2018Ma987 Quasi-rape

A

Nasung (Public prosecution) and Park Jong-hee (public trial)

Attorney Jeong Jong-young, Kim Young-chul, Cho Young-soo

May 10, 2019

A defendant shall be punished by imprisonment for not less than two years and six months.

The defendant shall be ordered to complete the sexual assault treatment program for 40 hours.

Criminal facts

On March 6, 2018, at around 20:0, the Defendant drinked alcoholic beverages with C, who works as mast in Gangnam-gu Seoul, with C, a woman, around 22:00, and moved to the residence of C and the victim located in E on March 7, 2018. The Defendant reported that the victim took off water from the ward and math from the room, and attempted to perform a sexual intercourse with C, but, at around 03:00 on the same day, she was exempted from the ward, and she went to the lower part of the victim’s lower part, who was divingd from the room, and was found to have sexual intercourse by inserting the victim’s sexual organ.

Accordingly, the defendant has sexual intercourse with the victim by taking advantage of the victim's failure to resist.

Summary of Evidence

1. Partial statement of the defendant;

1. Legal statement of witness D;

1. A narcotics appraisal report, a legal chemical appraisal report, and a gene appraisal report;

1. 112 reported case handling table;

1. F dialogueic picture (Evidence No. 11 of the evidence list);

Application of Statutes

1. Article applicable to criminal facts;

Articles 299 and 297 of the Criminal Act

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 16 (2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

1. Orders to disclose and notify information, and exemption from employment restrictions orders;

Article 47(1) and Article 49(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes; Article 49(1) proviso and Article 50(1) proviso of the Act on the Protection of Children and Juveniles against Sexual Abuse; Article 3 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (Act No. 15352, Jan. 16, 2018); Article 56(1) proviso (amended by Act No. 15452, Mar. 13, 2018) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 15452, Mar. 13, 2018) appears to have the effect of preventing recidivism. In addition, considering the Defendant’s age, environment, family relationship, method and consequence of a crime, disclosure or notification order and employment restriction order, disclosure of personal information and effect of the Defendant’s employment restriction order can not be determined or given to the Defendant.

Judgment on the argument of the defendant and defense counsel

1. Summary of the defendant's defense counsel's assertion

Under the agreement with the victim, sexual intercourse was made, and the victim was in the state of mental or physical disability or non-fluence, or the defendant did not have sexual intercourse by using it.

2. Determination

A. In determining the credibility of the statements made by the victim, etc. supporting the facts charged, the court shall assess the credibility of the statements, as well as whether the statements made by the victim, etc. conforms to the rationality, logic, morality, or rule of experience, physical evidence, or third party’s statements, and whether the statements made by the witness are consistent with those made by the witness himself/herself in the open court after taking an oath before a judge. The witness appearance and attitude of the witness who is going to make a statement in the witness examination protocol, such as the penance of the statement, and the fact that the witness statement obtained by directly observing various circumstances that make it difficult for him/her to record in the witness examination protocol after taking an oath before a judge. In cases where the statements made by the victim, etc. conforms to the facts charged, it shall not be rejected without permission, unless there is any separate evidence to deem that the statements made by the victim, etc. conforms to the facts charged objectively and objectively (see, e.g., Supreme Court Decision 2012Do2631, Jun. 28, 2017).

B. Examining the following circumstances acknowledged by the evidence duly admitted and investigated by this court in light of the aforementioned legal doctrine, the victim’s statement made in the investigative agency and this court has credibility, and according to the aforementioned statement and the evidence revealed earlier, it can be acknowledged that the Defendant had sexual intercourse with the victim who was unable to resist due to the Defendant’s exemption as stated in its reasoning. Accordingly, the above assertion by the Defendant and the defense counsel is rejected.

1) 피해자는 수사기관과 이 법정에서 C와 피고인을 만나 주거지에 간 이후 잠이는 경위, 피해자가 잠에서 깼을 당시의 상황, 피고인이 사정을 한 이후 피해자의 행동과 이에 대한 피고인의 반응, 112에 신고하게 된 경위 등 이 사건 범행의 주요 부분에, 관하여 비교적 구체적이고 일관되게 진술하였고, 그 진술 내용에 특별히 비합리적인 부분이나 진술 자체로 모순되는 부분이 없으며, 특히 이 법정에서 실시된 증인신문 당시 확인된 피해자의 진술 모습과 태도, 진술의 뉘앙스 등도 거짓말을 한다거나 특별히 과장하여 진술한다는 느낌을 받을 수 없었다.

2) 다만 잠에서 깼을 당시 피해자의 하의가 벗겨진 정도, 피해자의 자세 등 피해자의 진술에 일부 일관되지 않거나 불분명한 부분이 있는 것으로 보이기는 한다. 그러나 피해자는 상당한 양의 술을 마신 후(피고인의 수사기관 진술에 의하더라도 '피해자가 양주를 스트레이트로 마시는 것을 보고 피고인이 피해자에게 술을 드시고 온 것 같은데 술을 굉장히 잘 마시는 것 같다고 말을 했다'는 것이다) 피해자가 수면제 등을 먹고 잠이 든 사이에 피고인으로부터 준강간의 범행을 당하여 당황한 상태에서 세부적인 부분을 정확히 기억하지 못하거나 착각을 일으킬 가능성이 있고, 피해자가 시간이 지날수록 범행 내용을 추가하거나 특별히 과장한 것으로 보이지 않는다. 따라서 피해자의 진술이 일부 부분에서 일관되지 않거나 불분명하다는 사정만으로는 피해자 진술 전체의 신빙성을 부정하기는 어렵다.

피해자는 수사기관에서 '성관계 느낌이 드는 순간 "옥"하고 소리를 질렀고, 피고인이 사정을 했다. 너무 시간이 빨라 자던 중에 이미 성관계를 하고 있었던 것 같다'는 취지로 진술하였고, 이 법정에서는 '피고인이 성행위를 하고 있다는 것을 느꼈을 때 "윽"하면서 피고인을 밀쳐냈고, 동시에 피고인이 피해자를 누르고 3~5초 사이에 사정을 마쳤다'는 취지로 진술하였다. 위와 같은 피해자의 진술은 모두 피해자가 잠에서 깨어 피고인이 성행위를 하고 있음을 인식한 후 불과 몇 초 안에 피고인이 사정을 했다.는 내용이고, 이 법정에서의 진술은 그에 더하여 피고인이 사정을 할 당시 피해자가 소리를 내며 피고인을 밀쳐내고 성관계가 끝난 부분에 초점을 맞추어 진술한 것으로 보이므로 피해자의 수사기관에서의 진술과 이 법정에서의 진술이 크게 다르다고 보기 어렵다(피고인의 변호인이 지적하는 임의동행보고나 고소보충서에 기재된 진술은 피고인이 증거로 함에 동의하지 않았고 증거신청이 철회되었는데, 피고인의 변호인이 변론 요지서에 기재한 내용에 비추어 보더라도, '피해자가 정신을 차렸을 당시 이미 피고인이 성관계를 하고 있었다'는 취지로서 피해자 진술 전체의 신빙성을 부정할 만한 내용은 아니라고 보인다).

3) The victim made a statement to the effect that he was locked after drinking 9 eggs or 12 eggs while drinking dysium at the time of the instant case (a investigative agency stated that he was dysium 12 eggs or 12 eggs and stated that he was dysium 9 eggs or 12 others in this court). The victim’s blood and urine dysium sysium sysium sysium sysium 70 pages of investigation records. The instant crime was committed in a ward where the victim dysium dysium dysium dysium dysium dysium dysium dysium dysium dysium dysium dysium dysium dysium dysium dysium dysium dysium dysium dysium dysium dysium.

4) At the time of the instant crime, the victim was married with the married female at the time of the instant crime and became aware of the Defendant first at the time of the instant crime. In light of the circumstances leading up to the Defendant’s appearance in the drinking place as well as the dialogue between the Defendant and C, etc., the victim appears to have been thought that the Defendant and C thought that there was a mutual defense between the Defendant and the Defendant (the victim, on the day of the instant crime, set out in the written self-written statement prepared by the police as follows: (a) the Defendant and the Defendant have been able to grow well; and (b) there was no special circumstance to feel or friendly with the victim, except with the foregoing, there was no special sexual contact between the Defendant and the Defendant even according to the Defendant’s statement. In light of these circumstances, even if the victim was under contact with C at the time of the instant case, it is difficult to readily conclude a sexual intercourse with the Defendant under the empirical rule-based relationship with the Defendant in order to receive money after drinking.

5) After the Defendant’s assessment, the victim tried to report with a female in the toilet to remove the sound, and the Defendant shouldered the Defendant’s cell phone who did not return the cell phone, and reported that the Defendant was sexually abused at 112 on the cell phone after the Defendant got out of the cell phone. The aforementioned reporting process is natural, and there is no special motive or circumstance that makes it possible for the victim of a married female to be accused of the Defendant due to the fact of false damage, at the risk of being subject to criminal punishment due to the crime of false accusation or sexual humiliation.

In this court, the defendant stated that "the victim made a sexual intercourse with C, and the victim made a statement that he had a full payment, and that other entertainment tavern masium, known to him, would have made a testimony about this." After the conclusion of pleadings, the defendant's defense counsel submitted a record of the recording in which the content of the interview between G, which is another entertainment tavern mas with the defendant, was recorded. The content was that G, from the entertainment tavern proprietor he worked by "C," the victim was 50 million won and the victim was able to make a full payment. C was able to receive money from the victim. The above business owner and the victim were able to make a full payment. This means that "The victim was able to make a full payment to C with the defendant because he was locked." This means that "The victim was able to make a statement about the victim's payment to C, not that the victim made a false statement with the intent that the victim was able to have made a full payment." The purport of this is that the victim did not have made a false statement.

6) After reporting the Defendant, the victim stated to the effect that there was no demand for the agreement to the present time, and that “the agreement is not necessary, there is no idea that it will be agreed, and that the victim wants to punish the Defendant.” If the victim reported the sex relationship with the Defendant with the intent to make the agreement more harshly for the purpose of the agreement from the beginning, it is difficult to understand the reason that the victim would not be able to avoid the spirit at the time of the instant case, even though there is a possibility that the victim might not have a great quantity of alcohol, it

7) Meanwhile, immediately after the crime of this case was committed by the Defendant, the Defendant stated that “the Defendant had a sexual relationship with the victim by suggesting the victim to have a sexual relationship with the victim,” but did not express the victim due to C, and that he did not want to do so. The Defendant also made a statement that “the victim had a sexual relationship with the victim because he did not refuse to do so.” In the investigation agency and this court, the Defendant stated that “the victim had a sexual relationship with the victim,” and that “the Defendant had a sexual relationship with the victim by suggesting the sexual relationship with the victim.” As such, the Defendant’s statement on the background leading up to the sexual relationship with the victim is not consistent, and it is difficult to believe that the Defendant was sexually in view of the state of the victim who was able to drink a considerable amount of alcohol at the time of the instant case after drinking alcohol and drinking water exemption.

Reasons for sentencing

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

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

[Determination of Punishment] General Criteria for Sex Offenses, Type 1 (General Rape)

【Special Convicted Person】

[Recommendation and Scope of Recommendation] Basic Field, Imprisonment for 2 years to 5 years

3. Determination of sentence;

The following circumstances and the defendant's age, character and conduct, environment, family relationship, motive, means and result of the crime, and various sentencing factors specified in the arguments in the instant case, such as the circumstances after the crime, shall be determined as the order.

○ Unfavorable Circumstances: The instant crime was committed by the Defendant, having sexual intercourse with the victim who was unable to resist due to being exempted from water, and thus, the nature of the crime is not somewhat weak in light of the circumstances and contents of the crime. The victim appears to have caused considerable mental pain and sexual humiliation due to the instant crime, and was suffering from the suffering of the victim’s statement to the investigative agency as well as the victim who did not want to memory in this court. The victim is punished against the Defendant.

A favorable circumstances: The defendant has no record of being punished for sexual crimes before the instant case, and there is no criminal record of being sentenced to a suspended sentence or heavier punishment.

Registration and submission of personal information;

Where a judgment of conviction becomes final and conclusive on the facts constituting a crime in the judgment, the defendant is a person subject to registration of personal information pursuant to Article 42 (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and thus is obligated to submit personal information to the competent agency pursuant

The presiding judge, judges and assistant judges

Judges Doese

Judges Park Young-chul