2013Gohap1069 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

(a) Rape of the disabled person; the punishment, etc. of a sexual crime;

【Violation of the Special Act on Special Cases Concerning the Management of Disabled Persons】

A

Jin-Jin-Jin (Court of Prosecution), Jin-Jin-Jin (Court of Justice)

Attorney B

April 4, 2014

The defendant shall be innocent.

The summary of the judgment against the defendant shall be published.

1. Summary of the facts charged

The defendant is a homeless person who was living in the vicinity of the Seoul Station and lives therein with a homeless person, a mentally disabled person, or a person who passed the Seoul Station with verbal abuse, assault, etc.

(a) Kidnapping;

The Defendant was able to feel the victim C(the age of 38) with intellectual disability 3, who was an elderly person, who had been aware of about 10 years prior to being 12 years in the Seoul Jung-gu 122 square located in Jung-gu Seoul Central District, and was able to have sexual intercourse with the victim, who was flickly in the square of Seoul Central District, in a 122-dong Seoul Central District.

On July 11, 2013, the Defendant: (a) the victim refused to do so; and (b) the victim strongly expressed his intention to do so; and (c) there was a fit fit for the Defendant to obtain two or more times prior to the Defendant; (b) the victim’s hand was set up at a canter to the Ecomter located in Jongno-gu Seoul Metropolitan City, Jongno-gu, to prevent the victim from escaping.

Accordingly, the defendant transferred the victim to the actual control of the defendant against the victim's will for the purpose of sexual intercourse.

(b) Violation of the Punishment, etc. of Sexual Crimes Act;

At around 06:00 on July 11, 2013, the Defendant: (a) 06:00, the Defendant saw the victim to be off the clothes of the victim; and (b) saw the victim to be out of the clothes; (c) made the victim intending to be out of the body of the victim; (d) made the victim fright to be out of the clothes; (e) made the victim fright to be out of the clothes; and (e) caused the victim to be out of the body of the victim; and (e) fright the Defendant to fright the victim with his chest, and fright the Defendant, and fright the chest, thereby having sexual intercourse with the victim by inserting the sexual part of the victim, who is disabled, by force.

2. Defendant and his defense counsel’s assertion

The Defendant, like the facts charged in the instant case, had a sexual intercourse with the victim, but was unaware of the fact that the victim was disabled at that time, and the act was committed under the agreement with the victim.

3. Determination

A. Whether the defendant was aware of the victim's disability

According to the evidence duly adopted and examined by the court, it is recognized that the victim was judged as Grade 3 intellectual disability in around 2002; F, who was aware of the victim from around 201 in the police investigation process, knows that the victim was physically disabled in the victim's mental retardation third degree; and that "the victim seems to have suffered the same disability as soon as possible and unpsying;" and the defendant was aware of the victim for a long time before 10 years. However, in light of the following circumstances revealed by the record, it is difficult to readily conclude that the defendant was aware of the victim's mental disability at the time of the instant facts charged, and there is no other evidence to acknowledge it otherwise.

① Examining the victim’s attitude of testimony in this court, the content of testimony, and the details of the statement in the process of the prosecutor’s investigation, the victim seems to be relatively well aware of the substance of the question, to have a good understanding of the situation, and to have good memory of the past facts, and to have not been easy to recognize the victim as a disabled person).

② The victim stated that there is a clear distinction between sexual assault and sexual intercourse by agreement (70 pages of the witness examination protocol), that there was a fact that the defendant said that he/she would report to the police investigation process on his/her own (15 pages of the record of statement recording as to C prepared by the police), that the defendant could be reported as a crime of adultery if living together with the defendant (80 pages of the record of witness examination), and that even if the defendant reported a sexual assault to the Yongsan Police Station, it is a case that does not fall under the jurisdiction of the above police station, and thus the police did not report to the Yongsan Police Station because he/she did not investigate the case.

1) The victim allowed the card-based stringer in the vicinity of the Seoul Station to file a marriage report in order to use his/her card-based stringer (4 pages of the witness examination report), and stated that he/she had 13 previous records and entered the prison for the first time in 2001 (58 pages of the witness examination report).

2) The Defendant’s submission of evidence by March 20, 2014 is accompanied by the Defendant’s submission of evidence by the evidence (52 pages of the examination of the witness). The Defendant has legal knowledge to the extent that it is difficult to deem the person with mental disorder, such as (52 pages)

③ Around the Seoul Station, G in which the Defendant and the victims, etc. were aware of the fact that the victim was disabled persons prior to 20 years prior to put in place put in place put in place orders. However, this is merely a point of view that the body is not a mental problem, but not a normal one, and that the victim was unable to feel difficulties in communicating with ordinary victims, and that the victim’s oral expression is correct when asking.

(1) On July 11, 2013, the victim, along with the Defendant on July 1, 2013, used a certificate of disability to request the subway tickets to go to the Seoul Western District Court (Seoul Western District Court). At that time, the victim first known the Defendant that he was disabled (44 pages of the witness examination protocol). This also accords with the Defendant’s statement (309 pages of the investigation record) that the victim was aware that he was disabled when he finished the subway ticket.

⑤ Meanwhile, the testimony that the victim was aware that he was a disabled person because of the fact that he was aware that he was a disabled person, and the F made a statement that the victim could easily feel that he was a disabled person, and that he did not make a determination on whether he was a disabled person, and that he did not make a determination on whether he could easily recognize that he was a disabled person, and that he did not make a determination about whether he could easily recognize that he was a disabled person, unlike the police statement.

(6) Around 2003, the Defendant was the enemy of assaulting the victim, but the victim stated that the Defendant was forced to fluencing the victim due to such assault. However, such circumstance may serve as a factor for consideration in determining whether the Defendant exercised the power against the victim.

3) On the other hand, on June 13, 2006, the victim has been punished due to the fabrication of private documents, the uttering of a falsified document, or fraud, which can be said to be an intelligent crime at the Busan District Court on the other hand. A separate view from the fact that the victim may not be used as the basis for recognizing that the defendant was aware of the victim's disability.

B. Whether the Defendant exercised power, etc. in each of the facts charged of this case

As stated in the facts charged in the instant case, evidence 4, which corresponds to the fact that the Defendant, as against the victim’s will, took the victim into custody and has sexual intercourse with the victim by force, has made a statement at the victim’s investigative agency and this court. However, in light of the following circumstances acknowledged by the record, each of the above statements is difficult to believe it, and there is no other evidence to acknowledge it.

① The Defendant and the victim, together with the person “H, drinked alcoholic beverages in the Square in the Seoul Station, and called Eel. However, even though the Defendant did not refuse to take meals to the Defendant, the victim stated in the investigative agency and this court that he was forced to take her hand, but the Defendant did not take her hand during the cross-examination. However, the victim stated that “the Defendant was unable to take her hand in the process of the cross-examination,” or that he was able to take her drinking upon having her drinking from the date on which she was her drinking, and that he was her to take her drinking upon her drinking (23 pages of the protocol of the examination of the witness), and that she was her to take her drinking upon having her drinking with a her abund(23 pages of the protocol of the examination of the witness).

② The victim thought that she was drinking at a restaurant with the Defendant. The Defendant stated that she led the victim, her first subway vehicle, she moved to 3 her from the subway to the Ecom, but during the cross-examination, she stated that she was called her "I see" from the Defendant before leaving the Seoul Station during the cross-examination (28 pages of the examination record). In addition, the Defendant asserted that she went to the above telecom with the victim on the day of the instant case, she was going to go to the above telecom. According to the physical card details used by the Defendant on the day of the instant case, the part that she was her talked about 6,120 won on the day of the instant case at around 3:25,5:40 E4), among the legal statements made by F on the day of the instant case at around 5:16(2) of the Criminal Procedure Act, that she was sexually abused by the victim, not the Defendant, but the victim did not appear in the court and make a statement.

In light of the fact-finding results with respect to the Seoul subway station 1,00 won, it seems that it is difficult for the Defendant and the victim to move the three subway stations to 20 minutes and to approve the arrival of the telecom after moving the three subway stations from the subway stations to the eel located in Jongno-gu D, not immediately going from both the upper and lower parallel lines to 5:20, the first flight time of the Seoul Station 1, which is the date and time indicated in the facts charged in the instant case of the subway station 1, the subway station located in Sejong-ro 3, and the first flight time of the Seoul Station 1, which is the closing line to 5:20, the first flight time of the subway station as described in the instant facts charged of the instant case. (In addition, as seen above, the Defendant and the victim first moved to another female on the day of the instant case (as seen in the Gu and later, the Defendant and the victim found the said telecom).

③ The victim refused to enter the telecom with the Defendant, but the Defendant stated to the effect that: (a) the victim did not want to enter the telecom; (b) the victim did not escape; and (c) the victim did so in front of the door that the victim would have been able to take her hand with the victim; and (d) the victim would not escape; and (c) the victim would not escape because she knew her from the outside and talked about her home; (d) however, on the day of the instant case, I, the operator of the Ecomcomto, who viewed the Defendant and the victim, was natural and equal to the victim; (d) the Defendant did not appear to have been forced to attract the victim; and (e) the victim would have known her home; and (e) the victim would not have been able to do so.

(4) The above statement was made by the victim without memory of the defendant and the victim, one time before several months prior to the instant case, and the victim made a statement that the victim is representing the victim as male and female. The victim, in this court, made a question as to whether the victim has been representing another male and female victim as male, other than the defendant, and the victim made a statement to the above her mother, only with the third degree that the defendant was going to go to the above her mother line around March 15, 2014 during the instant trial, and it was her first, and there was no other male and the first time to go to the above her mother line (19 pages of the examination of the witness), but there was only a little difference between the defendant and the victim, and there was no room to reverse that statement (78 pages of the examination of the witness).

⑤ With respect to facts before and after the sexual intercourse between the Defendant and the victim, the victim stated that the Defendant was exempted from his clothes at the time of the initial police investigation, and that the Defendant was forced to report to the police at the time of forced sexual intercourse, and that the Defendant was sexual intercourses had been reported twice after him. In the prosecution investigation process, the Defendant was stated that the Defendant was off the clothes frightly, and that sexual intercourse was committed only once (15 pages, 32 pages, 35 pages, and 35 pages). In other words, in this court, the victim stated that the Defendant was forced to report that he was off his clothes, and that his sexual relationship was also two times (15 pages, 15 pages, 32 pages, and 35 pages).

④ Although the Defendant assaulted the victim around 2003, the above assault case was about 10 years from the instant case. On the day of the instant case, the Defendant tried to scam the victim with Busan Scam and scam together. The victim also told that scambling was scam, scam, scam, and scam by scaming the Defendant’s scam at the above telecom. The Defendant stated that scam, scam, scam, scam, and scam, scambling, scam, and scam while leaving the victim’s house after coming at the Eel and at the Seoul Western District Court, it is difficult to view that the Defendant and the victim were scambling the victim on the day of the instant case solely on the basis of the circumstance that the Defendant had sexual intercourses on several occasions before 10 years ago.

7) Furthermore, in the Seoul Western District Court on the day of the instant case, the victim arbitrarily left the said court with the Defendant left the said court on the day of the instant case, and confirmed that he did not contain money on the said bank (the crime of embezzlement was recognized and sentenced to fines for the victim), and if the Defendant had a sexual intercourse, such as the victim’s statement, and as the victim’s sexual intercourse, with the Defendant’s instructions, it is difficult to understand the fact that the Defendant would assault the victim who brought the Defendant’s bank back, even though it is easily anticipated that the Defendant would bring about the Defendant’s bank back, and that the Defendant had access to the said bank near the Seoul Western Station, regardless of the fact that the Defendant had access to the said bank at any time.

8 In addition, the victim asked questions as to whether he/she talked against the criminal defendant differently from the fact that he/she reported to the court in the process of cross-examination in the process of crime of embezzlement (59 pages of the protocol of witness examination). The prosecutor did not accurately understand the counsel's questions and did not answer other questions as to whether he/she is 's match' (62 pages of the protocol of witness examination), even though the defendant was living together with himself/herself, he/she did not see that the victim was living together with the defendant, and even if he/she did not contain money, he/she argued that 200,000 won is included in cash.

이로 인하여 자신이 벌금을 낼 상황에 처한 것이 괘씸하다고 진술한 점(증인신문조서 80쪽)을 보면, 피고인의 신고에 대한 보복의 수단으로 피고인으로부터 성폭행당했다고 신고하였다고 볼 여지도 있다.

9. The written request for a statement, such as an explanation prepared by the J of Professional Examiners, even if the victim reverses his/her statement or makes a false statement, it is merely a matter arising from the mental disability of the victim, and also includes the statement made by the victim as to the alternative summary of the case. However, in full view of various circumstances such as the victim’s attitude, past record, and content of the statement, it is difficult to deem that the victim’s statement was merely due to the victim’s mental disability. Thus, it is difficult to evaluate that the statement in the written request for a statement, such as the above explanation, etc., alone, is reliable.

C. Sub-decision

The conviction in a criminal trial ought to be based on evidence with probative value sufficient to have a judge determined that the facts charged are true to the extent that there is no reasonable doubt, and if there is no evidence to form such a conviction, even if there is doubt as to the defendant’s conviction, it cannot be determined with the benefit of the defendant (see, e.g., Supreme Court Decision 2008Do10096, Jun. 25, 2009). Considering the above circumstances, the evidence submitted by the prosecutor alone, when the defendant was aware that there was disability to the victim at the time of each act indicated in the facts charged, and it is difficult to view that all of the facts charged in the instant case, where the defendant had sexual intercourse with the victim by force after kidnapping the victim against the victim’s will, there is no other evidence to acknowledge it otherwise.

4. Conclusion

Thus, each of the facts charged in this case constitutes a case where there is no proof of crime, and thus, is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, and it is so decided as per Disposition by publicly announcing the summary of the judgment of the defendant under Article 58

The presiding judge shall be a judge.

Judges Kim Gung-sung

Judge Freeboard