2017Ma716 Quasi-rape

A

Escopic (prosecution) and scopic (public trial)

Law Firm B

Attorney C, D

October 26, 2017

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

To order the defendant to complete the sexual assault treatment program for 40 hours.

Criminal facts

The defendant is a person subject to the Korea-U.S. Administrative Agreement (SOFA), who works in the U.S. Air Base in Pyeongtaek-si.

On April 1, 2017, at around 07:14-07:23, the Defendant discovered the victim G (n, 26 years of age) who was drunk in the first floor parking lot of the F hotel located in Gangnam-gu Seoul, Gangnam-gu, Seoul, and used the victim’s state of refusal to resist under the influence of alcohol at around 07:23-08:08 on the same day, and used the victim’s state of refusal to resist.

Summary of Evidence

1. Partial statement of the defendant;

1. Each legal statement of a witness G, H, I, and J;

1. Partial statement of the suspect interrogation protocol of the defendant by the prosecution;

1. Each photograph (Evidence 5,8);

1. A medical certificate and a medical opinion;

1. Each CCTV image (Evidence List 27,68);

1. A response to each request for appraisal, a written appraisal (a list of evidence 16, 17, 40, 56);

1. Reports on internal investigation (limited to 19 evidence lists, photographs);

1. Each investigation report (Evidence List 34);

1. A screen of hotel reservation (Evidence 24);

1. Screening pictures taken by the defendant and his/her day-to-day, and the victim from CCTV in a hotel;

Application of Statutes

1. Article applicable to criminal facts;

Articles 299 and 297 of the Criminal Act

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. Article 47(1) and Article 49(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes Exempted from Disclosure and Notification Orders; 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 record of punishment for a sexual crime; the Defendant’s personal information registration of the Defendant and orders to complete sexual assault treatment programs are expected to a certain extent to prevent recidivism; considering the relationship between the Defendant and the victim, it is difficult to readily conclude that the Defendant has a sexual crime tendency against an unspecified number of unspecified persons solely with the instant crime in light of the Defendant’s age, family environment, social relationship, etc.; on the other hand, there are significant adverse effects that the Defendant will suffer from disclosure and notification orders, while it appears that the effect of the prevention of a sexual crime that could be achieved is relatively less likely to be disclosed and notified to the Defendant).

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

The victim did not have sexual intercourse at the time when the defendant was unable to resist, and the defendant did not sexual intercourse by taking advantage of the state of impossibility to resist, under the agreement of the victim.

2. Determination

In light of the following circumstances acknowledged by the evidence, etc., it is reasonable to view that the victim was in a state of failing to resist under the influence of alcohol at the time of the instant crime, and the Defendant was sexual intercourse with the victim by taking advantage of the victim’s state of failing to resist. Accordingly,

A. The victim's statement about the victim's status at the time of the instant case and the attitude and condition of the victim after the instant case

1) 피해자는 2017. 4. 1. 위 F 호텔(이하 '이 사건 호텔'이라 한다)과 같은 건물에 있는 K(이하 '이 사건 클럽'이라 한다)에서 술을 마시던 중 04:00경부터 기억을 잃은 후 이 사건 호텔 810호(이하 '이 사건 객실'이라 한다) 침대에서 프런트로부터 체크 아웃 시간이 지났다는 전화를 받고 깨어났고, 약 10분간 잃어버린 자신의 휴대폰을 찾다가 14:00경 이 사건 호텔에서 나와서 택시를 타고 자신의 집으로 갔다는 취지로 진술하였다. 피해자는 깨어났을 당시는 정신이 없고 혼란스러워 다른 생각을 하지 못하였으나 시간이 흐르면서 상의 겉옷 안에 브래지어가 풀려 있고 바지 지퍼가 풀려 있으며 팬티가 비정상적인 방향으로 입혀져 있고 다리에 멍이 들어 있으며 오른쪽 어깨에 손톱으로 할퀸 상처가 있고 성기 부분이 따갑고 아픈 것을 알게 되어 친구의 충고에 따라 해바라기센터에 방문하여 성폭행 신고를 하게 되었다고 진술하였다.

2) The victim consistently states the major part of the victim’s statement to the investigative agency as to the fact that he or she loses his or her memory and that he or she was aware of the victim’s emotional testimony and sexual assault at the time, and the circumstances leading up to reporting to the investigative agency to the effect that the victim’s sexual assault is suspected. Although there are some disagreements in the victim’s statement, it is only a scarcity portion, and it is also deemed due to the limitation of memory in view of the fact that the victim was under

3) The victim stated that it was required for more than 20 to 30 minutes from the hotel to the house, and from the house to the Seaba Center for more than one hour. According to CCTV at the entrance of the hotel of this case, the victim went to the hotel of this case on April 1, 2017, and thereafter the victim went to the hotel of this case on or around 14:17 on April 1, 2017, and submitted to the investigative agency a written petition to the effect that the victim visited the Dong-dong Seoul East Coasta Center to collect relevant evidence and report sexual assault is doubtful. The victim seems to have reported sexual assault to the investigative agency without delay after recognizing his/her body and clothes.

In addition, the victim stated that not only does not know the Defendant consistently in the investigative agency and this court, but also did not memory the Defendant at all. In fact, the investigative agency could not identify the offender who committed sexual assault until he/she asked questions to the victim by specifying the personal information of the Defendant.

There is no such circumstance that the above victim might make a false statement unfavorable to the defendant.

4) The victim consistently stated that there was a trace of the Gutone under the bend of the bend of the bend of the bend of the bend in the instant room. This means that the victim, as seen above, frightened the head on the ground of the bend of the bend of the bend of the bend of the bend of the bend of the instant room, or re-locked the head of the bend of the bend of the bend. In light of this, the victim seems to have been under the influence of alcohol at the time.

5) On April 3, 2017, after the occurrence of the instant case, the victim received treatment for sexual assault victims at the Police Hospital on April 3, 2017, and confirmed that 2 cm in the direction of 1:0 p.m. of the 1:0 p.m. of the c. of the c. of the c.m., the above c.s. of the c.s.

C. The victim's condition revealed externally immediately before the instant case

1) 이 사건 클럽 카운터 및 입구 각 CCTV 영상에 의하면 피해자는 2017. 4. 1. 07:05경 H와 함께 이 사건 클럽에서 나갔다. 당시 피해자는 왼쪽 신발이 벗겨진 상태로 H에게 매달리다시피 하여 H의 부축을 받아 이 사건 클럽 계단을 올라갔는데, H가 피해자를 놓자 계단 손잡이를 붙잡고도 스스로 중심을 잡지 못하여 계단에 주저앉았고 입을 손으로 가리기도 하는 등 술에 만취한 듯 한 모습을 보였다. H는 이 사건 클럽 안에서 피해자가 계속 H에게 안겨서 H가 피해자를 밖으로 데리고 나갔다고 진술하였는데(증거기록 292면), 위 진술을 위 CCTV 영상과 종합하면 피해자는 이 사건 클럽 안에서부터 이미 술에 만취하여 몸을 가누지 못하고 H에게 기댔던 것으로 보인다.

2) The victim, as seen above, was seated in H-based cencing vehicles from the instant club to the Defendant. According to CCTV images at the entrance of the instant club, around 07:05 on April 1, 2017, the victim and H entered the instant club again at around 07:08 on April 1, 2017 after leaving the instant club. According to the CCTV at the entrance of the instant hotel, the Defendant’s boarding of the instant hotel prior to leaving the hotel was around 07:14 through 07:15 on April 1, 2017. Considering that the victim’s entering the instant hotel together with the Defendant was around 07:07:20 on April 1, 2017, the victim appears not to have been able to have been able to have been able to have been able to less than 15 minutes even if the said victim was locked on the instant vehicle mold.

3) He stated that the victim was seated on the top of the steering force of the instant club and her scambling the scam, and re-entered into the instant club. Since then, as the victim was almost locked in the instant vehicle, H was a mental car for the victim who scam in the steering force, and the victim was scambling, and there was no speech that the victim was scambling, and thereafter, the defendant was scambling the victim and let him get out of the train (Evidence Nos. 903).

4) 이 사건 호텔에서 발렛파킹 업무를 하던 와 J은 당시 피해자가 맨발로 클럽 방향에서 호텔 방향으로 비틀거리면서 걸어오다가 호텔 입구 쪽 화단에 쭈그리고 앉았고, 앉아 있는 피해자에게 흑인 남자가 다가가 말을 걸었지만 피해자가 저리 가라는 취지로 손을 휘둘렀는데, 그 후 피고인이 다가가 말을 건 후 피해자를 이 사건 호텔로 데려갔다고 진술하였다.

In full view of the circumstances acknowledged before I and J’s statements, the victim saw the Defendant’s aid from the clorgian vehicle and her blorged in the direction of the hotel of this case, and her blorged and blord. In this case, the Defendant blord the victim to the hotel of this case, thereby leaving the victim’s blorging.

5) According to the CCTV images of the instant hotel parking lot, entrance, 8th floor 1 and 2, the victim entered the instant hotel on April 1, 2017, along with the Defendant, and moved to 07:23:0 on April 1, 2017. At the time, the victim, who was coming to the front line and her second hand, was protruding, protruding, protruding, and was protruding, and the direction of walked by the Defendant on his own because he failed to keep the center at the time of waiting for the elevator or going in the elevator, she was under the influence of alcohol, such as expecting to go on the wall, marking, aground, etc. The victim was unable to properly see that the victim was divided into simple conversations between the Defendant and the elevator, or that it was in the process of talking, and it was difficult for the Defendant to properly walk up.

6) Meanwhile, according to the above CCTV images, the victim seems to have come into the hotel of this case according to the defendant, even without forcing the victim to put the victim into the hotel of this case.

However, the victim seems to have been under significant lack of recognition ability under the influence of alcohol at the time, and the occurrence of this case seems to have not high external temperature due to the period of four months, and in fact, according to CCTV images of the hotel parking lot of this case at the time, people in the hotel of this case and those in the vicinity of the hotel of this case were boomed, and at the same time, they suffered matr or cot, but the victim suffered only e-mail without any retail and lost one new chep. In addition, according to the victim's statement, the victim was in the condition that he was in possession of personal belongings, such as cash at the time of the loss of the cell phone.

If the victim was mixed with the hotel before the hotel without carrying money and cellular phone and without carrying the cell phone, it is difficult to view that the victim’s entry into the hotel of this case according to the Defendant is a circumstance to consent to the sex relationship between the Defendant and the Defendant.

7) As seen below, the Defendant came to the guest room of this case around 08:08 on April 1, 2017, and the time when the relationship between the Defendant and the victim took place is broad from all point of view as the time when the relationship between the Defendant and the victim took place. On April 1, 2017, immediately after the video recording time of the above CCTV, the victim cannot be seen to have been off at the time from the point of view of the Defendant’s sexual intercourse after the video recording of the above CCTV at around 07:23-08:08.

8) The blood alcohol concentration of the blood extracted from the victim was 0.061%. The blood appears to have been recovered after April 1, 2017. If the blood alcohol concentration of the victim was 0.061% at the time of the lapse of about 10 hours from the instant case, it is reasonable to view that the blood alcohol concentration of the victim at the time of the instant case was considerably high.

9) The Defendant’s one-way L (hereinafter “M”) stated at an investigative agency that the Defendant and M were trying to get off the Defendant’s arms when the victim fell from the instant scam vehicle after dividing the conversation with the Defendant, and that the victim was in a normal condition (Evidence No. 652 pages). However, it is natural scambling that two men were to get off the vehicle without under the influence of alcohol and have to have been given off the vehicle. Meanwhile, in this court, M is not consistent with the statement by stating that the victim was not able to have tried when the victim fell from the instant scam vehicle. Moreover, M was not only made in detail, but also made a statement that the Defendant and the victim were dead (Evidence No. 652-653 of the evidence record), and that the Defendant and the victim did not have been able to observe at the time when the victim was on board the vehicle (Evidence No. 652-653 of the victim).

C. Circumstances under which the credibility of the Defendant’s statement that he/she had sexual intercourse under the agreement with the victim falls short of the credibility

1) The Defendant asked the victim of H in English because the victim who was in H’s scam scam, asked the victim whether he was fine in English, and asked the victim to be fine in English. The victim asked the victim whether she would be scam in the club or scam together with the victim's hotel, but he asked the victim to divide her scambling at the defendant’s hotel room. At that time, the victim stated that the victim was not drunk. However, it is quite rare that the victim consented to the defendant who did not have a day-to-day scambling, as well as the defendant’s hotel room. Meanwhile, according to the above statement made by J, the victim stated that he did not come with the foreigner by consistently leaving the foreigner. In addition, according to the above statement by the victim, the victim scam in the direction of this case after getting on the above scambling vehicle, and that the victim was present at the time of entering the hotel of the defendant, which appears to have been present at the victim’s hotel.

2) The Defendant made a statement that Korean women, who were in the vicinity of the victim when getting off the above scambling vehicle, had the victim able to get out of the vehicle (Evidence No. 467 of the Evidence No. 467 of the Evidence No. 1), and stated that Ma or Korean women, who have aided themselves, did not help themselves (Evidence No. 510 of the Evidence No. 510 of the Record), and that Ha did not accurately memory the victim in the scaming vehicle (Evidence No. 851 of the Evidence No. 851 of the Evidence No. 851 of the Record). In addition, if the Defendant outside the vehicle, had the victim scam in mind through an open door, the Defendant made a statement that Ha had the victim scambling the victim in the vehicle, was the most easy to help him get out of the vehicle, and that Ha had another scam to have the victim do so. M. 94 (Evidence Evidence or Evidence).

3) The Defendant stated that the victim was galle at the time only when he was reported only once, but did not appear (Evidence Nos. 469). However, this is contrary to the above CCTV images that the victim was admitted to the hotel of this case on the last day that the victim did not have a new strings. In addition, the Defendant stated that the victim could immediately walk (Evidence Nos. 853) after inspecting the photograph of the above CCTV images (Evidence Nos. 853), but also is contrary to the above CCTV images that the victim could walk without a centering on the victim.

4) At an investigative agency on the background of the sexual intercourse with the victim, the defendant asked the victim of 'the 5th son and the second son', who is fine, and asked the victim of 'the 5th son and the second son', who is fine. The victim told the defendant that the victim is fine. The victim followed the defendant, and the victim asked the victim about 'the 5th son'. The victim asked the victim about 'the 5th son and the 5th son'. The victim asked the victim about 'the 5th son', and asked the victim about 'the 5th son'. The victim asked the victim about 'the 5th son son'. The victim asked the 5th son son', and then asked the victim about 'the 5th son son'. The victim tried to have his son son son son son and the victim tried to have his son her son son son son son'. The victim tried his her her son.

The Defendant opened a door in this court and entered the room and asked whether 5-10 minutes of the victim would come to the beds, and the Defendant and the victim would have come to the beds. The Defendant asked whether the victim was a son problem and tried to raise the victim to the bed while the victim was fine. The Defendant refused to hear the problem of the victim, and the Defendant was able to pay the victim, and the Defendant was able to raise the victim again, and the victim was able to pay the victim. The Defendant again refused, followed by the Defendant’s refusal, the victim was able to pay the victim, and the Defendant was able to raise the victim again. At the same time, the Defendant saw that the victim’s horse would be cut and the horses would be too large.

The victim tried to ask the victim whether he/she intends to engage in a sexual intercourse with the victim again, and the victim said that he/she did so. The victim kidd on the part of the defendant while kid on the part of the defendant, and asked the defendant whether the part of the defendant's sexual organ was good. The defendant was exempted from his/her inner organ, asked the defendant whether he/she was the victim was in his/her inner organ, and did not look at his/her inner organ, and then made it difficult for the scambling body. The victim was off his/her inner clothes, but was not well-known, but tried to put the victim into his/her inner organ, but was sexual intercourse for about 3 to 10 minutes. After that, the victim tried to put the victim's sexual organ into his/her inner organ, the victim did not have a relation with the victim's phone number, and then the victim did not have a relation with the victim's phone number (the victim did not have a relation with the victim's phone number).

5) According to the CCTV image on the eighth floor of the instant hotel, M entered the instant guest room around 07:45 on April 1, 2017, which was the Defendant and the victim. Since M entered the instant guest room, the Defendant and the victim stated that he was all the victim, the sex relationship under the agreement that the Defendant and the victim entered the instant guest room was already terminated after April 1, 2017, when the Defendant and the victim entered the instant guest room, and before the aforementioned 07:45 (M was a military volunteer as the Defendant’s driver, and if the Defendant and the victim appeared to have a sexual relationship with the Defendant at the time of entering the instant guest room, M did not make a statement to the effect that he was the Defendant and the victim.)

However, it is difficult to understand the Defendant’s explanation that the Defendant and the victim divided the conversation for more than five minutes within the long period of 22 minutes, and the victim rejected the Defendant several times by harshing the Defendant, and eventually, the victim, upon consent and agreement, had sexual intercourse with several physical parts, and made a conversation by putting clothes together with the victim, and locked. Rather, if the sex relationship was completed within the short period of time, it would correspond to the sex relationship using the victim’s state of non-performance.

On the other hand, at the time when M was entered the guest room in this case, the defendant himself was not locked and was able to report her friendship to the victim (Evidence No. 476-477 of the evidence record), but he made a statement at the time M was entered (Evidence No. 490 of the evidence record) that he was himself at the time when M was entered (Evidence No. 490 of the evidence record), and the defendant was intending to do so, the defendant stated that he was able to confirm where he was friendly to the victim (Evidence No. 861 of the evidence record) and that he stated that he was able to confirm where her is friendly to the victim (Evidence No. 861 of the evidence record).

After the Defendant entered M, the Defendant stated that he was frightened to the victim before leaving the guest room of this case, and that he respondeded from the victim consistently. As seen below, if the Defendant was off, as stated in the Defendant’s statement, that the victim would have come to the guest room of this case, the Defendant would be out of the clothes that the Defendant would have come to the guest room of this case, then the Defendant would have been able to listen to the horses that the Defendant left while the Defendant had already come to the guest room of this case, and would have continued to live in the said place.

6) As above, the Defendant stated that he had sexual intercourse with the victim. However, according to the above CCTV images, the Defendant and the victim met only the direction of the victim's coming to the hotel at the time when the Defendant and the victim came to the hotel, and the victim seems to be passively speaking in the course of conversation. This is contrary to the Defendant's statement that the victim actively imprued the Defendant. Furthermore, as seen earlier, the Defendant left the hotel of this case around April 1, 2017 and entered the hotel of this case on April 1, 2017 and entered the hotel of this case on April 1, 2017, around 07:20, around 07:23, the victim was not able to actively talk with the victim, and the victim was not able to see that he was able to pay for the Defendant before sexual intercourse, "I do not refuse to do so," and "I do not want to talk with the Defendant."

7) At the time of the shouldering, the victim stated that he was relatively normal on the part of her clothes ordinarily suffered as above, other than that her bomb was unfrightened by her bomb (Evidence Records 472, 780 pages). Since the victim was also recognized by the defendant that she was off from her arms at the time of sexual intercourse (Evidence Records 472, 780 pages), at least her bomb was the victim himself/herself, or that there is no possibility that he/she was suffering, or that

On the other hand, the Defendant first stated that he was her her clothes when the Defendant was aware that her her her flick, and that she was her her flick. However, when Ma,O, and P entered each of the guest rooms of this case, the victim was her flick, and MO was her flick, and MO was her flick, and MO was her flick at around 1:16, 201, when she left the guest room of this case (the victim still was her flick, or her flick, was her flick. It is difficult to view that the victim was her flick at the time when she was her flick (the victim was her flick, or her clothes was her part after she was flick). However, it is difficult to view that the victim was her flick in the Defendant’s flick of this case.

On the other hand, the defendant made a statement that the victim was the victim's state at the time of sexual intercourse (No. 472 pages of evidence), and responded to the police's question askeding whether the victim was boomed (No. 476 pages of evidence record), which is contrary to the victim's statement that the brue was unfolded at the time of the shouldering (the victim's above statement is consistent and specific in the investigative agency and this court, and there is no circumstance that the victim made a false statement unfavorable to the defendant as seen earlier, and there is no reason that the victim made a false statement about the brue situation at the time of the shouldering that is not the circumstances leading up to the sex relationship with the defendant.

8) The Defendant stated that the victim was seated with the above beesced, and was in need of assistance, and that he was left in his hotel. However, the Defendant entered the guest room of this case with the victim, and had sexual intercourse within a short time after having come into the guest room (round 08:08 on April 1, 2017, the Defendant left the hotel CCTV of this case and left the elevator at the seat of the sixth floor of the hotel of this case and left the guest room of this case after having sexual intercourse with other women in the guest room of this case. This is very natural that the Defendant was born with a person who had sexual intercourse with other women in the guest room of this case.

Reasons for sentencing

1. Scope of applicable sentences under Acts: Imprisonment for one year and six months to fifteen years; and

2. Application of the sentencing criteria;

[Determination of Type] Sex Offenses, General Criteria, Type 1 (General Rape)

【Special Convicted Person】

[Scope of Recommendation] Imprisonment of 2 years and 6 months to 5 years (Basic Area)

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 ability to resist, and the nature of the crime is grave, the victim appears to have suffered considerable mental impulse due to the crime of the defendant, and the punishment of the defendant is sought, and the defendant has not violated his own crime, etc., it is inevitable to strictly punish the defendant.

However, the defendant has no record of being punished for the same kind of crime, and the defendant's age, character and conduct, environment, the details and result of the crime of this case, and the circumstances after the crime of this case shall be determined by taking into account various factors of sentencing as shown in the arguments of this case.

Registration of Personal Information

Where a conviction becomes final and conclusive on the facts constituting a crime committed against a defendant, the defendant shall be subject to registration of personal information pursuant to Article 42 (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes and shall be obligated to submit personal information to the competent agency pursuant to Article 43

It is so decided as per Disposition for the above reasons.

For the presiding judge or judge;

The same judge's identity

Judges Lee Young-young