2018Gohap1225 Quasi-Rape

A

The order of prosecution, the seating capacity, and the trial shall be held.

Attorney fee-charging, Damage and Disease, Application Mutatis Mutandis of the Head

May 10, 2019

A defendant shall be punished by imprisonment for a term of one year and eight months.

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

The defendant shall be ordered to place an employment restriction on children and juveniles-related institutions, etc. for three years.

Criminal facts

On August 1, 2018, the Defendant, at the drinking house near B located in Nowon-gu in Seoul Special Metropolitan City around the night of August 1, 2018, drinked with the victim C (the victim 23 years of age) and franked with the victim. On August 2, 2018, on August 2, 2018, the Defendant: (a) sent the victim to D hotel E in Seoul Special Metropolitan City, Nowon-gu, and attempted to have a sexual intercourse while drinking the victim’s chest; (b) the victim said that he would refuse to do so.

Nevertheless, the Defendant, while under the influence of alcohol, she laid his/her fingers into the drinking part of the victim.

Accordingly, the Defendant committed similar rape by taking advantage of the victim’s insane condition.

Summary of Evidence

1. C’s legal statement;

1. A written statement;

1. On-site CCTV CDs and CCTV images;

1. Investigation report (to attach photographs of D hotel cameras and CCTV images of elevators);

Application of Statutes

1. Article applicable to criminal facts;

Articles 299 and 297-2 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. Article 47(1) and Article 49(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes Exempted from an order to disclose or notify information; 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 Defendant has no record of criminal punishment prior to the instant crime; thus, it is difficult to readily conclude that there is a risk of recidivism against the Defendant; personal information registration and orders to complete a program, etc. against the Defendant to a certain extent, can be said to have the effect of preventing recidivism; and other circumstances such as the disadvantages and side effects likely to be suffered by the Defendant due to an order to disclose or notify information, and the age, occupation, family environment, social relationship, motive, means, and consequence of the instant crime, etc., the Defendant’s personal information shall not be disclosed or notified.

1. An employment restriction order;

The main sentence 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

The Defendant had not inserted the fingers into the part of the victim on the day of the instant case, and the victim did not have to resist at the time of the instant case.

2. Determination

Comprehensively taking account of the following circumstances revealed by the evidence adopted and examined by this court, it can be acknowledged that the Defendant was breadging a part of the victim who was unable to resist due to drinking around 02:30 on August 2, 2018.

가. 피해자는 수사기관에서 이 법정에 이르기까지 '2018. 8. 1. 친구와 함께 B 근처G에 갔는데, 피고인과 피고인의 친구가 여러 차례 함께 놀자고 제안하여 합석하게 되었다. 술 게임을 하면서 술을 계속 마셨고, 자신의 친구와 피고인의 친구가 먼저 집에가서 피고인과 단둘이 남게 되었으며, 피고인이 계속 술을 권하여 자신이 잠이 들 정도로 만취하였다. 주점 밖에 어떻게 나가게 되었는지는 잘 기억이 나지 않고, 피고인이 계속 "쉬었다 가자"고 말을 하였던 것이 기억난다. 피고인과 택시를 타고 모텔로 들어가게 된 상황에 대하여도 잘 기억이 나지 않는다. 모텔방에 들어가서는 너무 졸리고 피곤해서 자려고 침대에 누웠는데, 피고인이 위에 올라와서 키스를 하면서 계속 스킨십을 시도하길래 "싫다. 잘 거다."라고 얘기를 했는데, 피고인이 "알았어, 알았어"라고 말하면서도 계속 가슴을 만지고 키스를 하였다. 그래서 자신이 "진짜 하지 말라고, 진짜 잘 거라고, 싫다."라고 말하며 화를 냈고, 그 이후 잠깐 잠이 들었다가 밑에 느낌이 이상해서 눈을 뜨게 됐는데, 피고인이 성기에 손가락을 집어넣고 있었다. 너무 놀라서 몸을 일으키려고 했는데 피고인이 못 일어나게 팔로 몸을 누르더니 "가만히 있어라. 안 아프게 해주겠다."라고 이야기하면서 계속 음부 안에 손가락을 여러 번 넣었다 뺐다 했다. 너무 무서워서 울면서 하지 말라고 하니까 그제야 피고인이 멈췄고, 자신이 피고인을 밀치고 가방과 신발을 손에 들고 모텔방을 급하게 뛰쳐나오게 되었다.'라는 취지로 진술하였다. 이러한 피해자의 진술은 주요 부분이 대체로 일관되어 있고, 구체적이어서 직접 경험하지 않고서는 진술할 수 없는 내용이 포함되어 있으며 합리적이지 않거나 경험칙에 반한다고 볼 만한 내용이 없어 신빙성이 높다.

B. The victim was unaware of the Defendant before the instant case, and the victim did not appear to have any motive to mislead the Defendant by making a false statement unfavorable to the Defendant, and there is no circumstance to deem that the victim made a false statement in order to obtain pecuniary profits, such as demanding the amount of agreement after the occurrence of the instant case. In addition, the victim immediately filed a complaint against the Defendant on the date of the instant case, and the circumstances leading up to the filing of the complaint are not found.

C. The objective circumstances before and after the instant case identified in CCTV images also supported the victim’s statement.

1) Examining CCTV images (Evidence No. 15) taken by the Defendant and the victim when entering the telecom on August 2, 2018, around 02:14, when the Defendant and the victim met, the victim was able to take the front of the telecom at the first floor of the telecom, to take the front of the telecom, and to take the front of the telecom, and to take the cryp or to sit the cryp, to the cryp while leaving the victim who want to go beyond the Defendant. The victim’s cryp and cryp were examined, and the cryp was examined, and the cryp was not the center. The Defendant’s cryp was confirmed to put the credit card inside the cell phone cryp to the victim’s mobile phone cryp. Even after paying the telecompher from the cryp to the victim’s mobile phone cryp to the victim’s cryp, and then the victim’s cryp to the phone.

2) Examining CCTV images (Evidence No. 15) taken from the elevator immediately after the victim started from the telecom on August 2, 2018 at around 02:44, the victim saw the CCTV image (Evidence No. 15) taken from the telecom, the victim gets on board the elevator at the top of the heatr, while one hand strings the face with the other hand, and the faces the face. The above pages are consistent with the statement that the victim got off a similar rape, makes the victim unfolds, and does not cause the defendant to run the telecom.

D. The Defendant’s statement is difficult to believe that there is any content that is not consistent with the objective circumstances revealed, and that the statement is reversed or goes against the rule of experience in important part.

1) 피고인은 수사기관에서 '모텔방에서 성관계를 하려고 하였는데, 피해자가 "20분만 쉬다가 하자"고 말하였다. 잠시 후 피해자의 옷 단추를 두세 개 풀었는데, 피해자가 눈을 뜨고 있었음에도 별다른 거절의 의사를 표시하지 않아서 동의를 한다고 생각하였고, 바로 팬티 쪽으로 손이 내려갔는데 피해자가 "하지 마."라고 이야기 하여, 자신이 "알았다. 불쾌했으면 미안하다."라고 하며 손을 뗐다. 그러자 피해자가 "오빠 너무 저돌적 이야. 나 집에 갈래."라고 하면서 밖으로 나갔다. 자신이 피해자에게 "단추라도 잠그고 가."라고 이야기 하였고, 피해자는 "내가 H 할게."라고 대답하였다.'라고 진술하였다(증거기록 38, 125~126쪽). 그러나 피고인의 진술에 따르면 사건 당시 강압적인 분위기가 전혀 아니었다는 것인데 앞서 CCTV 영상에서 본 바와 같이 피해자가 급하게 맨발로 모텔방에서 나와 엘리베이터에 탑승한 이유가 설명되지 않는다. 또한 피고인과 피해자는 이 사건 당시 서로 연락처도 주고받지 않았던 사이였는데(증거기록 40, 126쪽) 피해자가 급하게 모텔방을 나가면서 "내가 H 할게."라고 이야기 하였다는 것은 믿기 어렵다.

2) The Defendant, at the police station, stated that “the Defendant entered the police room when the Defendant and the victim entered the room.”, “The Defendant did not satisfe the victim, and the victim took a normal walk.” However, the evidence was recorded 42,63-64 pages, and that the Defendant got into investigation after viewing CCTV images in the prosecution. The same was not clear on the day of the instant case because the Defendant did not at all think that the CCTV would be subject to criminal complaint, and thus, the memory was not clear on the day of the instant case.” The Defendant reversed the statement that “I think that the victim was under the influence of alcohol” (Evidence No. 124 pages).

In addition, at the time of the investigation of the police first time, the defendant called "the victim should contact later," and he saw the victim to go ahead of the elevator (38-39 pages of the evidence record). However, in the two-time investigation of the police, the defendant asked the investigator who asked the victim to go back at the time of the victim's coming back, and asked the investigator's question at the police second investigation, and changed the statement that "at the time of the investigation, the situation does not need to be forgotten accurately (68-69 pages of the evidence record)."

3) The Defendant, at an investigative agency, expressed that the victim was a victim’s telephone within the telecom, and that the victim was the same as having telephone conversations (Evidence No. 38,125 pages). However, examining the victim’s telephone call details at the time of the victim, the Defendant’s statement was inconsistent with objective circumstances (as a result of the inquiry into the victim’s witness, the victim’s witness examination record No. 15 pages).

E. The J, which was present at the drinking place with the Defendant and the victim, stated in the court that the victim had never been able to drink at all at the time when G left the drinking place, and that the victim did not have a clear distance. However, the J himself took to a certain extent to the extent that the victim did so, and the victim stated that she would drink more than her, the crime of this case occurred more than 2 hours and 30 minutes after J took the main point, and the J was likely to make a favorable statement to the Defendant in favor of the Defendant. In addition, considering the status of the victim confirmed in CCTV video as above, it is difficult to view that the victim did not have a state of refusal to resist at the time of committing the crime based on the aforementioned statement by the J.

Reasons for sentencing

1. Scope of applicable sentences under law: Imprisonment with prison labor for one year to 15 years;

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

[Determination of Punishment]

General Rape

【Special Convicted Person】

[Recommendation and Recommendation Scope] Basic Field; Imprisonment from August to April 3 (sex similar rape shall be included in one type; imprisonment from June to five years shall be mitigated to 2/3).

3. Determination of sentence;

In the case, even though the Defendant expressed clearly his intent to refuse the victim’s refusal, the Defendant seems to have caused considerable sexual humiliation. Nevertheless, the Defendant did not take measures to recover damage, and the victim wanted to punish the Defendant with severe punishment.

A favorable condition for ○: The defendant has no past record of criminal punishment.

○ Other factors such as the Defendant’s age, character and conduct, environment, background and motive leading to the Defendant’s crime, circumstances before and after the commission of the crime, etc., and the sentencing conditions specified in the instant records and arguments, shall be determined as ordered.

Registration of Personal Information

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

The presiding judge and the deputy judge;

For judges:

Judges Gangseo-gu