The degree of assault and intimidation to establish the crime of rape, and the standard for determining whether assault and intimidation are likely to make it impossible or considerably difficult to resist the victim’s resistance / Whether there is a causal link between assault and intimidation in the crime of rape (affirmative), and whether assault and intimidation must be prior to the act of sexual intercourse (negative)

In order to establish the crime of rape, the perpetrator’s assault and intimidation must be such as to make it impossible or considerably difficult to resist the victim’s resistance. Whether assault and intimidation were to make it impossible or considerably difficult to resist the victim’s resistance should be determined by comprehensively taking into account all the circumstances, including the content and degree of assault and intimidation, the background leading up to exercising force, the relationship with the victim, and the situation at the time of sexual intercourse, etc. In addition, the causal relationship between assault and intimidation and sexual intercourse in the crime of rape exists, but assault and intimidation are not necessarily prior to sexual intercourse.

Article 297 of the Criminal Act

Supreme Court Decision 2000Do5395 Decided February 23, 2001 (Gong2001Sang, 818) Supreme Court Decision 2001Do4462 Decided October 30, 2001 (Gong2001Ha, 2645)

Defendant and the respondent for attachment order

Prosecutor

Attorney Kim Jin-sung

Seoul High Court Decision 2016No1882, 2016 Jeonno130 decided September 29, 2016

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

The grounds of appeal are examined.

1. Defendant case

A. In order to establish the crime of rape, the perpetrator’s assault and intimidation must be such as to make it impossible or considerably difficult to resist the victim. Whether the assault and intimidation were to make it impossible or considerably difficult to resist the victim’s resistance should be determined by comprehensively taking into account all the circumstances, including the content and degree of the assault and intimidation, the developments leading up to exercising force, the relationship with the victim, and the sexual intercourse at the time of the assault and intimidation (see, e.g., Supreme Court Decisions 2000Do5395, Feb. 23, 2001; 2001Do4462, Oct. 30, 2001). In addition, the causal relationship between assault, intimidation and sexual intercourse in the crime of rape should be established, but assault and intimidation should not necessarily be prior to the sexual intercourse.

B. (1) The summary of the facts charged in the instant case is as follows: “The Defendant demanded the victim to engage in sexual intercourse at the home of the victim living together on February 17, 2016, and the victim refused it on the ground that it was in a fluence, etc., the victim refused it on the ground that it was in a fluence, which led the victim not to be added to sexual intercourse, and then forced the victim not to engage in a self-defense act subsequent to the victim’s arms, which led the victim to a fluorily divided the victim’s body with his arms into the chest, to prevent the victim from getting out of mind, and then raped once by inserting his sexual organ into the victim’s sexual organ.”

(2) After recognizing the circumstances as indicated in its holding, the lower court upheld the first instance judgment which acquitted the Defendant of the primary charges of this case on the ground that it is difficult to view that the Defendant had proved without reasonable doubt that the victim had exercised the physical power to make it impossible or considerably difficult to resist the victim at the time of sexual intercourse, even though the Defendant explicitly expressed the Defendant’s intention to refuse inserting sex, and the Defendant had committed sexual intercourse against the victim by inserting his sexual organ into the victim’s sexual organ even though the Defendant promised not to inserting his sexual organ, but the Defendant’s sexual organ inserted the victim’s sexual organ.

C. However, it is difficult to accept the above determination by the court below for the following reasons.

(1) According to the reasoning of the first instance court and the lower court’s judgment and the evidence duly admitted, the following facts are revealed.

① From September 2015 to September 2015, the Defendant began with the victim’s school system, which came to know through the introduction of the head of the Gu around early September 2015, and had been living together with the victim’s house from around September 2015, due to the difference in the nature of the horse around January 2016, the Defendant was unable to hear the horses from the victim and respond to it.

② At around 17:00 on February 7, 2016, the Defendant continuously demanded the victim to continue sexual intercourses at the victim’s home room, but the victim did not refuse to do so on the ground that he/she is in a common interest.

③ The Defendant demanded that the victim be placed on the troupe of a troupe that he was able to engage in a self-defense, and the victim said that “self-defense is carried on by the body of his body,” and the victim was able to write down troup on the side of the Defendant, and the Defendant was able to engage in a sexual intercourse with the victim, and the victim did not want to do so.

④ The Defendant again demanded that the Defendant be able to talk with the victim, and that he be able to talk with the victim, and that he be able to go up with the risk, and the victim again respondeded to the Defendant’s request on the condition that he did not own his son by issuing a fake card.

⑤ The Defendant, while kneeing to knee with kneeing, kneeing knee with kneeing, sought to put her sexual organ into panty of the victim, but the victim did not refuse to do so, and again landed the Defendant into the floor.

6) Accordingly, the Defendant: (a) considered that the victim would not put his or her sexual organ into the victim’s family; (b) considered that the victim was fluenched; (c) the Defendant followed the victim’s fluence; and (d) fluenced with his or her sexual organ and the part of the victim’s family with the victim’s family with the victim’s family with the victim’s family with his or her will

7) In addition, the Defendant inserted his sexual organ into the victim’s sexual organ by inserting it from the victim’s sexual organ, and there was a defect that the victim tried to escape therefrom while playing his sexual organ, and the Defendant: (a) putting the victim’s arms and body in double arms to the victim’s arms; and (b) putting the victim’s arms into the victim’s arms so that they could not get out of the victim’s sexual intercourse for five minutes under the influence of the victim’s resistance; and (c) placed the victim’s sexual intercourse with the victim.

(2) Examining these facts in light of the legal principles as seen earlier, the Defendant continued to engage in sexual intercourse with the victim by inserting his sexual organ in the victim’s sexual organ against the victim’s will and by suppressing resistance against the victim to prevent the victim from leaving his sexual organ. Although the Defendant’s act did not constitute violence or intimidation at the beginning of sexual intercourse, it may be deemed that the Defendant committed sexual intercourse with the victim by assaulting the victim at the same time or immediately after the act of sexual intercourse, and this constitutes rape.

(3) Nevertheless, the lower court rendered a not guilty verdict of the facts charged in the instant case on the grounds stated in its reasoning, on the ground that it is difficult to view that the Defendant, at the time of sexual intercourse with the victim, was unable to resist or exercise the force to make it considerably difficult to resist the victim. In so doing, the lower court erred by misapprehending the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the establishment of the crime of rape, thereby adversely affecting the conclusion of the judgment

(4) Therefore, the part concerning the primary facts charged in the judgment of the court below cannot be reversed, and the part concerning the primary facts charged in the same relation with the same body shall be reversed.

2. As to the case of the request for attachment order

As long as the part of the judgment of the court below concerning the case prosecuted is reversed, the part concerning the case of the request for attachment order which must be examined together with the judgment shall also be reversed.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices

Justices Kim Yong-deok (Presiding Justice)