Defendant and the respondent for attachment order

On-site Kim U.S. and U.S. CD-ROMs (Trial)

Attorney Kim Gi (National Ship)

A defendant shall be punished by imprisonment for three years.

The information on the accused shall be disclosed through an information and communications network for five years, and the above information shall be notified.

To the person subject to the request for attachment order, an electronic tracking device shall be attached for five years.

Matters to be observed, such as the attached Form, shall be imposed on the person requested to attach an attachment.

피고인 겸 피부착명령청구자(이하 ‘피고인’이라 한다)는 2013. 1.경 인터넷 채팅사이트인 △△△△을 통해 지적장애 3급 및 정신분열증 등의 정신장애가 있는 피해자 김○○(여, 21세)을 알게 되었다. 피고인은 피해자가 정신적인 장애로 인하여 성적 자기결정권을 행사하기 어려운 점을 이용하여 자신의 집으로 유인하여 간음하거나 추행하기로 마음먹고, 2013. 1. 3. 21:35경 △△△△으로 피해자에게 ‘○○야 너가 말도 없이 걍 나가버려서 쪽지 남긴다, 너가 오면 재미있게 놀자 그나저나 어떻게 만원도 없을 수가 있니 언제 올꺼니?? 암튼 너가 오면 재미나게 놀자 알겠지^^’ 라는 등 쪽지를 수십 회 보내는 방법으로 피해자를 유혹하여 정신적인 장애가 있는 피해자가 자신의 주거지인 천안시 서북구 (주소 생략)로 오도록 하였다.

1. At around 22:00 on January 18, 2013, the Defendant: (a) informed of the fact that the victim’s horse dose is divided into the victim’s residence; and (b) the victim’s behavior is well-grounded in the outer view; (c) induced the victim to engage in sexual intercourse once by inserting the victim’s sexual organ into the victim’s negative organ; and (d) continued to engage in sexual intercourse in the same manner around 05:00 on January 19, 2013.

2. On February 4, 2013, around 23:30, at the same place as indicated in paragraph (1) on February 4, 2013, the Defendant: (a) informed of the fact that the victim’s horse speculation is divided into two parts; (b) the victim’s behavior is well-grounded; (c) enticed the victim as above; and (d) led the victim to an indecent act by compulsion by force by force, with the victim’s conspiracy and joint-use plane at that place.

3. The Defendant, at the same time and place as above 2.2. Around February 5, 2013, had sexual intercourse with the victim one time by inserting the Defendant’s sexual organ into the victim’s sound book, and continued to have sexual intercourse in the same manner as the victim’s sexual organ was inserted, with the awareness that the victim’s verbal speculation is divided into two parts of the victim’s speech and behavior is well-grounded and that the victim’s conduct was a intellectual disability.

Accordingly, the defendant has sexual intercourse with the victim who has a mental disability through fraudulent means and committed indecent acts.

The Defendant, as stated in the facts constituting a crime, committed a sexual crime on two or more occasions, and recognized the habit of such crime, committed a sexual crime against a person with a mental disability, and is likely to recommit a sexual crime.

1. Partial statement of the defendant;

1. Each legal statement of the witness Kim○-○ and Nonindicted Party 1 (Nonindicted Party in the appellate trial)

1. The second written statement of the suspect interrogation protocol of the prosecution against the accused;

1. Partial statement of the police interrogation protocol of the accused;

1. Each statement made by the police officer against Kim○-○ and Nonindicted 1

1. Video statement of the police recorded CD by Kim○-○;

1. Each entry in the records of seizure and the list of seizure;

1. Each description of the internal investigation report (the △△△△△ Party, the dialogue between △△△△△△△△, the details of the conversation, the train boarding passes), the investigation report (the counter-investigation of the victim ○○○○), the investigation report (Attachment of a confirmation document about sexual assault victims), the digital evidence analysis report, the expert opinion of the sexual assault case against the disabled, the investigation report (Attachment of victim’s opinion), the diagnosis report on the

1. The risk of recidivism and the recidivism of a sexual crime as indicated in the judgment: (a) the circumstances revealed by the above evidence and the written investigation prior to the request for an attachment order, i.e., the Defendant’s sexual intercourse and indecent act on several occasions; (b) the Defendant’s total risk of recidivism at 14 points as a result of the application of the evaluation of the risk of recidivism by a sexual offender against the Defendant; (c) the mental disorder level at 12 points in total as a result of the application of the examination of the risk of recidivism by a sexual offender against the Defendant; and (d) the mental disorder level at 12 points in total falls under the intermediate level; and (c) in light of the content of the instant crime committed against a sex offender against a female with a intellectual disability, it can be recognized that the Defendant had an abnormal and deviative sexual impulse against the sexual crime and the risk of recommitting a sexual crime.

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 6(5) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

Article 6(6) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Appointment of Imprisonment)

1. Aggravation of concurrent crimes;

Articles 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [Aggravation of concurrent crimes resulting from a violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (compacting with Persons with Disabilities) and Article 50 of the Criminal Act]

1. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Act (The following circumstances considered as favorable to the reasons for sentencing)

1. Order to disclose and notify;

Articles 37(1)1 and (3), and 41(1)1 and (3) of the former Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Amended by Act No. 11556, Dec. 18, 2012)

1. Orders to attach an electronic tracking device;

Article 9(1)2 and Article 5(1)3 and 5(1)5 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders

1. Imposition of obligations;

Article 9-2(1) of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders

1. Summary of the assertion

Although it is true that the victim has sexual intercourse with the victim, there was no sexual intercourse or indecent act by inducing the victim with a deceptive scheme, as stated in the facts of crime, even though the victim was unaware of the fact that the victim is a person with intellectual disability, and only was sexual intercourse under the agreement with the victim.

2. Determination

According to the records of this case, the victim divided the conversations with the defendant on the Internet hosting site, found the defendant's house by means of public transportation, and even after having been sexual intercourse with the defendant, there are some circumstances where the victim found the defendant as if he had sexual intercourse with the defendant as his own will and voluntarily had sexual intercourse with the defendant. However, in full view of the following circumstances, the defendant can be recognized as having sexual intercourse with the victim who lacks sexual decision ability due to intellectual disorder, such as inducing him to play together with his house, and inducing him to do so. Thus, the defendant's argument is not accepted.

(a) The state of the victim;

In light of the following circumstances, the victim seems to have been unable to exercise the sexual self-determination due to the intellectual disability at the time of the crime of this case.

(1) A victim has already undergone a disability diagnosis at the age of four, and currently intelligence index 54, social index 30.09, and social age is merely the age of 6.38 (class III of intellectual disability), and was hospitalized in a hospital five times due to a mental fission, etc.

② In the written opinion, Nonindicted 2, 2, in the sexual assault counseling center for persons with disabilities, stated that “The victim is aware of the background, but if he is a male and female sex, how the female's body changes if he is pregnant, and what he is known, etc., is very low in understanding of sex, and that the act of going up to him is not well aware of sexual assault.” In that sense, the victim seems to have a very lack of awareness of sexual assault.

③ Examining the statements in the police and the court, the victim’s ability to respond to sexual assault, such as repeated use of the same word, re-use of the questioning word, etc., was simple, and the answer to questions was extremely short and complicated, thereby falling into the ability to deliver opinions, such as a failure to well-satisfy a complex form of literature, and a considerable degree of attention appears to be insufficient to address sexual assault.

B. The defendant's awareness

In light of the following circumstances, the Defendant seems to have committed the instant crime by easily inducing the victim to commit the instant crime after being aware that the victim was a intellectual disability at the time of the instant crime, by using it, while being aware of it.

① In light of the content and attitude of the victim’s statement in the court, if a person has ordinary ability to make judgment, it would be easy for the victim to have a intellectual disability even in dividing the victim’s assistance into two parts. In reality, the victim, while finding the first place of the defendant’s office, was able to easily understand that there was a intellectual disability, even if the victim was either the victim, who lent a Handphone to the victim for the purpose of the defendant’s telephone conversations, and Nonindicted 3, who was her at the same time, was her one, and the victim was her only her one, and the victim was her only her one, and was her one was her one, and

② In view of the content that the Defendant sent to the victim by entering the victim’s house (i.e., “self-employed person” and “self-employed person” (hereinafter “self-employed person” and “self-employed person’s fee”) and the content of the side (i.e., she would see whether he/she will come to play at the front of the speech) the Defendant already treated the victim as a child who is not an adult woman or a person with intellectual disability.

③ In ordinary cases, it is common for both men and women to see or take meals at the first place at the police station’s first place. The victim appears in the police station’s “(the Defendant’s house on the date of the Defendant’s contact)” “I am off, .. am off, son, son, son, son, son, son, son, son, son, son, son, son, and son, and son off and put his clothes in the house (the Defendant’s house)”, “I am off, son, and son, I do not want to do so.” In this court, “I am a witness and the Defendant first come only after the Defendant’s house,” and “I am aware of the fact that the Defendant was unable to do so at the time of sexual intercourse” without any conversation between the Defendant and the Defendant’s house. It appears that I consistently pointed out that the Defendant was unable to do so at the time of the intermediate act.

C. Circumstances of the victim at the time of crime

Considering the following circumstances, the victim seems to have been sexual assaulted without resisting or refusing the defendant's behavior, leading the defendant's home at the time of his physical and intelligence superior position, leading the defendant's horse at the time, and leading the defendant's home two times or more.

① Generally, people with a mental retardation like the victim generally obeys this absolutely without having a superior person over his/her power or ability to do so, and is unable to receive any patriotic and interest from ordinary people, and thus, they are vulnerable to disguisedly or friendly harmful acts by holding a mind and decentralization and by using a friendly relation.

② The victim also consistently states in the police that “I see what is the reason for the Defendant’s house?” “I see,” “I see if I want to end? I see why I see? I see? I see? I see why I see the Defendant’s victim? I see? I see, “I see, I see, I see, I see, I see, I see, I see, I see, I see, I see, I see, I see, I see

③ Nonindicted 1, the victim’s mother, made a statement in the police and this court to the effect that “the victim was hospitalized at the hospital in question after he met the Defendant, without any justifiable reason,” and stated that the Defendant’s sexual intercourse was unilateral and the victim’s mental legacy was very serious, and the victim also made a statement to the police that “I would be able to take the Defendant back at the police station.”

(d) The attitude of the defendant after committing the crime;

After considering the victim’s speech that the Defendant would file a complaint against himself from the victim’s baby, the Defendant deleted all the messages sent and received to △△△△△△△△, and subsequently prevented the investigation agency from restoring the content of the message by replacing smartphones to the guard, and refusing to comply with the police’s repeated request for attendance. It is difficult to view that the Defendant’s sexual intercourse was committed under an agreement.

Where a conviction on the instant criminal facts becomes final and conclusive, the Defendant constitutes a person subject to registration of personal information under Article 32(1) of the former Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Amended by Act No. 11556, Dec. 18, 2012); thus, the Defendant is obligated to submit personal information to the competent authority pursuant to Article 43 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes.

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

2. Scope of recommended sentences according to the sentencing criteria;

(a) Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes;

[Determination of Punishment] The General Criteria for Sex Crime>>> The Act on the Prevention of Sex Offenses>

【Determination of Recommendation Area】 Basic Area

[Scope of Recommendation] Imprisonment of six to nine years

(b) Violation of the Act on Special Cases concerning the Punishment of Sexual Crimes;

[Determination of Punishment] General Criteria for Sex Crime>>> A sex offense>> (Indecent Act on the Protection of Persons with Disabilities (At least 13 years of age)

【Determination of Recommendation Area】 Basic Area

[Scope of Recommendation] Imprisonment of 1 year and 3 months to 2 years and 6 months

(c) Scope of recommended sentence based on the standards for handling multiple crimes: Imprisonment with prison labor for up to six years up to 14 months; and

[In accordance with the order of the upper limit of the sentencing criteria, the crime of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (compact between the disabled persons, etc.) under paragraph (1) of the holding, the crime of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (compact against the disabled persons, etc.) and violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Indecent Act by fraudulent means, etc.) shall be deemed concurrent crimes, and the multiple crimes shall be aggravated according to the standards for handling multiple crimes (the lower limit of the basic crime shall be applied, and the upper limit shall be 1/2, 1/3 each added

3. Determination of sentence: Three years of imprisonment; and

In light of the following: (a) the Defendant had inducedd a disabled woman who has difficulty in exercising his right to sexual self-determination due to intellectual disability to engage in sexual intercourse and indecent act by force; and (b) the Defendant had consistently maintained the attitude to exempt him from his responsibility by continuously denying the crime; and (c) the victim appeared to have suffered from the aftermathic reaction due to the crime of this case, and was under the mental and medical treatment by taking into account the following factors: (a) the victim ought to be punished by severe

However, considering the fact that the Defendant did not exercise force, such as assault and intimidation, in the instant crime, the Defendant did not exercise force against the victim, and that there has been no criminal record so far, and that the mother’s her mother is an cerebral disease, the punishment within the scope of the above recommended sentence is somewhat harsh for the Defendant, and thus, the sentence was determined as ordered.

[Attachment]

Judges Lee Dong-chul (Presiding Judge) (Presiding Justice)