2018Gohap847 Rape

A

Park Woo-won (prosecution), Lee Jong-young (Public trial)

Attorney Kim Dong-dong, Kim Jong-chul

May 13, 2019

The defendant shall be innocent.

The summary of the judgment against the defendant shall be published.

1. Facts charged;

The defendant and the victim B (the age of 27, the U.S. nationality) came to know one another on the site of "C" and exchanged the message through "D".

On September 1, 2016, the Defendant sent and received the above victim’s “D” message to the above victim, followed the victim’s end-of-life in the south of Yongsan-gu Seoul Metropolitan Government, and induced the victim to the above victim to the hotel F of Yongsan-gu, Seoul around 23:46 on the day when the victim was late than the time of promise.

Around the above time, the Defendant threatened the victim with compensation for late in the undertaking with the victim, brought the victim's hand to his own sexual organ by putting the victim's hand, followed up the victim's body, and prevented the victim from going to her sexual organ into the victim's entrance, added the victim's fingers, added the victim's fingers into the victim's negative part, added the victim's fingers into the victim's negative part, added the defendant's fingers into the victim's negative part, and inserted the Defendant's sexual organ into the victim's negative part once.

Accordingly, the Defendant raped the above victim.

2. Summary of the defendant and his defense counsel

Although there was a fact that the defendant was sexual intercourse with the victim at the time of the instant case, there was no fact that the defendant had sexual intercourse with the victim, and there was no assault or intimidation to the extent that it would make it impossible or considerably difficult to resist the victim.

3. Determination

A. Relevant legal principles

The establishment of facts constituting a crime in a criminal trial ought to be based on strict evidence with probative value that leads a judge to have the degree of having no reasonable doubt. Thus, in a case where the prosecutor’s proof does not sufficiently reach the degree of ensuring such conviction, the determination ought to be made in the interests of the defendant even if there is suspicion of guilt, such as the defendant’s assertion or defense contradictory or uncomfortable dismissal (see, e.g., Supreme Court Decision 2017Do1549, May 30, 2017). In particular, in a case where the defendant consistently denies the facts charged and the victim’s statement is de facto only based on direct evidence consistent with the facts charged on the record, in order to find the defendant guilty on the basis of the victim’s statement, high probative value is required to have little doubt about the authenticity and accuracy of the statement, and whether such probative value is satisfied or not, comprehensively taking into account the reasonableness, consistency, objective reasonableness, etc. of the victim’s statement itself (see, e.g., Supreme Court Decision 2014Do13131, May 10).

B. Specific determination

The Defendant consistently denies the crime in the instant facts charged from the investigative agency to the instant court. On the other hand, the victim’s statement is virtually grounded on direct evidence that corresponds to the facts charged in the instant case.

However, in full view of the following circumstances acknowledged by the evidence duly adopted and examined by the court, it is difficult to view that there is sufficient credibility and probative value of the victim’s statement to the extent that it can be found guilty of the facts charged in the instant case, and the remaining evidence submitted by the prosecutor alone cannot be deemed as evidence to the extent that there is a reasonable doubt as to

1) Insufficientness of the victim’s statement

A) The victim made a relatively consistent statement to the effect that "the defendant forced the victim to take the victim's grandchildren and have the victim talk with his sexual organ," that the defendant forced the victim to take the part of the victim's body, that the defendant put the victim's fingers into the part of the sexual organ, and that the defendant interfered with the victim's sexual organ by taking advantage of the victim's hand and the part of the sexual organ."

B) However, the purpose of the overall statement of the victim is that the situation after entering a hotel is that "after entering the hotel, it is difficult to memory only in part," and the victim is not naturally stated in the order of time according to the passage of time.

It is doubtful whether the victim has actually experienced the fact that he/she actually stated. In light of the victim’s attitude of statement and its content, it is doubtful whether the victim has stated the fact that he/she actually experienced.

C) In particular, the victim stated that “the victim was off, her part, and her clothes were off, and whether the victim was off, or whether the defendant was off, or whether the defendant was off,” (Recording No. 1). The victim stated that “the victim was faced without memory,” and that “the part was her memory,” (Recording No. 20 pages), whether the defendant was out of the victim’s clothes, whether the defendant was forced to leave the victim, and whether the defendant was placed on the part of the victim, can be an important basis for determining whether the defendant was forced against the victim by exercising her tangible power, and whether the defendant started rape and rape. In addition, if the defendant got out of rape by exercising her force, it is natural to view that the victim left a strong impression for the victim, even if the victim did not memory the above her face, it is difficult to accept the part that the victim stated easily.

D) In the instant case, where the victim’s statement is the only evidence to prove the facts charged in the instant case, the victim’s statement should be specific to the extent that there is no doubt as to the assault, intimidation, and sexual intercourse, which are the constituent elements of the crime of rape. However, the victim’s statement as seen above is not clear that the Defendant’s exercise of force against the victim resulted in sexual intercourse.

2) The question of the victim’s statement about the Defendant’s assault and intimidation

A) Although the victim does not refuse to do so, the victim made a statement to the effect that the defendant made a sexual act by force. According to this, it may be viewed that the defendant made an attempt to have sexual contact with the victim by exercising force to the extent that the defendant exercised force against the victim's will. However, in light of the victim's specific statement about the situation at the time, it is doubtful whether the defendant made assault or intimidation to the extent that it is impossible or considerably difficult to resist the victim.

B) First of all, whether the victim assaulted or threatened the victim.

The defendant stated that he did not make intimidation (10 pages of the previous record), that he was aggressive, but he was aggressive (11 pages of the previous record), and that the defendant did not commit violence or neglect (13 pages of the previous record).

In addition, the "mutual attack" answers to the question as to whether the defendant did not have any intention to talk or escape the sexual organ of the defendant, but the defendant strongly desires to do so, and whether the defendant did not commit a sexual act with the defendant or not (hereinafter referred to as 11 pages).

C) The victim expressed that he would promptly end his last match by coercion (the 87 pages of evidence record), and that he forced the defendant to do so, but he did not voluntarily have the defendant's body (the 280 pages of evidence record), and that he had the defendant interfered with his body by continuing "(the 4 pages of record)" (the 4 pages of record), but he did so. However, he did not actively participate in such act. (a) The most good explanation was dynamic, and that the defendant made the defendant to do that act (the 13 pages of record). Although the victim did not want to do so, the victim's statement was strongly requested by the defendant, but the defendant did not have any sexual contact with the defendant, which was considerably difficult to protect or make it difficult to protect the victim. Furthermore, the victim's sexual contact with the victim.

D) The victim made a statement to the effect that "the victim forced the victim to take advantage of the victim's hand and the victim's injury, and caused the defendant to take advantage of the situation," and the victim's above statement was a passive or the defendant's situation, and it is natural to view it as the form of the victim who was rape due to the defendant's assault and intimidation.

E) The victim, without any mentioning mentioning at the time of the police investigation, stated that “the defendant was unable to leave the door before the prosecutor’s office” (Evidence No. 277 pages), and that “the defendant made a statement to the same effect in this court, and specifically stated that “the defendant was not easy to leave the defendant to the damaged door in the front immediately before the court” (No. 12 pages), and the change of the statement in detail depending on the passage of time constitutes an exceptional circumstance, and the content of the statement appears to have been somewhat different, it is difficult to believe that the victim’s statement was made as is.

3) The question point of the victim’s statement concerning the background and purpose during which the Defendant and the victim met

A) Although the part directly related to the instant facts charged is not directly related to the instant facts charged, it is confirmed that the victim made a statement contrary to the objective circumstances at the time of the instant case, and there is doubt as to whether the victim has made a true statement about the instant facts charged.

나) 먼저 피해자는 '피고인이 호텔로 오기를 원한다는 사실에 놀랐다' (녹취서 3쪽), '처음에는 호텔에 갈 것이라고는 몰랐다'(녹취록 7쪽), '피고인이 호텔에 있을 것이라고 생각을 하지 못했다(녹취록 9쪽)고 진술하였다. 그런데 피고인은 피해자가 약속 장소로 출발하기 이전부터 피해자에게 '알았어. 그러면 내가 방을 잡을게. 그리고 같이 밤 새자. 그러면 남영역에서 내려(OK Il get a room and we can stay the night with each other. Get off at namyoung station then ok)'라는 메시지(증거기록 별책 17, 38쪽, 오후 9:54 발신 메시지)를 보냈고, 피해자가 '지금 출발하려고 해(I'm about to leave)'라는 메시지(증거기록 별책 18, 39쪽, 오후 10:21 발신 메시지)를 보내자 '그리고 도착하면 내가 너랑 대화를 하기 위해 너를 기다리면서 반쯤 벗은 채로 어디 호텔 몇 호실 침대에 누워 있는지 알려줄게(And once you get there I'll tell you where the hotel and room where I'll be laying in bed half naked waiting to converse with you)'라는 메시지(증거기록 별책 18, 39쪽, 오후 10:21 발신 메시지)를 보내기도 하였다. 이에 비추어 보면, 피해자는 피고인을 만나러 오면서 이미 피고인이 호텔을 잡을 것이라는 점, 피고인과 함께 호텔에 머무르게 될 것이라는 점을 충분히 알고 있었다고 보아야 한다. 그럼에도 이러한 객관적 정황에 배치되는 진술을 한 피해자의 진술을 온 전히 신뢰하기는 어렵다.

C) In addition, the victim made a statement that "the defendant did not have any reason to think that he would wish to make a sexual figure," but the defendant continued to know that he had been the victim before the call. There is a defect in the masage. It is difficult to accept the victim's request to send the message "the victim's sexual figure 18, 39 pages, 10:16 messages" (Evidence No. 18, 39, 10:16 messages), "the victim did not directly respond to the victim's sexual intercourse 9:15 p.m., but it is difficult to accept the victim's request to send the message "the victim's sexual intercourse 198 p.m." while he did not directly respond to the victim's sexual intercourse 9:15 p.m.

4) Questions on the details of the instant complaint

A) From September 1, 2016, the date of the crime indicated in the facts charged, the victim filed a complaint against the Defendant under the charge of rape on February 5, 2018, which was around one year and five months from September 1, 2016, which was the date of the crime, and as long as the circumstances clearly indicate that the victim was practically unable to file a complaint against the Defendant, there is a considerable interval of time between the time of the crime and the time of the accusation as above.

B) The victim made a statement to the effect that “the victim had the mind to report but did not have the container so that the complaint was delayed (20 pages of the evidence record), but the victim had the mind to report, in light of the fact that the victim laid down all clothes on the day of the instant case (7, 15 pages) that the victim incurred, such as the boomer, etc., which could be an important evidence of the instant case, and deleted the recording file that the victim had recorded the situation at the time of the instant case (Evidence Nos. 21, 134 pages of the evidence record), it is difficult to accept the victim’s above explanation as it is.

5) The circumstances after the instant case

A) The victim stated that "the defendant was shower after the hotel room was her shower, and she was her frightened and her frightened at the hotel around 7-8:00 p.m. (Evidence No. 18), and that it was late at night (Evidence No. 18), it is difficult to understand that the victim she left a shower and her locked at the place where the rape was raped, while she remains at the place where she was raped.

B) On September 5, 2016, the victim first dialogued with the Defendant on September 5, 2016, and at the time, the victim was only about whether the Defendant was a U.S. military force or what was the previous rank, and did not mention the fact of the damage in the instant case (Evidence No. 19,40).

C) On September 6, 2016, the Defendant offered to the victim a proposal to the effect that the victim would bring about USD 40 to USD 500 on his/her charge of the instant crime through D. However, it is somewhat different from the Defendant’s conduct that raped the victim.

라) 피해자는 위와 같은 피고인의 제안을 거절하면서 피고인의 성폭행 사실을 언급하였는데, 피고인은 'ㅋㅋㅋㅋ 씨발 너 무슨 말을 하는거야?(Lmao what the fuck are you talking about)', '난 그런 짓을 하지 않았기 때문에 상관 안해. 너 완전 웃긴다 (I didn't do shit to you that's why I don't care. You're very hilarious)'라고 대답하였고(증거기록 별책 20, 41쪽), 이후 피해자가 피고인을 고소한 이래 수사기관에서부터 이 법정에 이르기까지 이 사건 공소사실을 일관되게 부인하고 있다. 피고인의 진술 중 '피해자를 도넛가게(커피숍)에서 만나 같이 호텔로 갔다'는 진술(증거기록 44, 260쪽), '사건 이후 피해자와 연락을 한 기억이 없다'는 진술(증거기록 50쪽)은 사건 당시의 객관적 정황과 배치되는 부분이지만, 피고인이 주장하는 것과 같이 피고인이 피해자를 강간한 사실이 없다면, 시간의 경과에 따라 피고인이 사건 당시의 구체적인 상황을 기억하지 못하는 것은 오히려 자연스럽다.

4. Conclusion

Thus, the facts charged in this case constitute a case where there is no proof of crime, and thus, is not guilty under the latter part of Article 325 of the Criminal Procedure Act, and it is so decided as per Disposition by publicly announcing the summary of the judgment of the defendant pursuant to Article 58

Judges and Judges of the Court

Judge Song In-bok

Judges Park Tae-soo

1) The recording paper attached to the third protocol of witness examination, part of the protocol of the trial; hereinafter the same shall apply.

2) At the time of the instant case, the victim made the first police statement at the time when about one year and five months elapsed from the time of the instant case, and at the time when about two years and six months elapsed, the victim appeared as a witness in this court and stated the damage.