2019Gohap284 Quasi-rape and indecent act by compulsion

A

Hand-time (prosecution) and secondhand trial (public trial)

Attorney So-young

May 22, 2019

A defendant shall be punished by imprisonment for not less than one year and six months.

However, the execution of the above punishment shall be suspended for two years from the date this judgment became final and conclusive.

The defendant shall be ordered to take a lecture for sexual assault treatment for 40 hours.

An employment restriction shall be ordered to a child or juvenile-related institution, etc. for three years.

Criminal facts

The defendant is a workplace company of the victim B (n, 26 years of age).

1. Quasi-rape;

On October 11, 2018, the Defendant got out of the country around 18:30, and dices together with the victim. The victim took the victim into the residence of the Dongjak-gu Seoul Metropolitan Government Defendant C.

At around 22:00 on the same day, the Defendant, while under influence of alcohol at the dwelling space of the Defendant, walked the fluor of the victim, frightd the chest of the victim, exempted the fluor and clothes of the victim, and inserted the fluor of the victim into the fluoral part of the victim.

Accordingly, the defendant has sexual intercourse with the victim by taking advantage of the victim's mental or physical state of difficulty.

2. Indecent acts by compulsion;

On August 1, 2018, at around 23:00, the Defendant forced the victim to commit an indecent act by a method of spreading the lower level of the victim’s door to 2:3 hand, who was going to work at the head office of Geumcheon-gu Seoul Metropolitan Government D Building E.

A summary of the steam

1. Partial statement of the defendant;

1. Examination protocol of the accused by prosecution;

1. The police statement concerning B;

1. Each request for appraisal (No. 18,20, 22 No. 18, 22);

1. Video-recording images of the F convenience store:

Application of Statutes

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

Articles 299 and 297 of the Criminal Act (the point of quasi-rape) and Article 298 of the Criminal Act (the point of indecent act by compulsion and the choice of imprisonment)

1. Aggravation of concurrent crimes;

Article 37 (Aggravation of Concurrent Crimes within the extent of aggregated of the punishment prescribed by the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (the punishment heavier than that prescribed by the crime of quasi-rape)

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following grounds for sentencing has been repeatedly taken into consideration for favorable circumstances)

1. Order to attend lectures;

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

1. Article 47(1) and Article 49(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes Exempted from an disclosure order and a notification order; Article 49(1) proviso of the Act on the Protection of Children and Juveniles against Sexual Abuse; Article 50(1) proviso of the Act on the Protection of Children and Juveniles against Sexual Abuse (the crime in this case alone does not have any criminal history against the defendant; the crime in this case alone cannot be readily concluded that the defendant is in danger of recidivism or recidivism; the defendant can only be deemed to have an effect of preventing recidivism; the defendant's age, character and conduct, motive, means and consequence of the crime in this case; the motive, means and consequence of the crime in this case; the expected interest and preventive effect of the disclosure or notification order; and the disadvantages and expected side effects of the defendant's entry, etc. shall be comprehensively considered.

1. An employment restriction order;

A. As to the crime of quasi-rape: the main text of Article 56(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse

B. As to the crime of indecent act by compulsion: the proviso of Article 2 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse; the main text of Article 56(1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 15452, Mar. 13, 2018)

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

As to the facts charged in the instant case No. 1, it is acknowledged that both the Defendant and the victim were breathly in the Defendant’s house under the influence of alcohol and that the Defendant was physically contacted with the victim’s inappropriate body, but there is no fact that the victim’s sexual organ was inserted in the victim’s sound book, and even based on the victim’s statement, etc., the Defendant’s sexual insertion is not proven, and thus, the crime of quasi-rape is not

2. Determination

According to the following facts and circumstances acknowledged by the evidence duly adopted and examined by this court, it can be recognized that the Defendant committed the quasi-rape by inserting his sexual organ into the sound part of the victim who is in the state of mental or physical disability or non-performance to resist, as stated in paragraph (1) of the criminal facts in the judgment below. Accordingly, the Defendant and the defense counsel’s assertion is rejected

A. On October 11, 2018, the Defendant and the victim met together with the Defendant and the victim, who were drank three illness at the time of the instant case by dividing them into dyp and drinking again. In light of the victim’s ordinary drinking volume, the victim’s dypnum fry, and the victim’s blood alcohol concentration measurement, etc., the victim appears to have been dyped at the time of the instant case.

B. At the time of investigation by the prosecution, the defendant stated to the effect that "the defendant should recognize the charge because he did not memory but did not have any reason to report that the victim was raped," and the prosecutor again asked the defendant whether the defendant was raped by inserting the victim's lower and lower panty panty who was under influence of alcohol in the ward where the defendant was living in the ward where the defendant was living in the defendant, and inserting the defendant's sexual organ into the victim's negative organ into the victim's negative organ, and led the defendant to "I would not see that the defendant will not memory as the victim's sexual organ as 142 pages" (the evidence record is 142 pages), which led to the confession of the crime of quasi-rape (the defendant at the time when he was the defendant, he stated that the victim's fingerd with the victim's negative part while put in put in the victim's finger at the time of the crime of quasi-rape, which can be viewed as a separate act from the crime of quasi-rape at the pre-rape stage or the crime of quasi-rape."

C. The victim stated in the investigative agency that "the victim was the head of the defendant at the time when he was in the mind of the victim, and that there was the defendant in the next place. The victim's clothes and clothes were exceeded. Although it was not possible whether or not there was a sexual intercourse, it was not known that the victim was exempted from all, and that there was damage to the sexual relationship without the victim's consent," and "the victim was about 2 to 3 days after the case (Evidence 53 pages, 57 pages of evidence record). The victim's statement is a reinforced evidence for the confession of the defendant.

D. Meanwhile, according to the gene appraisal document dated November 2, 2018 and November 15, 2018 by the National Science Investigation Agency, the victim’s quality contents, the victim’s panty negative part, the victim’s external part, and the victim’s external part are found to have detected the same DNA type as the Defendant at the inner part of the victim’s inner part of contact with the victim at the time of the instant case, and such fact also constitutes reinforced evidence for the Defendant’s confession.

Reasons for sentencing

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

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

(a) A crime of quasi-rape;

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

[Special Sentencing] Disapproval of Punishment (Discretionary Elements)

[Scope of Recommendation] Reduction Area, one year and six months of imprisonment to three years

(b) A second crime;

[Determination of Type] The first type (general indecent act by force) of the crime of indecent act by force (subject to 13 or more years of age) on the general standards of sexual crimes

[Special Convicted Persons] If the degree of indecent conduct is weak, no penalty shall be imposed (requirements for mitigation).

[Scope of Recommendation] Special Mitigation Zone, and Imprisonment with prison labor for less than one year: Imprisonment for one year and six months from June to six years (the maximum of crimes 1 + the maximum of crimes 1/2)

3. Determination of sentence;

In addition to the following circumstances, comprehensively taking account of the Defendant’s age, character and conduct, environment, motive and background of the crime, and circumstances after the crime, various sentencing factors as indicated in the arguments in the instant case, the sentence corresponding to the Defendant’s liability is inevitable, but the execution of the sentence is suspended considering the favorable circumstances.

A. Unfavorable circumstances: The instant crime was committed by the Defendant, under the influence of alcohol, by committing sexual intercourse with the victim, who is a subordinate employee of the lower court, who had been in a state of mental disorder or failing to resist, at his own home, and by compulsion of the victim on the other hand, and is not good in the nature of such crime.

B. The favorable circumstances: The Defendant led to the confession of the crime of indecent act by compulsion in this court. The Defendant does not want the punishment of the Defendant in the course of the investigation by mutual consent with the victim.

Defendant has no record of punishment except for a fine imposed once by fine.

Where a conviction becomes final and conclusive on each crime on the judgment that is a sex offense subject to registration and submission of personal information, the accused is a person subject to registration of personal information in accordance with 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

The presiding judge, the Gimology judge

Judge Lee Sung-sung

Judges Lee private-young

1) The facts charged were corrected or revised focusing on the part acknowledged as indecent act by force within the extent that does not disadvantage the Defendant’s exercise of the defense right.