The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. The lower court found the Defendant guilty of the instant charges, despite the fact that the Defendant did not recognize that there was a mental disorder to the extent that he could not exercise his right to sexual self-determination at the time of the instant crime, and that he did not commit the instant crime by using the victim’s failure to resist, and there was an error of misunderstanding of facts or misunderstanding of legal principles.

B. The lower court’s sentence on the assertion of unfair sentencing (two years and six months of imprisonment) is too unreasonable.

2. Determination

A. Article 6(4) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes provides that “a state in which a person is unable to resist due to a physical or mental disability” shall be deemed to include not only the case where the physical or mental disability itself is in a state of refusal to resist, but also the case where the physical or mental disability is the principal cause of the physical or mental disability and the case where the psychological or physical resistance is impossible or considerably difficult. Among them, in determining whether a mentally disabled person was in a state of refusal to resist, not only the mental disability of the victim but also the relation between the victim and the perpetrator, including the status of the perpetrator, surrounding circumstances or environment, the content and method of the perpetrator’s act, and the perception and reaction of the victim shall be comprehensively examined.

Furthermore, in light of the legislative intent of Article 6 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes intending to faithfully protect the disabled’s sexual self-determination, determination of whether there was “a state of non-performance” as above, the circumstance that the victim is a mentally disabled person should be fully considered. As such, in addition to the victim’s intellectual ability externally revealed, the degree of social intelligence and awareness due to mental disorder and its personal relationship is characterized.