2018Gohap931 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (rape-rape for the Disabled)

2018. Before maturity37 (Joint Attachment Orders)

Claimant

A

Yellow Britain (prosecutions, requests for attachment orders), tents (public trials)

Attorney O Jae-tae

January 15, 2019

A defendant shall be punished by imprisonment for not less than three years and six months.

The defendant shall be ordered to complete the sexual assault treatment program for 80 hours.

The defendant shall order the employment restrictions to institutions, etc. related to children and juveniles for five years.

The request for the attachment order of this case is dismissed.

Criminal facts

피고인은 2018. 1. 17.경 스마트폰 채팅을 통하여 피해자 B(가명, 여, 28세)를 알게 되었고, 피해자는 웩슬러 지능검사 결과 전체 지능 47(평균 100), 사회성숙도 검사 결과 사회연령 5.6세, 사회지수 23.33에 불과하여 지남력이 부족하고 먹을 것에 몰입하는 등 지적장애 2급의 장애인이다.

피고인은 2018. 1. 21. 피해자에게 모텔에서 피자를 사 주겠다고 하여 같은 날 14:00경 서울 관악구 C에 있는 지하철 2호선 D역 7번 출구로 피해자를 오게 한 뒤 피해자와 함께 인근에 있는 'E모텔' 호실불상 객실에 들어갔다. 이후 피고인은 피자를 주문한 뒤, 피자를 먹을 것으로 알고 기다리고 있는 피해자를 침대에 눕히고 가슴과 음부를 혀로 핥고 자신의 성기를 피해자의 음부에 삽입하여 1회 간음하고 이후 배달된 피자를 먹고 쉬고 있는 피해자를 재차 1회 간음하였다.

Accordingly, the defendant has sexual intercourse with the victim by taking advantage of the victim's difficult state of resistance due to mental disability.

Summary of Evidence

1. Partial statement of the defendant;

1. An interrogation protocol of the accused by the prosecution (a letter-type one time);

1. Written complaint, statement recorded CD (No. 10,22) and prosecutorial statement, statement recorded by him/her, and statement recorded by him/her in order of 29);

1. - Photographs of the message between the suspect and the victim, - The recorded CDs, stenographic records (the victim’s family nameB), investigation reports (F dialogue content and the victim’s speech and behavior), photographs, such as message within the suspect’s cell phone, intermediary report, statement of opinion on sexual assault case experts, written opinion(s) - photographs, such as the victim’s face confirmed by G in the suspect’s cell phone, such as the details of text messages, etc. - identification of the victim’s face confirmed by G in the suspect’s cell phone, welfare card, medical record copy certificate and psychological assessment report,

1. Criminal records, inquiry into criminal records, and report on results of confirmation of identical military records;

Application of Statutes

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

Article 6 (4) and (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, Article 297 of the Criminal Act, and the selection of limited imprisonment

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. In full view of the interests and preventive effects expected by the disclosure order or notification order, as well as the various circumstances such as the degree of disadvantage and anticipated side effects of the defendant's personal information disclosure and notification order, in light of the following: (a) Articles 47(1) and 49(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes Exempted from the disclosure order and notification order; (b) 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 fact that the defendant has no record of criminal punishment for the same crime previously committed; and (c) the defendant's age, occupation, home environment, social relationship, etc.; and (d) the defendant's age, registration of personal information; and the completion of sexual violence therapy program, etc., it is deemed that there

1. An employment restriction order;

Article 3 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (No. 15352, January 16, 2018), the main text of Article 56(1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (Amended by Act No. 15352, Jan. 16, 2018)

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.

Judgment on the Defendant and defense counsel's argument

1. Summary of the assertion

The Defendant had a sexual intercourse according to an agreement with the victim. At the time of the sexual intercourse, the victim was unable to exercise his right to sexual self-determination properly due to mental disability, and the Defendant was unable to recognize that the victim was a intellectual disability.

2. Relevant legal principles

A. Article 6(4) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes provides that "a person who has sexual intercourse with or commits an indecent act on another person by taking advantage of his/her physical or mental disability shall be punished in accordance with the examples under paragraphs (1) through (3)." In order to determine whether a person who has a difficulty in resisting due to a mental disability, other than a person who has been unable to resist due to a mental disability, has sexual intercourse with another person in a difficult condition due to a mental disability, the subject of such application is also applicable. Of these, in determining whether a mentally disabled person has a mental disability as its main cause, not only the degree of mental disability of the victim, but also the relationship between the victim and the perpetrator, including the status of the perpetrator, surrounding circumstances or environment, the offender's awareness of and the content of response to the victim (see Supreme Court Decision 2012Do574, Mar. 15, 2012). In addition, Article 6 of the Act provides that sexual self-determination rights of a disabled person shall be protected by the victim.

B. In light of the legislative intent of the above provision that intends to faithfully protect the right to sexual self-determination of a disabled person, the circumstance that the victim is a mentally disabled person should be sufficiently considered when determining whether the victim was unable to resist or resist the said situation. As such, in determining the credibility or probative value of a statement by a person with intellectual disability, whether the victim was able to actually express his/her sexual self-determination at the time of committing the crime by comprehensively examining the victim’s intellectual ability, other than the victim’s intellectual ability, such as social intelligence and maturity and degree of maturity due to such mental disability, characteristics of personal relationship or communication ability (see Supreme Court Decision 2011Do6907, Feb. 13, 2014). Determination of the credibility or probative value of a statement by a person with intellectual disability for reasons that the victim’s statement is not somewhat consistent or is not clear, should be made after considering the victim’s specific contents, time and place of the crime, circumstance, etc., together with such circumstances.

3. Determination

In full view of the following circumstances acknowledged by the evidence duly adopted and examined by the court based on the aforementioned legal doctrine, the victim was in a state of lacking communication ability, social life ability, and ability to solve problems in daily life due to intellectual disability at the time of committing the instant crime. Accordingly, it was considerably difficult for the victim to exercise his right to sexual self-determination or to express his/her intent to refuse sexual intercourse against his/her will, and the Defendant also is sufficiently recognized that the victim was aware of such state.

The victim was unable to exercise his right to sexual self-determination properly due to mental disability, so even if the victim took the attitude that the victim did not resist or impliedly resisted the defendant's act, this is also true.

① The victim is a person who was judged on the second degree of intellectual disability in the age of 28 at the time of committing the instant crime. According to the "Standards for Determination of Disability Grades 2" in the Act on Welfare of Persons with Disabilities, intellectual disability grade 2 means a person whose intelligence index is between 35 and less than 50 can train simple activities in daily life and have a job that does not require special skills, without complicated supervision and assistance.

② In the case of each video recording a victim’s statement at an investigative agency, the victim appears to be capable of memorying the victim’s repeated and familiar daily string, and expressing in detail the areas of interest (TV program, food, and sports). However, the victim’s appearance appears to be clearly divided and it seems difficult to explain the whole context, and it is confirmed that the victim’s answer that does not comply with the purpose of questioning or confusion between the date and time expression due to lack of the remaining ability. Also, the victim’s 'an intermediary’ report on the victim’s statement prepared by the intermediary affiliated with H also appears to be unstable, and the victim’s remaining forces are also unstable, and if the question is not understood by the questioner, it would not answer properly if it is possible to understand the question by the questioner, and the tendency to confuse and express it is also high.

③ The victim, who became aware of the facts stated in the judgment at an investigative agency, stated that the Defendant got her her her her her her her her her her her her and her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her hers her her her her her her hers her her her her her.

④ 성적 자기결정권은 성적인 측면에 있어서 자신과 친밀한 관계를 형성할 상대, 시기, 방식을 자율적으로 결정할 수 있는 권리를 의미한다. 피해자는 H에서 조사를 받을 때, 피고인과의 성관계 당시의 상황에 대하여 '성인 비디오 봐서 빨아달라고 했는데요, ‘갑자기 생각 나가지고요. 빨아달라고 했어요', '밑에 빨아달라고 그랬어요', '산부인과에 서요. 콘돔을 끼든 안 끼든 여자가 흥분만 안 하면요. 흥분을 안 하면 하지 말라고 그래 가지고, 그런데 그걸 까먹었어요'라고 진술하였다. 이후 피해자는 검찰에서 '피고인이 가슴을 만질 때 어땠냐'는 검사의 질문에 '맨 처음부터 남동생이 야동을 깔아놨거든요', '야동을 깔아놨는데 그것을 보고 있을 때마다 내 가슴 빨아줬으면 좋겠다는 생각은 들었긴 들었어요. 빨아달라고 그랬어요'라고 대답하였다(증거기록 277, 278쪽). 또한 검사가 '피고인이 가슴을 빨 때나 성관계하려고 할 때 싫다고 말하거나 싫은 티를 내거나 했냐고 묻자 피해자는 '아니오. 어떡할지 몰라가지고요'라고 대답하였다(증거기록 278쪽), 위 진술을 종합하면, 피해자는 단지 과거에 남동생이 저장해놓은 음란 동영상을 보았을 때 느꼈던 감정이 갑자기 떠올라 피고인에게 가슴과 음부를 빨아달라고 했던 것으로 보일 뿐, 이를 근거로 피해자가 자율적으로 성관계의 상대, 시기, 방식을 결정하였다고 보기는 어렵다. 이는 피해자가 '성적으로 흥분하지 않고, 원하지 않는다면 콘돔을 사용하더라도 성관계를 하지 말라'는 취지의 산부인과의 전달 사항을 까먹었고, 피고인의 성적 접촉에 대하여 어떠한 방식으로 거부 의사를 표현할지 몰랐다는 취지로 진술한 점에서도 확인된다. 이를 종합하여 보면, 피해자의 성과 관련된 지식은 매우 미흡한 것으로 보이고, 성에 관한 지식을 토대로 성적 자기결정권을 실질적으로 행사할 수 있는 정도의 지적 능력을 갖추지 못한 것으로 판단된다.

⑤ From February 7, 2018 to March 14, 2018, the victim’s statement made in an investigative agency may be confirmed that the victim has a tendency to excessively gather theme related to drinking because of high interest in drinking. However, the defendant knows, after the crime of this case, that during the period from February 7, 2018 to March 14, 201, the victim is "satisfing in a solid cover?" 'Issatfing in a long-term cover cover?', 'Isatfing in a long-term cover, 'Isatfing in a long-term cover?', 'Isatfing in a long-term cover, 'J', 'J', 'Isatfing in a long-term cover, 'Issatfing', 'Is and 'Iss 10satfing in a long-term cover, 10s and 17s of the victim's message.

6) The victim made a statement at the investigative agency that he did not speak to the "humth" after the sexual intercourse (Evidence record 63, 71, 282 pages). The victim's statement is consistent, consistent, specific, and different reasons for the victim's statement, and thus, it is highly reliable because it is impossible to find the motive or reason for the victim to make a false statement. If the defendant thought that the victim is a normal situation to sufficiently exercise his right to sexual self-determination, there is no reason to do so. The defendant unilaterally deleted the victim's contact address and conversations stored in the victim's cell phone after sexual intercourse with the victim. In this regard, the defendant made a statement at the investigative agency to the effect that "the victim wanted the victim to have the victim, and it was difficult for the victim to see whether he had sexual intercourse with the victim as sexual intercourse." The argument that the victim's drinking and sexual intercourse with the victim was the same as that of sexual intercourse, rather than the normal person, and that the victim's sexual relationship with the victim could not be easily known and sufficiently deleted the victim's mobile data.

Reasons for sentencing

1. Scope of applicable sentences under law: Imprisonment with prison labor for not less than three years and not less than six months to 15 years;

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

[Determination of Punishment] Types 4 (Rape) of the Act on the Protection of Sex Offenses against Persons with Disabilities (At least 13 years of age)

【Special Convicted Persons】 Members not subject to punishment

[Recommendation and Scope of Recommendations] Reduction Area, 4 years to 7 years

3. Determination of sentence;

The crime of this case is deemed to have sexual intercourse with the victim by taking advantage of the victim’s state of difficulty in resisting the victim due to mental disorder, and is very bad. The defendant, after the crime of this case, has committed acts to conceal the crime, such as eliminating the contents of conversation and contact with the victim stored in the victim’s cell phone after the crime of this case, and there is a high possibility of criticism, such as communicating the victim with the victim in order to take the victim as the object of resolving his sexual desire. The victim appears to have undergone severe psychological impulses due to the crime of this case, and seems to have negative impacts on the formation of sexual identity and values. Nevertheless, the defendant argued that he did not know about the victim’s difficult state of resistance due to the defense that he could not understand.

However, considering the circumstances favorable to the defendant, such as the fact that the defendant has no same criminal history, and the victim expressed his/her intention that he/she does not want the punishment against the defendant, the circumstances favorable to the defendant shall be taken into account, and all sentencing factors specified in the records and arguments of the case, such as the defendant's age, character and conduct, environment, family relationship, motive and circumstance of the crime, etc., shall be taken into comprehensive account, and the punishment shall be determined in the same manner as the order of the punishment

Judgment on the request for attachment order

1. A summary of the cause of claim;

A person subject to a request for attachment order has committed a sexual crime against a victim who is in a difficult situation to resist due to mental disorder, such as the crime in the case of 2018 Gohap931. Since the person subject to a request for attachment order is likely to recommit a sexual crime, it is necessary to attach an electronic tracking device.

2. Relevant legal principles

The risk of recidivism of a sexual crime as prescribed by Article 5(1) of the Act on the Probation and Electronic Monitoring, etc. of Specific Criminal Offenders means that the possibility of recidivism is insufficient solely on the basis of the possibility of recidivism, and that it is highly probable that the person subject to the request to attach an attachment order may injure the legal peace and peace by committing a sexual crime again in the future. The existence of the risk of recidivism of a sexual crime shall be objectively determined by comprehensively assessing various circumstances, such as the occupation and environment of the person subject to the request to attach an attachment order, the conduct prior to the relevant crime, the motive, means, circumstances after the crime, the circumstances after the crime, and the situation after the crime, etc., and such determination shall be based on the time of the judgment (see, e.g., Supreme Court Decision 2012Do337, Apr. 26, 2012;

3. Determination

In full view of the following circumstances acknowledged by the record, it is difficult to readily conclude that the evidence submitted by the prosecutor alone is highly probable to commit a sexual crime again beyond the likelihood of re-offending by the person subject to the attachment order

① The electronic monitoring system under the Electronic Monitoring Act is a kind of security measure aimed at protecting citizens from sexual crimes (see Supreme Court Decision 2011Do5813, 2011Do99, Jul. 28, 201). As such, the provisions that prescribe the requirements for requesting an attachment order shall be strictly construed and applied in a manner that minimizes the infringement of fundamental rights as far as possible.

② As a result of the inspection conducted by the Korea E-SORAS on a sex offender subject to an attachment order, the risk of recidivism falls under the intermediate (7 to 12 points) level of 9 points in total, and the risk of recidivism in the investigation report prior to the request, including the risk of recidivism falling under the intermediate level of 8 points in total, as a result of the evaluation conducted by the Korea E-SORAS, the risk of recidivism falls under the intermediate level of 8 points in total.

(3) There is no same criminal history for a person requested to attach an attachment order, and the crime of this case is committed on the basis of the personal relationship of the victim known through smartphone hosting, not a sexual crime committed against an unspecified general public.

(4) Where this judgment becomes final and conclusive, personal information registration, completion of sexual assault treatment programs, etc. shall be expected to have a significant effect on the prevention of recidivism, promotion of rehabilitation into society, and correction of character and behavior in the future.

⑤ In full view of the content and method of the instant crime, the age, occupation, family environment, and social relationship of the person against whom the attachment order was requested, it is difficult to readily conclude that the evidence submitted by the prosecutor alone is highly probable that the person against whom the attachment order was requested would have committed a sexual crime again in the future, and there is no other evidence to acknowledge it. An investigator also presented his/her opinion that the attachment of an electronic device subject to the attachment order needs to be prudented.

4. Conclusion

Therefore, the request for the attachment order of this case is dismissed in accordance with Article 9(4)1 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders on the ground that it is not reasonable.

The presiding judge, judges, and the Yellow Constitution

Judges Kim Gin-soo

Judges Kim Gin-young