Defendant

Prosecutor

Song Ho-ho

Attorney Jeong-jin

Ulsan District Court Decision 2003Gohap275 Delivered on April 23, 2004

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

A. The victim is a minor with a mental disability of the second-class disability who is only four to eight years of age, and at the time of committing each of the crimes of this case, the victim was in a state of failing to resist due to mental disability at the time of committing each of the crimes of this case, and the crime No. 1 of the facts charged was committed by the victim who was sexual intercourse with the victim, who is merely 13 years of age and three months of age, at night, at night, and was in a state of extreme fear of the victim. It is clear that at the time of committing the crime, the victim was in a state of failing to resist, and even at the time of committing the crime thereafter, the victim continued to have been in a state of failing to resist, and the court below found the victim not guilty of all the facts charged of this case.

B. In domestic affairs and even if the victim did not have a state of difficulty to resist, the crime of sexual intercourse with the minor under Article 302 of the Criminal Code is established, so the judgment of the court below which acquitted the defendant in this case where the victim revoked the complaint but the defendant should be sentenced to dismissal of prosecution, which affected the conclusion of the judgment.

2. Determination on the grounds for appeal

A. Summary of the facts charged

The Defendant was aware of the fact that a victim of a female non-indicted 1’s son who was living on the first floor of Defendant’s house (here, July 21, 86) was a second-class mental retardation baby and lacks the ability to discern things, and is willing to have sexual intercourse with the victim by using the second-class mental retardation disorder;

(1) At approximately 20:00 on October 199, the victim was placed in a mountain village near the Sungdo-dong, Ulsan-gu, Ulsan-do, U.S., and was placed on a forced floor, she was found to have been placed on the victim, and the victim was raped by sexual intercourse with the victim once;

(2) At the home of the victim located in Ulsan-gu, Ulsan-do, 2000, the victim sexual intercourses with the victim in the same manner as in the preceding paragraph with the victim in the same manner as in the same manner as in the case of the mixed house;

(3) at the time of the victim’s home on spring 2001, rapes the victim by having sexual intercourse with the victim in the same manner; and

(4) On July 30, 2003, the victim rapes in the victim’s house at the same time and in the same manner once with the victim, and

(5) Rape at the victim’s home at night on August 13 of the same year, with the victim having sexual intercourse once in the same manner, and

(6) at the home of the victim at a low time on the 16th day of the same month, rapes the victim by having the victim sexual intercourse once in the same manner; and

(7) at the home of the victim during the 20th of the same month, rapes the victim with sexual intercourses in the same manner with the victim in the same manner;

(8) At a low time on the 23th day of the same month, the victim had sexual intercourse with the victim one time in the same manner.

B. The judgment of the court below

The court below found the victim not guilty of all the charges on the ground that there is no evidence to support the fact that the victim was unable to resist due to a mental disability under Article 8 of the Act on the Punishment of Sexual Crimes and Protection of Victims, etc. (hereinafter “the above Act”), although the victim was found to have a mental disability falling short of normal disability, it did not determine that the victim did not have reached the state of her ability to resist.

C. Determination of party members

(1) As to the issue of whether the victim was in a state of failing to resist at the time of the crime of this case, Article 8 of the above Act provides that punishment shall be imposed on a person who has sexual intercourse with a female or committed an indecent act against another person by taking advantage of his/her physical disability or mental disability under Article 297, Article 298 of the Criminal Act, and Article 8 of the above Act provides that punishment shall be imposed on the crime of rape or indecent act by compulsion. The crime under Article 8 of the above Act is protected to protect sexual self-determination against a person who is unable to defend himself/herself due to mental or physical disability. The state of failing to resist under the above provision refers to cases where psychological or physical resistance is absolutely impossible or considerably difficult. Thus, in order to meet the elements of Article 8 of the above Act, the victim should have been in a state of failing to defend himself/herself due to a physical disability or mental disability, and such requirement should be interpreted separately in light of the fact that Article 302 of the Criminal Act provides for punishment for sexual intercourse or indecent act against a minor or a person with mental disability (see 200.).

(2) The following facts can be acknowledged as to the victim’s disability status in full view of the evidence duly adopted and examined by the court below and the evidence examined by the court below.

(A) The victim, registered on November 23, 1998, has a low intelligence index with the second-class mentally handicapped person of the mental retardation as stipulated in Article 2 of the Act on Welfare of Persons with Disabilities (Article 2(1) attached Table 1 of the Enforcement Rule of the Act on Welfare of Persons with Disabilities stipulates that the victim may train simple behavior of daily life from a person with intelligence index of between 35 and 49, and have an occupation which does not require special skills without complicated supervision and assistance," but the learning ability of an elementary school is limited to the third-4 grade level of elementary school. However, the victim's mother in the second-class and the third grade of the second-class, the victim's mother in the second-class and the third grade of the second-class, with knowledge that he should read and use the writing, and there is no big trouble in daily life, and for this reason, it is similar to the social mature level of the student (including investigation records, 39-29, 29-10, 29-10).

(B) The victim was undergoing sex education while attending an elementary school (54 pages of the trial record), while committing the crime as of the 1st day of the facts charged, the victim said that the victim did not have any birth to the non-indicted 1, and confirmed the pregnancy at the hospital, received abortion surgery (the investigation record 90,109 pages), and that the victim was unable to report to the non-indicted 1 and the defendant's sex relationship at the same room of the Ulsan (title omitted), the (the name of the non-indicted 1 and the non-indicted 2, a teacher in charge of the special department of the middle school), and that the victim was unable to report the sex relationship between the non-indicted 1 and the defendant at the same time, and the victim and the non-indicted 2 were allowed to attend the middle school at the second and third years (the investigation record 39 pages, the statement at the trial court).

(C) At the time of the attending a middle school, the victim received education in the special group at the time of the attending a middle school. Nonindicted 2 tried to move the victim to a general class because the victim was merely poor in learning ability, and in social maturity, the same as that of the students. However, Nonindicted 1 continued to remain in the special group on the wind that the victim wants to remain in the special group in order to obtain exemption from school expenses, and the victim was capable of serving in the vocational high school, but entered the special group of the commercial high school (title omitted) for the purpose of receiving exemption from school expenses (name omitted), and entered the special group of the commercial high school (name omitted, 102 pages, and Nonindicted 2 in the trial).

(D) Although the victim’s statements at the investigative agency and the court of the court below regarding each crime as stated in the facts charged have some parts of memory or reversal of the statements, most of the circumstances and contents at the time of each crime are memory.

(E) As a result of the special education evaluation committee on January 4, 2002, the whole intelligence of the victim was 40, the basic learning function was 40, and the basic learning function was 2.5, but the information processing capacity was low. As a result of the mental evaluation in the trial at the trial at the time of the trial at the time of the trial at the time of the trial at the time of the trial at the time of the trial at the time of December 2004, the entire intelligence was 47, and the simple performance that does not require a big intellectual ability shows a good response, but the basic common sense, problem solving ability, and the ability to clearly lower one’s ability to express his/her own expression ability and verbal expression ability. At the time of the said appraisal at the time of the said appraisal at the time of the time of 199.

(3) Next, as evidence that the victim was in a state of inability to resist at the time of each of the instant crimes, there is a result of Nonindicted 2’s statements in the investigative agency and the trial court and the mental assessment of the victim in the trial.

The purport of the statement by Non-Indicted 2 is that a mentally disabled person, such as the victim, has a strong tendency to absolutely obey it even without having a large number of force or ability to do so. The victim, considering that he/she had to obey the defendant, was in a situation in which he/she cannot resist, such as defense or sound, etc. at the time of each of the crimes in this case, and thus, he/she should be deemed to have been in a state of refusal to resist. The result of the mental appraisal is that " there is a physical disability to the extent that he/she is unable to resist by the demand for forced sexual act of the person who is standing, or by threat or threat, and physical and mental assault and intimidation are sufficient grounds for resistance to the victim." The above evidence merely argues that the victim, who is a mentally disabled person, cannot resist and easily be raped by the victim, and that the victim cannot defend himself/herself, and it does not appear that the victim's sexual self-defense is in a state of non-defense.

(4) The theory of lawsuit

In full view of the victim’s mental disability and degree, awareness of sex, etc., the whole contents of the victim’s testimony and the result of the above mental appraisal, and fact-finding with respect to the above mental appraiser, etc., it is insufficient to recognize that the victim at the time of the crime of this case was in a state of failing to resist as prescribed in Article 8 of the above Act, only with Nonindicted 2’s testimony and the result of the above mental appraisal (in particular, with regard to the crime No. 1 of the facts charged, it is not sufficient to acknowledge that the victim was in a state of failing to resist as prescribed in Article 8 of the above Act at the time of the crime of rape, as stated in the above facts charged No. 1 of the facts charged, and the victim’s mental disability and degree, and the above fact-finding, etc. at the time of the crime of this case No. 1 of the victim’s mental disability of 200, which is the victim’s mental disability after the crime of this case. Thus, it is difficult to find the victim not guilty as to the above facts charged.

3. Conclusion

Therefore, the appeal by the prosecutor is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Lee Dong-chul (Presiding Judge)