2018 Highly Rape Attempted Rape, Defamation

A

Woryoung (prosecutions) and Kim Jong-hwan (Trial)

Attorney B (Korean National Assembly)

April 20, 2018

A defendant shall be punished by imprisonment for one year.

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

Criminal facts

1. Attempted rape;

On May 31, 2017, at around 06:20, the Defendant, while knowing that the husband of the victim, ○○○○ (n, 68 years of age), located in the Gwanak-gu Seoul Special Metropolitan City C and OOOO, was aware that the victim was her husband, who was her husband, was her husband, was her husband, and then she was her husband, she was her husband, who was her husband, to her 's her husband' and her her her her her her son's her her son.

Accordingly, when the victim puts a coffee into the ward table, the defendant 's 'Mah, soon', and the defective defendant 'Hahhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh

2. Defamation;

피고인은 2017. 6. 19. 14:00경 서울 관악구 D, 1층에 있는 'E부동산' 사무실 안에서 공인중개사 F 등이 듣고 있는 가운데 피해자의 딸 G에게 '엄마와 내가 서로 좋아하는 사이다, 엄마가 나를 챙겨주고 그래서 둘이 좋아했다'고 말하고, 이에 G이 '우리 엄마를 품어봤어요?'라고 묻자 '응, 엄마가 불러서 집으로 가서 뭘 했지'라고 말하였다.

However, as mentioned in paragraph (1) above, the Defendant merely attempted to rape the victim without any contact and did not have any sexual intercourse under the agreement of the victim with the Defendant.

Nevertheless, the Defendant undermined the honor of the victim by openly pointing out false facts as above.

Summary of Evidence

1. Partial statement of the defendant;

1. Legal statement of 000 victims of the witness;

1. Each police statement made to G, F, and H;

1. Investigation report (Adjustment of details of currency between a suspect and a victim);

1. Application of Acts and subordinate statutes, such as the type, etc. of elevator in which the suspect is a victim's residence after the occurrence of this case;

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

Articles 300 and 297 of the Criminal Act (a point of attempted rape), Article 307(2) of the Criminal Act (a point of defamation, or choice of imprisonment)

1. Attempted mitigation;

Articles 25(2) and 55(1)3 of the Criminal Act (the crime of attempted rape)

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (within the extent that the sum of the long-term punishments of both crimes prescribed in the crime of attempted rape with heavier punishment is added)

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. Exemption from an order for disclosure and notification;

Article 47(1) and Article 49(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, 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 history of criminal punishment prior to the instant case, and in light of the relationship between the defendant and the victim, it is difficult to readily conclude that the defendant is highly likely to recommit a sex crime against an unspecified female. Furthermore, the defendant’s sentence of imprisonment against the defendant, personal information registration, and orders to complete a sexual assault treatment program may have an effect to prevent recidivism to a certain extent. In addition, considering the defendant’s age, environment, family relationship, social relationship, motive and consequence of the crime, method and consequence of the crime, disclosure or notification order, the disclosure or notification order may have a special reason to disclose or notify the defendant’s personal information, as it is determined that the disclosure or notification of the defendant’s personal information may not be ordered).

Judgment on the Defendant and defense counsel's argument

1. Summary of the assertion

With respect to the crime of attempted rape of this case (hereinafter referred to as the "crime of this case"), the defendant did not have committed rape against the victim, and attempted sexual intercourse under mutual agreement with the victim, and only suspended because it did not occur.

2. Determination

In full view of the following facts and circumstances acknowledged by the evidence duly adopted and examined by this court, the credibility of the victim’s statement made in the investigative agency and this court is recognized. Thus, the Defendant’s attempt to rape the victim as stated in paragraph (1) of the judgment can be recognized. Accordingly, the Defendant and the defense counsel’s above assertion is not accepted.

1) From the investigative agency to this court, the victim included a relatively concrete and consistent statement about the main part of the crime, such as (i) the circumstance in which the Defendant was entering the victim’s house, (ii) the Defendant’s horses and actions to rape the victim, (iii) the method and time of responding to the victim’s actions, and (iv) the circumstances after the crime and the circumstance in which the Defendant reported the Defendant; and (v) the details of the statement contain any especially unreasonable or unreasonable parts or statements that are difficult to care without direct experience.

Although there are parts that are not consistent with the victim's statement regarding the detailed contents of the instant crime, there is a part or unclear part regarding the victim's statement, ① there is sufficient possibility that the victim is unable to accurately memory the detailed part of the crime in an elderly situation, ② the victim's statement at the police station was made on July 4, 2017 when one month has passed since the date of the crime, and the statement at the prosecutor's office was made on December 28, 2017 when about six months have passed since it was made on December 28, 2017. Thus, memory may be spread or inaccurate upon the lapse of time, and it is rather difficult to deny the credibility of the victim's entire statement solely on the above basis, taking into account the fact that the victim's accurate consistent statement with the detailed part of the crime by the police and the prosecutor's office can be seen as an exceptional.

2) The victim did not report or notify the victim of the crime of this case immediately after the crime of this case was committed, and the victim’s husband and wife stated in the judgment, as stated in Paragraph 2, that the victim had sexual intercourse with the victim from the defendant, and then the victim knew of the crime of this case in the process of confirming whether it was a fact.

However, the victim not only stated the facts of damage to an investigative agency due to a sense of sexual shame, etc., but also did not want family members or neighboring residents to know the crime of this case. The victim did not report at the investigative agency by 'picking and numerical slicking'. Until now, the victim made a statement that " how lives of lives are not reported once a police station" (Article 155 of the Investigation Records). It is difficult to see that such attitude of the victim is an exceptional case as the victim of sexual assault (Article 155 of the Investigation Records). Accordingly, the victim's statement is not denied the credibility of the victim's statement solely on the above basis.

Furthermore, as seen supra, it cannot be deemed that the Defendant and the victim were in an internal relationship. As such, it is difficult to deem that the victim stated the fact of false damage in order to escape the victim’s family members, such as his/her father and wife, from spreading the relationship with the Defendant.

3) The Defendant, at the victim’s home, called “the victim’s sexual desire to take a coffee,” and said, the Defendant tried to have sexual intercourse by saying that the victim was able to take off the Defendant’s hand and take off the clothes and take off the Defendant’s hand, and she was called “as soon as the Defendant was her,” and the victim tried to put the Defendant’s sexual organ into the part of the Defendant’s sexual organ with his hand, and then said, the victim was her humtho. I am. I am. I am. I am. I am. I am. I am. I am. I am. I am. I am. I am back the Defendant’s body and pan panty, and the Defendant was in the part of the victim’s body. In addition, the Defendant asserted that the victim was decent with the victim and the neighbors, and that it was not the victim’s body. It appears to have been in the same purport.

However, the victim appears to have been friendly to the defendant as a neighbor, and it does not seem that the victim had been friendly to the defendant. Rather, according to the monetary content between the defendant and the victim, the victim did not have any contact with the defendant first after March 2017, and there was no contact between the defendant and the victim, and the victim continued contact with the victim, even after the call was made, there was no special conversation (the defendant did not make any statement about the monetary content). Furthermore, even according to the defendant's statement, it was difficult to accept the defendant's statement even before the crime of this case, even if there was no specific conversation with the victim (the defendant did not make any statement about the monetary content), it was difficult to find that the defendant had no contact with the victim at least two times prior to the crime of this case (the 93 pages of the investigative record, the transcript of the defendant's newspaper, No. 4), and the victim's house did not have any contact with the victim at least nine to nine with the victim at first time (the 95th page of this investigation record).

On the other hand, if the victim, as alleged by the defendant, knew about the her child even when she attempted a sex relationship with the defendant, it seems natural behavior that he/she puts clothes immediately after the completion of a sex relationship with the defendant, and that he/she left his/her clothes rapidly and let the defendant wear them. It is also difficult to understand that the victim went back to a small place next to the her door, without being able to write off his/her clothes in his/her inside and outside of the country, without being able to do so.

In addition, the Defendant appears to have changed his statement before objective evidence when he stated that there was no telephone call from the victim after the instant crime was committed by the investigative agency, or that there was no room for finding the victim's house at the victim's office (Article 56-57, 96-97 of the Investigation Record), and that there was a question about the credibility of the Defendant's statement.

4) The Defendant and his defense counsel asserted to the effect that the Defendant suffered from various diseases, and there is no power to control the victim as shown in the facts charged. However, there is no statement or material that the Defendant’s movement is inconvenient, and instead, a licensed real estate agent F, who knows the victim or the Defendant well, made a statement that the Defendant runs well without stick (it is confirmed by CCTV images taken by the Defendant). Furthermore, the Defendant made a statement that the Defendant was going to go back to the 6th floor where the victim’s house was located on the day of the instant crime (as of the date of the instant crime, 94 pages of the investigation record). Moreover, it is difficult to accept the above assertion. Accordingly, it is difficult to accept.

1. Reasons for sentencing: Imprisonment with prison labor for up to 10 years;

2. Scope of recommendations according to the sentencing criteria;

(a) Attempted rape: A crime of attempted rape is not subject to the sentencing criteria;

B. Crimes of defamation: The sentencing criteria are not set.

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: Each of the instant crimes was committed by the Defendant to commit rape and attempted to commit rape, and was committed under the agreement with the victim, and thus, the honor of the victim was impaired, as if there were such facts. In light of the background and method of the crime, the Defendant’s attitude after the crime was committed, etc., the nature of the crime is not good. The victim appears to have caused considerable physical and mental pain and sexual humiliation as the instant case, and the honor of the victim seems to have been significantly damaged. Nevertheless, the Defendant did not make any effort to recover damage, and did not have been used by the victim.

○ A favorable circumstances: The Defendant has no record of criminal punishment before the instant case. The Defendant is an old age and seems to have not been healthy for all diseases, such as pre-permanent cancer. Where a conviction becomes final and conclusive with respect to attempted rape in the judgment that is subject to registration and submission of personal information, the Defendant 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 is obligated to submit personal information to the competent authority pursuant to Article 43

Meanwhile, with respect to the defendant, a sex crime which causes the registration of personal information under the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes and other crimes are concurrent pursuant to Article 37 of the Criminal Act and the punishment is determined pursuant to Article 38 of the Criminal Act. The period for registering personal information resulting therefrom is 15 years pursuant to Article 45(1)3 and (2) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes. However, in full view of the nature of each of the crimes in this case and the severity of the crimes, it is not recognized that the period for registering personal information of the defendant is unreasonable, and therefore,

The presiding judge, judges and assistant judges

Judges Park Jong-ro

Judges Park Jae-gu