2017Shap104. Rape of minors

A

Yellow Na-young (Public prosecution), Gangwon-gu (public trial)

Law Firm B, Attorney C

September 1, 2017

A defendant shall be punished by imprisonment for two years.

To order the defendant to complete the sexual assault treatment program for 40 hours.

Criminal facts

1. On December 25, 2015, from around 22:00 to around 22:30 of the same day, the Defendant, within the dwelling room of the Defendant, Jinju-si, through the “E”, around April 2015, the Victim F (Gain, Ga, 12 years old) of the Victim F (hereinafter referred to as the “E”) came to know of the Defendant’s 101-dong 802, and had sexual intercourse once with the Victim after he was discharged from all the clothes of the Victim.

Accordingly, the defendant has sexual intercourse with a person under 13 years of age.

2. At around December 25, 2015, the Defendant: (a) 23:00, the victim F, who was divingd in the above Defendant’s residence room, was “a defect only once”; (b) the Defendant, by hand, went off the victim’s chests and sound, exceeded the victim’s clothes, and had sexual intercourse once with the victim.

Accordingly, the defendant has sexual intercourse with a person under 13 years of age.

Summary of Evidence

1. Legal statement of witness G;

1. Investigation report (to make a phone statement of H);

1. The victim's collection and rescue of the suspect, the photograph of the victim's video recording, the digital analysis report, the details of the restoration of mobile phones, the expert opinion of the sexual violence case against the child or the disabled, the photographic data taken by the victim, the I message (the defendant, the H) submitted by the victim, and the I message (the victim and the defendant);

1. Determination on the assertion of the Defendant and the defense counsel regarding the mobile phone restoration CDs, each victim’s statement recorded CDs

1. Summary of the assertion

The Defendant, on the day of the instant case, did not have a place where the victim did not have any other party, and did not have any sexual intercourse with the Defendant’s dwelling. In addition, the Defendant did not know that the victim was under 13 years of age.

2. Determination on the first argument

In light of the following circumstances, the evidence examined by this court can be fully acknowledged that the defendant has sexual intercourse with the victim.

① The victim, under investigation conducted two times by an investigative agency, made a relatively concrete and consistent statement in the order of time between the Defendant and the Defendant’s house on the day of the instant case, and up to the sexual intercourse, according to the time order. The victim’s statement to the effect that the Defendant, as he/she had sexual intercourse with the victim, is relatively specific and distinct in the situation at the time of the Defendant’s clothes, the horses, and the sex relationship, has reached sexual intercourse with the victim.

② In relation to the statements made by the victim, the Seoul Integrated Support Center for Victims, the J also expressed the opinion to the effect that “A victim student is not defective in his/her ability to become aware of the age of 13 years, and his/her experience is memory and recorded, and there is no lack in expressing it in the language, and thus, he/she has credibility of his/her statement.”

③ Even according to the content of the I’s message divided by the victim’s wife, the Defendant is not specifically denying or impairing the sexual relationship itself, but merely disregarding the case.

3. Judgment on the second argument

In light of the following circumstances, it is reasonable to view that the defendant was fully aware that he/she was under the age of 13 in light of the evidence examined by this court:

① At the fourth month in which the victim first contact with the defendant was sent to the investigative agency, the victim said that the defendant himself was about 18 years, and the facts were about 19 years. Thus, the victim said that the defendant was about 13 years. The victim stated that the defendant was about 13 years in the first place. The victim's statement was the same as her first, and it was understood that the defendant was about 13 years in the first place. The victim's statement is consistent and credibility.

Since the first contact around April 2015, the Defendant and the victim sent out about 8 months from the time of the instant case, and the Defendant’s assertion that the victim did not know at all during his or her own school year is difficult to accept.

③ At the time of the instant case, the victim’s key amounted to 153 cm and weighted to 45 cm, and the Plaintiff’s body weighted to 45 cm as soon as possible, and was able to see that the Plaintiff was engaged in any carcing or behavior that could mislead the Defendant into age. Meanwhile, according to the video of the statement recording CD that recorded the victim’s statement, the victim did not appear to have any particular maturity compared to that of the Plaintiff, and only her age appears to be or rather her.

Application of Statutes

1. Article applicable to criminal facts;

Articles 305 and 297 of the Criminal Code

1. Aggravation of concurrent crimes;

The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (an aggravated punishment of concurrent crimes with punishment prescribed in Article 2 of the Criminal Act with heavier punishment)

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 21(2) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. The duty to register and submit personal information under 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 first offender is the defendant, the registration of the defendant's personal information, and the order to attend a sexual assault treatment course alone seems to have a certain degree of expectation of the effectiveness of recidivism prevention. In light of all circumstances, such as the defendant's age, family environment, social relationship, etc., as shown in the argument of this case, disclosure and notification orders have significant adverse effects on the defendant's disadvantage and anticipated side effects on the defendant's suffering from disclosure and notification orders; however, the effects of sexual crimes that can be achieved are relatively less likely to be achieved on the part of the defendant. However, the defendant's personal information cannot be disclosed or notified.

When a conviction on a crime in the judgment becomes final and conclusive, the defendant is a person subject to registration of personal information under the main sentence of Article 42 (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and he/she shall submit personal information to the competent agency pursuant to

Reasons for sentencing

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

2. Scope of recommendations according to the sentencing criteria;

(a) Basic crimes and concurrent crimes: Crimes of medication and rape of respective minors;

[Scope of Recommendation] General Criteria for Sex Offenses>> Type 2 (No. Rape) (No. 6-5 years to 13 years of age).

【Special Convicted Person】

(b) The scope of final sentence due to the aggravation of multiple offenses: Two years and six months from June to seven years; and

3. Determination of sentence;

The crime of this case is committed by the victim under the age of 12 who lacks the concept or judgment ability of sexual intercourse with that of the victim under the age of 12 who is a high school student and has sexual intercourse with that of the victim under the age of 12. In light of the victim's age or the circumstances of the crime, etc., the crime of this case is not likely to have a negative impact on the formation of the sexual identity and values of the minor victim, and the mental impulse between the victim and the victim's family members, etc., the

However, the defendant did not exercise any specific force to the victim during the course of the crime with the victim who was dead at the time of each of the crimes in this case, and the judgment ability is lower than normal.

It seems somewhat insufficient that there is no history of punishment for the same kind of crime before the instant case, and considering the fact that the Defendant has been punished for the same kind of crime before the instant case as favorable factors, such as the age, family relation, criminal record relation, character and conduct and environment of the Defendant, motive, circumstance and method of the crime, circumstances after the crime, etc., the lower limit of the recommended sentencing criteria shall be determined as per the disposition, by comprehensively taking into account various circumstances such as the Defendant’s age, family relation,

The presiding judge, judges, and the Yellow Constitution

Judges Jong-jin

Judges Kim Jae-han