2018Quasi-rape and attempted rape

A

Dogman (prosecution) and Kim Young-Nam (Trial)

Attorney B, C.

April 5, 2018

A defendant shall be punished by imprisonment for not less than two years and six months.

However, the execution of the above punishment shall be suspended for three years from the date this judgment becomes final and conclusive, and the defendant shall be ordered to attend the sexual assault treatment lecture for 80 hours.

Criminal facts

On June 8, 2017, the defendant worked for the same company as the victim D (the age of 27). On June 18, 2017, in a singing room where the main points and trade name of the "F" in Gwanak-gu in Seoul Special Metropolitan City are unknown, the defendant got off with the victim's house in the next Busan Special Metropolitan City and went back to the victim's house in the next Busan Special Metropolitan City.

1. Quasi-rape;

At around 02:10 on June 9, 2017, the Defendant, under the influence of alcohol, h 406, laid off the victim’s clothes from a bed, laid off all of the victim’s clothes, laid off the victim’s sexual organ into the sound part of the victim.

Accordingly, the defendant has sexual intercourse with the victim by using the victim's defective condition 1).

2. Attempted rape;

The Defendant ceased sexual intercourse at the time and place of the above Paragraph (1) above, her spirit was the victim’s speech, and the Defendant tried to stop sexual intercourse. The Defendant attempted to find the victim’s arms following the Defendant’s frightion, put the victim’s arms on the bed, put the victim’s arms on the bed, put the victim’s arms into the bed, and put the victim’s arms into the bed, and put the victim’s sexual organ into the part of the body, but the Defendant resisted the victim’s fright and resisted the victim’s intention. Accordingly, the Defendant attempted to rape the victim by assault but attempted to commit an attempted rape.

Summary of Evidence

1. Partial statement of the defendant;

1. Each prosecutor's protocol of partial examination of the accused;

1. Statement made to D by the police;

1. Details of the transmission of text messages after the occurrence of the case, such as set for diagnosis and treatment of sexual assault, evaluation reports on victims, and text messages;

1. Data on response to requests for appraisal;

1. Application of Acts and subordinate statutes on criminal investigation reports;

1. Article applicable to criminal facts;

Articles 299 and 297 of the Criminal Act (the point of quasi-rape), Articles 300 and 297 of the Criminal Act (the point of attempted rape)

Articles 25(2) and 55(1)3 of the Criminal Act (the crime of attempted rape)

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (aggravating concurrent crimes with the punishment heavier than that prescribed for quasi-rape)

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following consideration of favorable circumstances among the reasons for sentencing):

1. Order to attend lectures;

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

1. Exemption from an order for disclosure and notification;

The judgment on the assertion of the defendant and his/her defense counsel on the following facts: (a) Articles 47(1) and 49(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes; (b) Articles 49(1) proviso and the proviso to Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (only taking part in the registration of personal information of the defendant against the defendant and the taking part in the treatment of sexual assault); and (c) the defendant's age, family environment, social relationship; (d) the details, circumstances, and results of the instant crime; (e) the prevention of sexual crimes subject to registration that may be achieved due to the disclosure or notification order; and (e) the protection effect of the victim; and the degree of disadvantage and anticipated side effects on the disclosure or notification order of the defendant's personal information.

1. Summary of the assertion

As to the attempted rape, the defendant attempted to resume sexual intercourse on the day of the case, but there was no assault against the victim as stated in the crime No. 2 of the judgment, and the defendant voluntarily suspended the sexual intercourse.

2. Relevant legal principles

Whether a perpetrator committed an assault or intimidation to establish the crime of rape ought to be determined by comprehensively taking into account the details and degree of the assault or intimidation, the developments leading up to exercising force, the relationship with the victim, and the circumstances at the time of the commission of the crime. Furthermore, the commencement of the crime of rape should be deemed to exist when the victim’s resistance is impossible or when the victim initiates assault or intimidation to the extent that it is considerably difficult to resist or make it difficult. In fact, the commencement of the crime of rape does not necessarily mean that the victim’s resistance is impossible or considerably difficult (see, e.g., Supreme Court Decision 200Do1253, Jun. 9, 200).

3. Determination

Comprehensively taking account of the following circumstances acknowledged by the aforementioned legal principles and evidence, the Defendant was found to have attempted to engage in sexual intercourse after putting the victim's arms on the bed, laying down the victim's arms on the bed, leaving the victim's arms on the bed, and doing so. This constitutes assault to the extent that it is considerably difficult to resist the victim's resistance as prescribed in the crime of rape. The Defendant and the defense counsel's assertion is rejected.

A. 1) The victim, at the police station, she laid off his/her clothes on the day of the incident and inserted his/her body with his/her mind by booming him/her into his/her body, and the Defendant ceased sexual intercourse because he/she wanted to be the Defendant’s words that he/she does not appear. The Defendant entered his/her clothes on the part of the Defendant, stating that he/she would be found to have his/her body, and was placed on the part of his/her body, and the Defendant was placed in his/her arms on the part of the Defendant’s body. After that, even though the Defendant stated that he/she did not do so, he/she tried to make his/her two arms unbold at the time of his/her speech and behavior, and to make the Defendant appear to be able to memory his/her body at the time of his/her speech and behavior, and to make the Defendant’s oral statement or behavior to the effect that he/she would not be able to capture the part of his/her body at the time of his/her behavior.

2) On May 1, 2017, the Defendant: (a) left the victim as the team leader of the company where the victim worked as the team leader of the business division; (b) did not have any physical contact with the victim prior to the instant case; (c) the Defendant took the victim who was fright at the window on the day of the instant case into the said H 406 (hereinafter “the instant telecom”) and had sexual intercourse with the victim, and attempted again in the situation where the victim stopped sexual intercourse with the victim, and (c) the Defendant tried to insert the message at the prosecution; (d) the victim did not refuse to receive the victim’s sexual intercourse and did not appear to have a false sexual intercourse with the victim; and (d) the victim did not appear to have his sexual intercourse with the victim before and after the instant case; and (d) the victim did not have any oral relation with the victim, such as the victim’s refusal to answer the victim’s sexual intercourse, by recognizing the victim’s sexual intercourse on the day of the instant case’s refusal to do so.

3) Therefore, the victim’s statement is reliable. As such, it can be recognized that the Defendant, on the part of the victim’s arms, laid down the victim on the bed and laid down on the bed, and made the victim’s arms unusable.

B. Comprehensively taking account of the following circumstances, the Defendant’s above act constitutes an assault as referred to in the crime of rape by exercising a tangible force that may significantly impede the victim’s resistance.

1) The victim was in a state of breathing the mind under the influence of breathing with company dues, including the Defendant, including the Defendant on the day immediately preceding the instant case. However, the victim was in a state of significantly decreasing the ability to resist due to the influence of drinking alcohol on the day immediately preceding the instant case, only when the Defendant had sexual intercourse with the victim on the day of the instant case.

2) Since the victim was in a situation where the Defendant was in a room in the heart, there was a limited resistance with the fear that the victim may have been able to suffer greater harm by stimulating the Defendant when requesting assistance, such as noise, etc.

3) In fact, the victim stated in the police that “The victim may not resist or move against the victim because he had scam more than 180 cm.” The CCTV image of the instant case shows a difference in the extent of one head (38 pages of the investigation record), and the actual defendant had experience in having scambling, which corresponds to the victim’s statement.

4) The victim was under the police investigation, and there was no ‘the defendant did not assault or threaten the victim'. However, the victim stated that ‘the defendant was in a situation that he did not know about the situation when he tried to gather the situation, he was imprisoned by selling, leading him to him, and leading him to him.' However, it was only a statement to the effect that the victim had a narrow understanding of the meaning of the assault and that it did not fit the defendant.

Reasons for sentencing

1. The scope of punishment by law;

From June to June 22

2. Scope of recommendations according to the sentencing criteria;

(a) Scope of recommendations and sentences for each crime;

1) The crime of quasi-rape

[Scope of Recommendation] General Criteria for the rape of the first category (general rape)

[Special Mitigation] Ad hoc Inspector

[Scope of Recommendation] Imprisonment of 1 year and 6 months to 3 years (Mitigation)

2) The sentencing criteria for attempted rape are not set.

(b) Scope of final recommendation: Imprisonment with prison labor for at least one year and six months (where the crimes for which the sentencing criteria are set and the crimes for which no sentencing guidelines are set conflict, only the lowest limit of the sentencing guidelines for the crimes for which the sentencing guidelines are set shall be considered);

3. Each of the instant crimes committed by the sentence decision was committed by the Defendant, who is a subordinate employee under the influence of alcohol after his/her workplace ceremony, and attempted to engage in sexual intercourse and re-Rape of the victim who suffered from sexual intercourse. In light of the content of the crime and the circumstances before and after the crime, etc., the crime is not committed. The Defendant is highly likely to have criticized the victim for sexual intercourse because he/she did not prepare appropriate measures to protect the victim, who appears to have been unable to have been under the influence of alcohol even though he/she was the victim’s workplace. Accordingly, the victim seems to have suffered a considerable sexual humiliation and mental suffering.

On the other hand, the Defendant did not have any history of criminal punishment except for those subject to a fine on one occasion in 2002. The Defendant appears to have committed such a crime somewhat contingent in the process of taking the victim into office. The Defendant paid the victim KRW 40 million under the pretext of an agreement, and agreed with the victim solely with the victim by having committed a serious crime. The Defendant paid the said agreement to the victim, and the Defendant appears to have made efforts to recover the damage, such as voluntarily withdrawing the victim’s mental suffering, in order to reduce the amount of the victim’s emotional suffering.

In full view of the aforementioned circumstances and other circumstances, including the Defendant’s age, character and conduct, environment, means and methods of committing a crime, motive and background of committing a crime, and circumstances after committing a crime, and the sentencing conditions as shown in the trial process, the punishment shall be determined as ordered.

Registration and submission of personal information

Where a conviction becomes final and conclusive on the facts constituting a crime in the judgment, the defendant is a person subject to registration of personal information under Article 42 (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and thus is obligated to submit personal information to the competent agency pursuant to

The presiding judge, the Gimology judge

Judges Kim Gin-young

Judges, Senior Jins

1) The instant indictment states that the Defendant had sexual intercourse with the victim “the state of mental or physical disability or impossibility to resist”. The crime of quasi-rape is committed.

D. The failure to resist refers to a case where psychological or physical resistance is not possible due to reasons other than mental disorder, and the victim is drunk.

If a locking has taken place, it shall not be deemed that it is not in the state of mental disorder but in the state of failing to resist (Supreme Court Decision 76Do3673 delivered on December 14, 1976, Supreme Court Decision 76Do3673 delivered on December 1

The court stated that the victim was deprived of consciousness and locked under the influence of alcohol (see, e.g., Supreme Court Decision 2001Do3490, Sept. 14, 2001).

In addition, since the defendant and his defense counsel recognize that the victim was in a state of mental disorder under the influence of alcohol, the defendant's defense right is exercised.

It is corrected to ‘the state of mental disorder' without going through the amendment process of indictment because there is no risk of disadvantage.

2) The defendant and his defense counsel's assertion that the defendant did not use violence or intimidation that constitutes the commencement of the crime of rape.

Such assertion may not be considered as an assertion about attempted suspension. Even if the Defendant and the counsel’s assertion were to be asserted about the attempted suspension, the general public shall:

It is deemed that the crime has been suspended due to the circumstances that interfere with the completion of the crime under social norms, and if it is only deemed that the crime has been suspended, it shall be suspended

Therefore, according to the evidence of the court below, the defendant cannot be assessed as having suffered from the victim's sexual intercourse because the victim's sexual intercourse with the victim's sexual intercourse with the victim.

Recognizing the fact that the commission of a crime has been committed, it can be recognized that the crime has been suspended due to the circumstances that interfered with the completion of the crime under general social norms.

It can not be evaluated that he has suspended the crime by himself.