[1] The meaning of "in a state of being unable to resist due to physical or mental disability" under Article 8 of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof, and the criteria for determining whether a mental disability has a state of refusal to resist due to the main cause or mental disability

[2] In a case where the defendant, without exercising any specific force, has sexual intercourse with a mentally disabled woman who is merely 4 or 8 years old, and did not make any particular resistance against this, the case holding that the act of sexual intercourse with the victim's mental disorder using the victim's state of failing to resist due to the mental disorder constitutes "a state of resistance" under Article 8 of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof

[1] Article 8 of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof provides that "a person who has sexual intercourse with or commits an indecent act against a female by taking advantage of a state of disability or mental disability that does not have to resist, shall be punished under Article 297 (Rape) or 298 (Indecent Act) of the Criminal Act." This is protected as a legal interest in the sexual self-determination right of a disabled person. It was originally enacted by Act No. 4702 of January 5, 1994 at the time of the enactment of Act No. 5343 of Aug. 22, 1997, which simply provided that "I shall use the state of disability that does not have to resist due to physical disability, mental disability, or mental disability specified in the Act on Welfare of Persons with Disabilities, thereby expanding the scope of the disabled person. Considering this point, the above provision’s amendment aims to include not only the victim’s physical disability or mental disability but also the mental disability’s mental or physical disability.

[2] In a case where the defendant, without exercising any specific force, has sexual intercourse with a physically handicapped woman who is merely 4 or 8 years old and did not make any particular resistance against this, the case holding that the act of sexual intercourse with the victim's mental disorder using the victim's state of failing to resist due to the mental disorder constitutes "a state of resistance" under Article 8 of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof

[1] Article 8 of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof / [2] Article 8 of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof

Defendant

Prosecutor

Attorney Yellow-gu

Busan High Court Decision 2004No315 delivered on April 20, 2005

The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. Article 8 of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof provides that “A person who has sexual intercourse with, or commits an indecent act against, a female by taking advantage of a state of disability or mental disability to resist, shall be punished under Article 297 (Rape) or 298 (Indecent Act) of the Criminal Act.” This legal interest is to protect the right to sexual self-determination of, and at the time of enactment by Act No. 4702 of Jan. 5, 1994, the term “using ........................, at the time of enactment of Act No. 4702 of Jan. 5, 1994,” was amended to the above provision by Act No. 5343 on Aug. 22, 1997. The above legal amendment aims not only to have the victim’s physical disability or mental disability defined in the Welfare of Disabled Persons Act but also to have extended the scope of the victim’s physical disability or physical disability.

2. According to the evidence duly admitted by the court below, the defendant was aware that the victim had no mental disorder as stated in the facts charged, and was frightened to the victim, or was placed on the victim's forced floor, and sexual intercourse over eight occasions with panty, by using any crepan crepan crepan crepan crepan crepans, and the victim was disabled women with mental disorder whose intellectual ability is 4-8 years old, and whose ability to express his own opinion and resolve it is clearly low, and those with mental disorder such as the victim did not know that they had superior power or ability to do so, and the defendant did not appear to be able to use the victim's frighten so far as she did not know that she did not have sexual intercourse with the victim, and the victim did not appear to have any such violence as the victim did not appear to have been frightened, and the victim did not appear to have been frightd to the victim's own residence or to have any panty relation with the defendant (the victim was fright).

In light of the above legal principles and the above facts, the victim's intellectual ability or problem resolution ability of the victim, the character of the person with mental disorder, the contents and attitude of the defendant and the victim at the time of the defendant's act of sexual intercourse, and the environment surrounding the victim at the time of the act of sexual intercourse in this case, etc., it shall be deemed that the victim was in a situation where it is impossible or considerably difficult to execute the refusal or resistance against the defendant as the main cause of the mental disability, and therefore, it shall be deemed that there was "a situation where resistance is impossible" under Article 8 of the Sexual Exposure Act.

Nevertheless, the court below maintained the judgment of the court of first instance that acquitted the defendant of each of the facts charged in this case on the ground that the victim cannot be deemed to have "the state of resistance impossibility" due to a mental disorder. Thus, the court below erred by misapprehending the legal principles on Article 8 of the Sexual Exposure Act, which affected the conclusion of the judgment. The ground of appeal on this point is with merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)