208Gohap62 Violation of the Act on the Punishment of Sexual Crimes and Protection of Victims thereof (Heads)

Quasi-rape, etc. for pet people)

○ Kim

A person shall be appointed.

HIT (National Assembly Line)

April 18, 2008

The defendant shall be innocent.

1. Summary of the facts charged

피고인은 2008 . 1 . 6 . 00 : 20경 인천 부평구 에 있는 식당에 들어갔다 . 금방 나왔는데 마침 그 곳에 있던 정신장애 2급인 피해자 이○○ ( 여 , 35세 ) 가 처음 본 피고인을 따라 나와 피고인의 팔짱을 끼며 모텔로 가자고 하였다 . 피고인은 돈이 없다 . 고 하였으나 피해자가 자기 집으로 가자고 하자 같은 날 00 : 30경 부근에 있는 인천 부 평구 MIT에 있는 피해자의 집에 들어가 정신상의 장애로 피해자가 항거불능인 상태 에 있음을 이용하여 피해자를 1회 간음하였다 .

2. Determination

A. Article 8 of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof provides that "a person who has sexual intercourse with, or commits an indecent act against, a female by taking advantage of the state of disability or mental disability to resist, shall be punished under Article 297 (Rape) or 298 (Indecent Act by Compulsion) of the Criminal Act." This is an act that protects the right to sexual self-determination of a disabled person as a protected legal interest, and "the physical or mental disability has a state of disability or mental disability in which the physical or mental disability alone makes it impossible or considerably difficult to resist, as well as the case where the physical or physical disability in itself has a state of disability or mental disability to make it impossible or considerably difficult to resist. In determining whether there is a state of disability to resist, the mental disability should be examined not only the mental disability of the victim but also the relation between the victim and the perpetrator, including the offender, and the relation between the offender and the offender, and the content and method of the offender 20 (see Supreme Court Decision 200 through 70).

B. He returned to the instant case, first of all, according to the police statement of the victim, the police statement of the victim, the police statement of the victim's ○○, and the copy of the on-site photo and welfare card, the fact that the victim has intellectual ability which is merely an elementary school and lower grade level as a mental handicap 2, can be acknowledged. The fact that the defendant had sexual intercourse between the defendant and the victim was proved to the effect that the defendant had sexual intercourse with the victim from the beginning. Although the defendant first acknowledged the sex relationship with the victim as above, the defendant argued to the effect that he was unaware of the victim's sexual intercourse with the victim, but at least he was aware of the victim's mental disorder at least at the time of sexual intercourse. Thus, in order to find the defendant guilty, it should be acknowledged that the defendant has sexual intercourse with the victim in itself, or at least a mental disorder, which makes it impossible or considerably difficult to resist the victim physically due to mental disorder.

C. First, as to whether the defendant had sexual intercourse with the victim who is in a state of non-performance to resist in itself, it is sufficient to recognize that the victim had the sufficient ability to do so merely at the level of an elementary school grade. However, as seen earlier, the above evidence alone is insufficient to acknowledge that the victim was in a state of non-performance to resist in itself, and there is no other evidence to acknowledge this otherwise.

D. Next, we examine whether the defendant has sexual intercourse with the victim who is unable or considerably difficult to resist due to mental disorder as the main cause of the mental disorder.

(1) First of all, the victim’s statement in the police of the police is acknowledged as having sexual intercourse with the defendant, and the circumstances leading up to having sexual intercourse with the defendant or at the time of the defendant’s sex relationship.

태도 및 자신의 피고인에 대한 감정 등에 관하여는 다음과 같이 진술하고 있다 . 즉 , 피 고인이 피해자와 함께 피해자의 집에 이르기까지 그 어떤 강압적인 태도 또는 회유적 인 태도를 보이지는 않았다는 취지로 진술하면서 , 피고인이 피해자에게 무섭게 하였느 냐는 질문에 “ 아니 , 안 무서워 , 착해 ” , “ 아저씨가 뭐가 무서워 ” 라고 , 피고인과 성교할 때 싫다고 하지는 않았느냐는 질문에 “ 해달라고 했는데 ” 라고 각 진술하면서 , 피고인이 무섭게 해서 함께 잠을 잔 것 아니냐는 취지로 재차 확인해도 “ 뭐가 무서워 ” 라고 진술 하고 있고 , 이에 피고인이 때리지는 않았느냐는 질문에 “ 안때렸지 ” , 욕을 하지는 않았 느냐는 질문에 “ 욕을 안했지 ” 라고 진술하고 , 피고인과 잠을 잘 때 기분이 어땠느냐는 질문에 “ 좋아 ” 라고 진술하면서 , 피고인을 혼내줄까라는 질문에 “ 왜 혼내 ” , 피고인을 혼 내지 않았으면 좋겠느냐는 질문에 “ 응 ” 이라고 진술하고 있다 . 한편 , 피해자는 위 경찰 조사 당시 처음에는 성관계 사실 자체를 인정하기를 꺼리면서 경찰의 물음에 “ 남자하 고 여자하고 어떻게 뽀뽀를 해 ” 라고 하거나 , 피고인과 피해자 모두 옷을 입고 그냥 안 고 있었다고 진술하면서 둘러대다가 , 계속되는 물음에 비로소 인형을 사용하여 피고인 과 성관계를 가진 사실을 표현하기에 이르렀고 , 이전에 다른 사람 1명과 성관계를 가 진 사실이 있다고 하면서도 그 구체적인 상황에 관하여는 전혀 진술하지 않고 있다 .

(2) Next, ○○○○’s police statement made by the victim’s omission, the victim stated that the victim was confirmed to have a sexual intercourse with the victim at the victim’s room by the Defendant, but there was no specific statement as well as delivering the details that the victim had sexual intercourse with the victim as to the developments leading up to the sexual intercourse or circumstances at the time of sexual relationship.

(3) Lastly, considering on-site photographs and copies of welfare cards, it is only about the victim's mental disorder status itself, and it does not contain any content about the situation at the time when the defendant had sexual intercourse with the victim.

(4) In full view of the above circumstances, the victim is aware of a certain social and cultural meaning beyond the biological and physical meaning of sexual intercourse and can also express his or her specific perception and position as to sexual intercourse with a specific person. Accordingly, the above evidence alone is insufficient to recognize the defendant as having sexual intercourse with a victim who is in a situation where psychological or physical resistance is impossible or considerably difficult due to his or her mental disorder, and there is no other evidence to acknowledge this differently (in light of the above evidence, only the defendant appears to have sexual intercourse with the victim based on his or her active intent).

E. Ultimately, it can be seen that the defendant uses the victim's "mental state" in the sexual relationship with the victim, but it is difficult to regard the victim as using "the state of impossible to resist due to mental disorder". Thus, separate from the moral assessment, it cannot be viewed that the defendant is at least a violation of Article 8 of the Act on the Punishment of Sex Offenses and Protection, etc. of Victims.

3. Conclusion

Thus, the facts charged in this case constitute a case where there is no proof of crime, and thus, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act.

Judges of the presiding judge

Judges

Judges