2019Gohap266 Quasi-rape

A

Kim Dong-jin (prosecution), the teared leather, and the name of transfer (public trial)

Attorney Kim Jong-sung (Korean National Treasury)

February 11, 2020

A defendant shall be punished by imprisonment for three years.

The defendant shall order the defendant to complete 40 hours of sexual assault treatment programs.

Criminal facts

The Defendant, at around 06:00 on May 26, 2019, talked with the victim B (n, 31 years of age) and 2-3-month relationship, and had been contacted with the victim’s Kakaox message from May 25, 2019. On May 25, 2019, the Defendant had sexual intercourse with the victim out of panty and pantyty of the victim on May 26, 2019, at around 06:00 on May 26, 2019, with the victim’s residence where time has been late, and at around 06:0 on May 26, 2019.

Summary of Evidence

○ Part of the Defendant’s legal statement

○ Legal Statement of the Witness B

○ Some prosecutions and police interrogation protocol of the defendant

○ Each police statement on B

○ A gene appraisal report, 112 Report Processing List

○ Each investigation report

Application of Statutes

Article 14 of the Act applicable to the crime

Articles 299 and 297 of the Act

○ Order

Article 16(2) and the main sentence of Article 16(3) and Article 2(1)3 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

○ Exemption from disclosure, notification, employment restriction order

Articles 47(1) and 49(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, the proviso to Article 49(1), the proviso to Article 50(1), the proviso to Article 56(1), the proviso to Article 59-3(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse, the proviso to Article 59-3(1) of the Act on Welfare of Persons with Disabilities, and Article 2 of the Addenda (Law No. 15904, Dec. 11, 2018) of the Act on Welfare of Persons with Disabilities (Article 15904, etc.) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes. The fact that this case is not a crime against an unspecified victim, but it is difficult to readily conclude that there is a risk of recidivism of sexual violence, such as having been completed by order

argument and judgment of the defendant and defense counsel

1. Summary of the assertion

The defendant, under an agreement with the victim, was unable to resist and suspended the statement that he was retired from office, and does not have sexual intercourse by using the victim's state of refusal to resist, as stated in its reasoning.

2. Determination

The victim was set out in a concrete, consistent, and clearly stated as stated in its detailed, consistent, and clear reasoning, and as a result, he was out of her for-understanding, and the defendant was also able to have a sexual intercourse by excluding all his long-term, and the defendant was also able to satising, "I ambling, I ambling, I am her body," and she was satising, and the defendant was stopped, and the defendant was satising to satising about why she would continue to have son, while making a 112 report.

The above statement itself is not only poor in the form of the body, consistency, and clarity, but also consistent with the statement that the victim expressed his/her intention to clearly retire at the time of the instant sex relationship, namely, that is, the statement that the victim has clearly expressed his/her intention to resign at the time of the instant sex relationship, and the details of 112 declaration. Furthermore, the victim's statement about the instant case is highly reliable even in light of the various circumstances acknowledged by the evidence, including the following: (a) there was no special motive or reason for the victim again in the five to six years; (b) there was no other special motive or reason for the victim to want to have sexual intercourse with the Defendant; (c) there was no physical contact that the victim dices his/her sexual intercourse with the Defendant even before he/she was temporarily set off on the day of the instant case; and (d) there was no physical contact that seems to suggest sexual intercourse with the Defendant; and (d) immediately after the instant case, the victim expressed his/her intention to punish sexual crimes by making a report.

On the other hand, the Defendant asserts that he intentionally accessed the victim’s money and submitted the contents of the call (No. 4) between the Defendant and the victim after the instant case. However, even though the above contents of the call state the intent that the victim would want to divide the talk about the instant case with the Defendant, it would rather go back to the direction of dialogue, such as whether the victim would be required to reach an agreement or because of money, and whether the Defendant would bring the victim to receive money as well as the victim. However, the Defendant again clearly expresses the intent that he would want to hear the Defendant’s true intention, and the conversation would be different because the conversation would not result in imprisonment with prison labor upon being sentenced by the judgment.

As such, the victim demanded serious reflection and apology on the instant case rather than monetary compensation against the Defendant, and expressed his/her intent to avoid damage to the future social life of the Defendant Jong-il. In light of the victim’s position, i.e., the victim’s reflection more serious than punishment against the Defendant, and the mature attitude for resolving the instant case, it is unlikely that the victim was unaware of the Defendant by acting in the instant case.

Ultimately, in full view of the above evidence, such as the victim's statement that can be seen as having kept credibility as above, the facts constituting the crime in the judgment can be proven to the extent that it is beyond a reasonable doubt.

Reasons for sentencing

1. The scope of punishment by law;

From 3 to 30 years of imprisonment;

2. Scope of recommended sentences according to the sentencing criteria;

【Determination of Punishment】

Quasi-rape of rape (subject to 13 years of age or older) of the General Criteria for Sex Offenses

[Recommendation and Scope of Recommendation] Basic Field, Imprisonment for 2 years and 6 months to 5 years

[Scope of the recommended punishment revised according to the applicable sentence] Three to Five years of imprisonment (based on the lowest limit of the applicable sentence under law);

【General Convicts】

- Mitigation elements: No history of punishment;

- Aggravations: Use of Personal Trust Relationship

3. Determination of sentence;

In the past, the Defendant, like the mother of the victim who had been a year in the past, had sexual intercourse with the victim at night, using the locked person and the state of her failure to resist. In light of the relationship with the victim, the time of the crime, the place, and the content of the crime. In light of the relationship with the victim, there is a high possibility of criticism in light of the victim, and the Defendant used the victim's name, which is late time, to quasi-rape the victim. However, even though the victim appeared to have consented to the sex relationship, the victim first known that he would have consented to the physical contact with himself, and the victim was exposed to the second damage that the victim would appear in court and give testimony, and the victim wanted to be punished against the Defendant. In light of the above, the Defendant's responsibility for the crime of this case is very heavy.

However, the fact that the Defendant had no record of punishment prior to the instant case, and that the Defendant could not have committed a crime planned from the beginning is considered as a favorable condition.

In addition, the punishment shall be determined as per the disposition by comprehensively taking into account the various sentencing grounds shown in the arguments in this case, including the family relationship of the defendant.

Registration of Personal Information

Upon confirmation of conviction of a crime in the judgment, the defendant constitutes a person subject to registration of personal information pursuant to the main sentence of Article 42(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes and is obliged to submit personal information to the competent agency pursuant to Article 43

The Chief Judge of the Korean Judge;

Judge Maump

Judges Cho Jae-chul