428) Supreme Court Decision 2012Do574 Decided March 15, 2012

Defendant

Defendant

Attorney Hy Jae-sik

Seoul High Court Decision 2012No1914 decided October 5, 2012

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Summary of the facts charged

On March 7, 2011, the Defendant came to know of the victim Nonindicted 1 (Inn, 24 years old), a intellectually disabled person of intelligence index 51, through hosting at the “Maban" game site. From March 7, 2011, the Defendant continued to call with the victim and continued to talk with the victim, and did not properly answer the victim. As such, the Defendant expressed a variety of desire to “○○” and made contact with the victim again, and even if the Defendant wishes to show the known body at the time of video call, etc., he was aware that the victim was intellectual problems, and around March 13:00 on March 27, 201, the Defendant took advantage of the victim’s home at around 22:00 on the same day, requested the victim to have sexual intercourse with the victim at the same place, and, at the same time, the victim was unable to resist with the victim by taking advantage of the victim’s perception that he did not want to do so.

2. The judgment of the court below

The lower court, based on its reasoning, found the Defendant guilty of the instant charges on the ground that, at the time of committing the instant crime, the victim was suffering from a mental disorder, which led to either refusal of sexual intercourse or resistance thereto, was in a situation that is impossible or significantly difficult, and the Defendant was sexual intercourse with the victim, knowing that there was a mental disorder with the victim and that his demand for sexual intercourse was either impossible or considerably difficult due to such mental disorder, and that the victim was sexual intercourse with the victim by taking advantage of such state

3. The judgment of this Court

However, such judgment of the court below is hard to accept.

A. Article 6 of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 11088, Nov. 17, 201; hereinafter “the Act”) includes not only cases where a physical or mental disability or mental disorder itself is in a state of failing to resist, but also cases where psychological or physical resistance is either impossible or considerably difficult due to the physical or mental disorder or the mental disorder. Among them, in determining whether a mental disorder was mainly caused by the mental disorder, not only the mental disorder of the victim but also the relationship between the victim and the perpetrator, including the victim’s status, surrounding circumstances or environment, the content and method of the perpetrator’s act, and the perception and response of the victim (see, e.g., Supreme Court Decisions 2005Do2994, Jul. 27, 2007; 2012Do574, Mar. 15, 2012).

On the other hand, Article 6 of the Act is protected to protect the sexual self-determination of a disabled person. Thus, even if the victim is a disabled person with a intellectual disability grade, it should be proved that he/she has mental disorders to the extent that he/she is unable to exercise his/her sexual self-determination right, and at the time of sexual intercourse, the defendant should be aware that

B. According to the evidence duly admitted, the victim's intelligence index was measured at 51 and 35.91, and judged as Grade 3 intellectual disability. The victim's speech function has been significantly deteriorated in the examination report on the victim's psychological examination conducted since the occurrence of the instant case, and the victim's ability to acquire and solve the problems with respect to customary standards and norms has been delayed, and thus, the victim's intellectual disability appears to exist in light of these facts.

However, as seen earlier, mental disorders stipulated under Article 6 of the Act should reach the extent of not exercising the right to sexual self-determination, and therefore, we examine whether victims have mental disorders to the extent that they cannot exercise the right to sexual self-determination.

According to records and evidence duly adopted, the following circumstances are revealed.

① In light of the content of text messages sent by the victim to the defendant, the first written statement by the police officer against the victim, and the victim’s investigation report, there is a little doubt about such expressions, but the victim appears to be aware of the sex act and the meaning of pregnancy, and there is a fact that the victim refused to complete several proposals in South Korea, which appears to be premised on the sex relationship of the defendant.

② In light of the content of text messages exchanged with the Defendant regarding the Internet game and university life or daily life and the fact that the victim took care of himself/herself while leaving Daejeon, and without any special guardian, the victim seems to have a capacity to make decisions to a certain extent on various issues that may arise in his/her daily life.

③ If the victim sent the Defendant a text message “self-injury”, the victim seems to have understood the meaning of suicide.

④ The aforementioned psychological investigation report is based on the existing method of inspection and consultation, and is written without considering the text message exchanged between the Defendant and the victim and the specific form of the victim’s college life and independent daily life. There is no content about the victim’s existence of sexual self-determination.

In full view of these circumstances, although the victim has a intellectual disability classified as a disability grade, it is difficult to readily conclude that he/she has a mental disorder to the extent that he/she is unable to exercise his/her right to sexual self-determination protected under Article 6 of the Act, and there is insufficient circumstances or objective data to deem that he/she has such a disability.

C. Furthermore, we examine whether the defendant has sexual intercourse with mental disorder recognizing that the defendant was unable to resist.

According to records and evidence duly adopted, the following circumstances are revealed.

(1) The Defendant, as a university student living more than a victim, exchanged a text message of about 1,00 copies for about 20 days with a university student living alone in Daejeon, while playing the Internet game. There is no content suggesting that the Defendant perceived that the content of the text message exchanged with the victim was a intellectual disorder of the victim.

② The Defendant exchanged text messages with the victim, but frequently exchanged online games, and text messages with respect to daily life at universities and colleges, as well as daily life.

③ In light of the text messages, even though the Defendant had expressed the victim’s desire several times, it may be viewed as an inevitable act between the Defendant and the Defendant through the Internet that guarantees an anonymousness. The victim also made an excessive speech to the Defendant, such as “Isle,” “Isle,” “Isle,” “Isle,” and “Isle,” and “Isle,” through text messages and Internet hostings.

④ In the first instance court, Nonindicted Party 2, who works in the victim’s apartment house with a family helpers, stated that the victim’s parents were disabled by the victim, but the victim did not have any particular difference from other people in his appearance or speech at the time of other persons, and that the victim did not appear as a person with a her own name to the extent that it can be immediately perceived as a person with intellectual disability even if the victim first met.

⑤ The victim sent an in-depth text message to the Defendant as to whether the Defendant was satisfed and satisfed, and the Defendant was satisfed.

(6) Although the victim made a statement even though the Defendant was able to take a bath to himself, the Defendant consistently asserts that there is no such fact, and the victim also stated in the first instance court that there was no intention of the Defendant at the time of sexual intercourse with the Defendant or immediately before sexual intercourse with the Defendant, and there is no clear statement as to whether the Defendant intended to take a bath at a certain time, it is difficult to recognize that the Defendant had taken a bath with the victim.

In full view of these circumstances, it is difficult to view that the defendant was aware that the victim was unable to resist due to a mental disorder and has sexual intercourse with him/her to the extent that it can be ruled out a reasonable doubt.

D. Therefore, it is difficult to readily conclude that the victim was “a state of failing to resist due to mental disability” as referred to in Article 6 of the Act, and further, it is difficult to readily conclude that the Defendant had sexual intercourse with the victim

Nevertheless, the lower court found the Defendant guilty of the instant charges without further deliberation on the mental state of the victim. In so doing, the lower court erred by failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment, by misapprehending the legal doctrine on the failure to resist prescribed in Article 6 of the Act

4. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)