2016Gohap77 Rape

A person shall be appointed.

OO (prosecutions, public trials), ○○ (Public trial)

Attorney ○○○ (Non Line)

May 24, 2016

The defendant shall be innocent.

1. Summary of the facts charged in this case

On June 13, 2015, the Defendant, at around 13, 2015, drinked to the victim B (the 45 years old, 45 years old) who first became aware of her address or contact address, and on June 18, 2015, at the ○○○○○○○○○ located in the Seoul Middle-gu, Seoul, and on the same day: 03:40 on the same day, the Defendant used to drink the Defendant’s dwelling at the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○.

Accordingly, the defendant raped the victim by assault and intimidation.

2. Claims by the defendant and defense counsel;

Defendant was sexual intercourse under the agreement with the victim, and there was no fact of assaulting or threatening the victim. Rather, after sexual intercourse, the victim demanded money from his own phone, and refused it, resulting in the instant case by threatening the victim to report sexual assault.

3. Determination

A. In a criminal trial, the establishment of a crime ought to be based on strict evidence with probative value, which makes a judge not to have any reasonable doubt. Thus, in a case where the prosecutor’s proof fails to fully reach the extent that such convictions may lead to such convictions, the determination ought to be made in the interests of the defendant even if there is suspicions of guilt, such as the defendant’s assertion or defense is contradictory or unreasonable (see, e.g., Supreme Court Decision 2010Do1487, Apr. 28, 201).

B. The defendant's statement is a direct evidence that seems consistent with the facts charged that he/she committed rape by assaulting or threatening the victim, and the victim's statement is made in the court and investigation agency, and the credibility of the victim's statement is examined.

1) The victim stated at the court and the investigative agency as follows:

① The Defendant, who became aware of singing the instant case, became the Defendant’s house on the second day of the instant case, and the Defendant’s house came to drink with the Defendant’s proposal. Upon arrival at the Defendant’s house, the Defendant was seated on the floor, and talked about the Defendant’s inside and drinking, and talked about the Defendant’s inside. After that, the Defendant went to the home, the Defendant was able to make a singular and drinking, and the Defendant was sing back to the home, tightly, knicked the himself who was seated on the bed, knicked with his body by hand, and forced sexual intercourse with his body by hand.

Although the Defendant attempted to resist against the Defendant, the Defendant ceased to resist against the Defendant, citing the fear that he would have died, “I am only. I am her,” and responded to the sexual relationship by having the Defendant go off, go off as he would have been able to die, and go off his clothes.

1 ② The Defendant’s house did not cause sound, considering that there was no person to assist in sound due to the absence of a half or lower-class, and there was no side house.

(3) At the time of responding to sex relations, he was in a bad condition.

④ After the completion of a sex relationship, the Defendant made the Defendant leave the ship in the main room, and left the crepan in a toilet outside the crepan, leaving the crepan and the mother and the room have disappearedd.

⑤ At around 15:15, at the time when the Defendant 5: (a) called a taxi station, I am to the police station; and (b) considering the safety of the taxi, I am to file a complaint for sexual assault (which would have been able to go through a high call). However, in light of the following facts and circumstances, it is difficult to recognize credibility of the victim’s statement in light of the evidence duly adopted and investigated by this court:

① The Defendant and the victim, who had a sexual intercourse, drinked 1 to 2 hours at a door-house, drinked about the situation before the Defendant and the victim met, and divided them into 1 to 2 hours at home, and more drinking drinking in the house, naturally passed a taxi on the Defendant’s proposal and became the house of the Defendant. After having arrived at the Defendant’s house, the Defendant divided the Defendant’s talks by drinking the drinking and the massage that the Defendant prepared. In this case, the Defendant used the victim’s comments, and the Defendant stated that “A police officer of the Yongsan-gu Marin-gu, in which the Defendant voluntarily frighted the Defendant, she was suffering from the Defendant’s sexual intercourse.”

The victim asserts that the Defendant, who was suffering from the victim’s own fault, abused the victim by harming him/her and threatening him/her to commit assault. This is difficult to understand the circumstances in view of the Defendant’s behavior, where the Defendant, who had been preparing for the inside of his/her house, took a considerable time drinking even after having arrived at the Defendant’s house, divided a natural talk. Rather, it is more consistent with the Defendant’s argument that the process up to the Defendant’s house and the circumstances before and after his/her sexual intercourse were sexual intercourse by agreement.

② The victim stated in an investigative agency and this court that he or she has a hole by dividing the buck, shoulder, arms, etc. from the Defendant. However, immediately after the instant case, a photograph taken by the upper part of the victim (in the investigation record No. 11, surface 1) is limited to the red trace of the part of the victim’s timber and a hole inside the left part, and there is no easy understanding in light of the scene where the victim was assaulted or the contents of the Defendant’s assault alleged. As regards the circumstance or time of the inner part of the left part, the victim alleged that the act was committed by the Defendant, and the Defendant did not see such a hole up until before the sex relation, and at the time of the instant case, the victim and the Defendant were in a state of massing in the front part of the Defendant’s house and the head of the Defendant’s house, and subsequent to the instant gathering, the victim may not have any other effect on the part of the victim’s blood relative relationship between the victim and the Defendant.

③ The Defendant’s residence in which the instant case occurred is under the vicinity of a multi-household, and there was another house at the entrance of the Defendant, and there was a toilet door on the right side.

Although the victim stated that there was no person to help another person to do so due to the absence of a side house, the victim appears to have sufficiently confirmed that there was another house in the process of entering the Defendant’s residence or leaving a toilet (the victim stated that there was a knowledge that there was an other toilet door) immediately adjacent to the Defendant. In addition, in light of the structure of a multi-household house in which the Defendant was living, it is difficult to view that each household’s dwelling space was considerably fasted, and the sound was in a isolated environment to the extent that it was impossible to save the sound.

(4) evidence Nos. 1-2 1- The victim’s clothes abutting on breasts of the victim. The results of genetic appraisal that the victim’s DNA punishment and DNA punishment of the suspect are mixed and examined (section 61 of the investigation record) are consistent with the facts of sexual relationship by agreement.

⑤ After the completion of a sexual relationship, the victim stated that the Defendant escaped from the room that the Defendant left the room to take away. However, it is not easy to view that the Defendant, who completed a sexual intercourse by force by the victim’s use of assault and intimidation, was an act of sexual assault perpetrator to prepare food and drink at the room immediately after the victim said that he/she was on board the room. Moreover, the Defendant’s house structure (No. 40 pages of the investigation record) of the Defendant’s house structure (the investigation record No. 40 pages of the investigation record) prevents him/her from getting out of the room, and it is also difficult to readily understand that the Defendant, who was on the front side of the entrance of the room, might not have ever taken out the room until her mother and her mother and her mother, so that he/she could not take out the room.

(6) The victim stated that it was a situation where the victim might have been brupted to the degree that it would not attempt to properly reflect the situation at the time of the instant case. However, at the time when the victim was forced to get out of the Defendant’s house and there was no few minutes, the victim’s phone call to the Defendant, who was a sexual assault perpetrator, was fluent, rather than reporting to the police, is considerably different from the attitude of the victim of sexual assault, that the victim, who was a sexual assault perpetrator, was fluent by themselves,

C. However, in light of the following facts and circumstances that can be recognized by the evidence duly adopted and investigated by the court, the Defendant’s assertion that he/she did not assault or threaten the victim and that he/she had sexual intercourse under the agreement is more reliable.

① At around 5:15, the Defendant received a phone call from the victim and reported it to 112 first (the time of the first declaration) after having received a intimidation call (the time of the first declaration is 5:26). Since then, the Defendant made a repeated report to 112 on the part of the victim (the time of the first declaration) and then again “in intimidation with the victim (the time of the first declaration is 5:26).” This is more persuasive to view that the Defendant’s act is generally difficult to be deemed to be a behavior to take sexual assault offenders, and rather, it is to take a intimidation call from the victim to promptly respond to it.

② After the above call, the Defendant sent a text message to the victim, “Is the victim to share the money,” and such content together with the above 112 Report, if there is no request from the victim to report without giving money, it is difficult to express it.

③ Even based on the on-site photograph taken by police officers C upon receipt of a report by the victim, it is only found that the Defendant and the victim make a statement as if they were the same before having sexual intercourse, and no other trace exists to deem that sexual assault existed.

D. In light of the above circumstances, it is difficult to believe that the victim’s statement alleged to correspond to the facts charged of the instant case’s credibility cannot be acknowledged, and the remaining evidence submitted by the prosecutor alone is insufficient to readily conclude that the Defendant committed assault and intimidation to the extent that it would make it impossible or considerably difficult to resist the victim’s resistance as stated in the facts charged, and there is no other evidence to acknowledge it otherwise.

4. Conclusion

Thus, the facts charged in this case constitute a case where there is no proof of facts constituting the crime, and thus, the court rendered a judgment of innocence under the latter part of Article 325

Jurors's verdict

- Not guilty: 7 persons (per day)

Judges Park Nam-cheon, Counsel for the defendant

Judges fixed-time replacement

Judges Park Jong-woo