2018Ma1115 Quasi-rape

A

Maok-young (prosecutions) and public trial on probation;

Law Firm Kcel

Attorney Shin Chang-chul, Counsel for the plaintiff-appellant

May 1, 2019

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

The defendant shall be ordered to complete the sexual assault treatment program for 40 hours.

An employment restriction shall be ordered to a child or juvenile-related institution, etc. for three years.

Criminal facts

On June 13, 2018, the Defendant, at the Defendant’s house located in Gwanak-gu, Seoul Special Metropolitan City, carried in drinking together with the Victim D (Influence, name, 23 years of age) who was fluenced in drinking house, and fluenced with them to rape the victim who was flucing in drinking house at the Defendant’s house at the Defendant’s house at the Defendant’s house at the Defendant’s house at Seoul Special Metropolitan City.

At around 06:30 on the same day, when the drinking place has been terminated, the Defendant dumped the victim kids while under the influence of alcohol on the part of the ward, and panty off the victim's kids and panty, and put the victim's fingers into the sound part of the victim, and continuously put the victim's breasts into the part of the victim's fingers, regardless of the victim's fingers, and inserted the victim's fingers into the sound part of the victim.

Accordingly, the defendant has sexual intercourse with the victim by taking advantage of the victim's mental or impossible condition.

Summary of Evidence

1. Entry of the defendant in part of the protocol of the first preparatory hearing;

1. Statements made by witnesses D in the first trial records;

1. Some of the statements made by the prosecution against the accused in the examination protocol of suspect;

1. Details of communication between the suspect and witness C;

1. A report on investigation (a response to a report on investigation and on the results of appraisal by a State);

1. A report on investigation (related to response to a request for appraisal with the State) and legal chemical appraisal report;

Application of Statutes

1. Article applicable to criminal facts;

Articles 299 and 297 of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

1. Order to complete programs;

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

1. An employment restriction order;

Article 3 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (Act No. 15352, Jan. 16, 2018); the main text of Article 56(1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (Amended by Act No. 15452, Mar. 13, 2018)

1. Article 47(1) and Article 49(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes Exempted from an order to disclose or notify information, the proviso to Article 49(1) and the proviso to Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (the defendant has no record of criminal punishment due to a sex offense, and the defendant's imprisonment with labor against the defendant, registration of personal information, orders to implement sexual assault treatment programs, restrictions on employment against children and juveniles-related institutions, etc. In addition, the defendant's age, environment, family relationship, social relationship, motive and consequence of the crime, motive of the crime, method and consequence of the crime, degree of disadvantage suffered by the defendant due to the disclosure or notification order, anticipated side effects on the prevention of sexual crimes subject to registration, and effects on the protection of the victim, it is deemed that there are special circumstances where disclosure or notification of the defendant's personal information should not

Judgment on the Defendant and defense counsel's argument

1. Summary of the assertion

In light of the fact that the defendant and the victim were sexual intercourse and immediately after that, the victim did not have the state of mental disorder or non-performance at the time of sexual intercourse.

The Defendant was aware of the consent of the victim to the sexual intercourse because the victim got dancing of the Defendant, she tried to get off her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her

The victim, who was aware of the other party’s sexual intercourse with C, seems to have been aware that he/she was the defendant last, but he/she was aware of the other party’s sexual self-determination. However, such circumstance alone cannot be deemed to have infringed on the victim’s sexual self-determination, and therefore, the crime of quasi-rape under

2. Determination

A. Relevant legal principles

1) Article 299 of the Criminal Act provides that a person who has sexual intercourse or commits an indecent act by taking advantage of the condition of a person’s mental disorder or impossibility to resist shall be punished as the crime of rape or indecent act by compulsion under Articles 297 and 298 of the Criminal Act. Here, “the state of refusal to resist” refers to the case where psychological or physical resistance is absolutely impossible or considerably difficult due to the reason other than the mental disorder under Articles 297 and 298 of the Criminal Act (see, e.g., Supreme Court Decision 2009Do2001, Apr. 23, 2009).

2) In order to constitute the crime of quasi-rape as referred to in Article 299 of the Criminal Act, not only an objective constituent element, but also an intentional act of having sexual intercourse with the victim’s perception and using the perception of the victim’s status, as a subjective constituent element, should be recognized. In a case where the defendant denies the criminal intent, the facts constituting such a subjective constituent element have to be proved by the method of proving indirect or circumstantial facts having considerable relevance with the criminal intent due to the nature of the object, and what constitutes indirect facts having considerable relevance, should be carefully observed and analyzed based on normal empirical rule to determine the link of facts (see, e.g., Supreme Court Decision 2005Do8645, Feb. 23, 2006).

C. In full view of the following facts and circumstances revealed by the evidence duly admitted and investigated by the court, the victim was in a state of mental or physical disability or inability to resist at the time of committing the instant crime, and the victim was sufficiently recognized as having sexual intercourse under the recognition of the Defendant. The Defendant and the defense counsel’s assertion cannot be accepted.

① On June 12, 2018, when the victim had two female-friendly women and two alcohols, he/she was able to drink together with two male persons (C and F) who were first considered at the second time on the following day. C and F proposed that the victim's day will drink together with C's house, and moved to C's house by getting a taxi. C sent text messages to the defendant living together on the same day at least three occasions with the victim's day.

② The victim’s happiness, C, and F arrived at C’s house at four hours a.m. on the same day, and the victim was divingd in a soar’s ward, and the victim’s friendships, C, and F followed the drinking place in the ward with the Defendant in the house.

(3) At least six hours on the same day, one of the F and the victim-friendly Gu return to the house and completed the drinking site, one of the remaining victims-friendly districts shall enter the room of C, and C sleeps into the room of the defendant.

The victim did not occur once until he arrives in the house, but was able to sleep in the sofabs.

④ The fact that the Defendant had sexual intercourse with the victim who was born in the sect around 06:30 on the same day is also recognized by the Defendant, and the result of genetic testing (Evidence Record 57 pages) is also recognized.

⑤ 피해자는 수사기관에서 이 법정에 이르기까지 '잠을 자고 있는데 누군가 키스를 했고 음부에 손가락이 들어오는 것이 느껴져 제지하려고 상대방의 손을 잡았는데 그 사람이 멈추지 않아서 희미하지만 아팠던 기억이 있다. 희미한 기억으로는 속옷 안으로 손이 들어와 가슴을 만졌던 것 같다. 키스할 때는 꿈인지 현실인지 전혀 인지하지 못하다가 그런 행위(유사성행위)가 있다는 것을 얼핏 느꼈을 때부터는 무서웠다. 술에 너무 많이 취해 있었고 얼핏 정신이 들었을 때는 무섭고 두려워 눈을 뜰 용기도 나지 않았고 제 몸을 지키기에는 제가 힘이 없다는 것을 느꼈고 일단 술에 너무 많이 취해 있었던 것 같다. 어떻게 관계가 끝이 난지조차 기억이 없고 끝나고 바닥에 떨어져 있던 바지를 입었던 기억이 흐릿하게 나며 바지를 입으면서 그 남자의 뒷모습을 보게 되었는데, 큰 키에 흰색 티셔츠를 입고 있었다. 그때까지 상황파악이 안된 상태였고, 바지를 입은 후에 바로 움직였는지, 조금 더 누워 있었는지 기억이 잘 안 나지만 화장실 갔던 것은 어렴풋이 기억난다. 화장실을 다녀온 후 정신이 들어 저에게 일어났던 일들에 대해 파악하고 너무나도 충격적인 기억들에 머리가 순간 하얗게 되어 그 집의 방을 모두 열어보며 흰 티셔츠를 입고 있던 피고인을 찾았다. 피고인에게 너인 거 다안다. 일어나라며 옷을 잡고 일으켰다. 피고인은 잠이 들었던 척 무슨 소리냐며 연기하다가 제가 울며 너 인거 다 안다고 하자 그제서야 피고인이 정말 미안하다고 했다'는 취지로 진술하였다.

The victim made a relatively concrete and consistent statement concerning the main part of the instant crime, and the content of the statement is particularly unreasonable and inconsistent.

6 The Defendant and the victim had sexual intercourse with the victim under the influence of the Defendant’s house. Nevertheless, the Defendant and the victim had sexual intercourse with the victim under the influence of alcohol. Under such circumstances, it is difficult to accept the Defendant’s argument that the victim consented to sexual intercourse.

7) The Defendant and the defense counsel asserts to the effect that the victim did not have any mental or physical condition, in light of the fact that the victim’s statement about the perception or appraisal at the time of sexual intercourse appears not to have made it impossible to express his/her intention to refuse the given situation, that the victim took sex actions by accepting the sexual relationship, and that the victim made a strong objection against the Defendant as long as there was no sexual relationship.

However, in light of the following: (a) the victim often drinks alcohol to her natives and new walls; (b) the victim first her drinking alcohol to her natives; (c) the victim was under the influence of alcohol to her natives, but the victim was diving in her home while drinking in the ward; and (d) the remaining people continued to drink in the ward; and (e) the victim did not take place once even though she did so; (b) the victim stated that her sexual intercourse itself is unsatisfy, while she did not memory in her sexual intercourse, while she did not memory her sexual intercourse; (c) the victim stated that her sexual intercourse itself was unsatisfy; and (d) the victim’s blood alcohol content at the time when 0.139% was under the influence of alcohol, it is determined that the victim was in a state of resisting sexual intercourse at the time of her sexual intercourse with her under the influence of alcohol; and (c) the victim did not interfere with the above part of put to place.

In addition, it cannot be said that the victim made a false statement by the victim that he/she was forced to resist the defendant after the victim got a sexual attack under the influence of alcohol by drinking, or that the victim was unable to resist at the time of sexual assault. The victim's statement that he/she was forced to resist cannot be said to be contrary to the rule of experience at the time when he/she became aware of sexual assault cannot be said to be contrary to the rule of experience.

8) The defendant's defense counsel asserts to the effect that there is a possibility that the victim could have been in a so-called "bloca" state of "bloca" which is unable to memory

After the victim joined with C, etc. at the bar, part of the work that had been in the drinking place until before the defendant's house was put into the defendant's house. However, in light of the fact that the victim continued to sleep with the defendant's house, and the defendant was unable to accurately memory the victim at the time of engaging in sexual intercourse with the victim, but the defendant stated that he was infinite, it is judged that the victim was in a state of loss of body and mind or failing to resist due to being under the influence of alcohol, rather than at the time.

⑨ 피해자는 화장실에 다녀온 후 피고인이 자신을 성폭행했음을 인지하고 정신이 들어 피고인에게 울면서 소리 지르고 피고인을 때리기도 했다. 이에 대해 피고인은 처음에 발뺌하다가 피해자에게 '미안하다. 안에다 사정하지 않았다. 신고만 하지 말아달라'고 말했다. 성관계 직후 피고인과 피해자의 이러한 행동들은 동의에 의한 성관계로 볼 수 없는 정황이다. 또한 피해자가 성적 수치심을 무릅쓰고 허위사실을 진술하여 피고인을 무고할 만한 특별한 사정이나 동기를 찾기 어렵다.

The Defendant and the defense counsel asserted to the effect that the victim deemed the victim to have complied with the sex relationship and was aware that the other party was the Defendant, and that the victim was aware of the fact that he was the Defendant. However, it is unreasonable for the Defendant’s argument that the victim responded to the sex relationship, and even if the victim expressed a sense to C at the drinking place, it cannot be deemed that the victim first consented to the unilateral sexual behavior of C in the situation where the victim was self-employed.

Reasons for sentencing

1. Scope of applicable sentences under Acts: Imprisonment for one year and six months to fifteen years; and

2. Scope of recommendations based on the sentencing criteria: Imprisonment with prison labor for a period of two years and six months to five years.

[Determination of Punishment]

General Rape

【Special Convicted Person】

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

3. Determination of sentence: Imprisonment with prison labor for a period of two years and six months;

The crime of this case is the first sexual intercourse with the victim in a state of mental disorder or non-performance due to the defendant's playing and under the influence of alcohol, and the crime of this case is not good in light of the circumstances and method of the crime. The victim seems to have suffered significant mental impulse, and the victim wanted to punish the defendant with severe punishment.

However, considering the favorable circumstances in which the defendant has no record of criminal punishment, the punishment shall be determined as ordered within the sentencing criteria, comprehensively taking into account various sentencing factors expressed in the arguments in this case, such as the defendant's age, character and conduct, motive, means and consequence of the crime, and circumstances after the crime.

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 pursuant to Article 42(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and is obligated to submit personal information to the competent authority pursuant to

Judges and Judges of the Court

Judge Song In-bok

Judges Park Tae-soo