1. Case Overview

a. Background of the Case

At the time of the incident, the defendant was 14 years old and the victim was 12 years old. The defendant and the victim were seniors and juniors at school. The victim, through her legal representative, accused the defendant of forcibly molesting her, raping her while she was incapable of resisting, and threatening her to take naked photos of herself and send them to SNS messengers. The prosecutor found the allegations credible and charged the defendant with violation of the Special Act on the Punishment of Sexual Offenses (rape of a minor under the age of 1), violation of the Special Act on the Punishment of Sexual Offenses (forcible molestation of a minor under the age of 13), and violation of the Act on the Sexual Protection of Children and Adolescents (production and distribution of sexually exploitative material).

b. Progress of the Litigation

We represented the defendant from the first trial. The court of first instance ruled that, with respect to the violation of the Special Act on the Punishment of Sexual Offenses (rape of a minor under the age of 13) and the violation of the Special Act on the Punishment of Sexual Offenses (forcible molestation of a minor under the age of 13), it could not be proved beyond reasonable doubt that the defendant committed adultery with the victim by exerting tangible force to suppress the victim’s rebellion or to make it significantly difficult for the victim to rebel, and it is difficult to prove that the defendant forcibly molested the victim against her will by means of intimidation, and therefore, while finding the defendant not guilty of the respective charges above, the court ex officio found that the facts of the case charged included the offenses of constructive rape and constructive forcible molestation of a minor. Consequently, the court found the defendant guilty of the crimes of constructive rape of a minor, constructive forcible molestation of a minor, and violation of the Act on the Sexual Protection of Children and Adolescents (production and distribution), and sentenced him to one year and six months in prison and three years of probation. The prosecutor and the defendant both appealed.

2. Judgment

Seoul High Court Decision 2024No654, dated July 18, 2024

3. Grounds for Judgment

1) Regarding forcible molestation and rape of a minor under the age of 13, the appeal court rejected the prosecutor’s arguments in this regard, finding that the trial court’s decision to acquit the defendant of each of these counts was justified, and that it was insufficient to prove beyond reasonable doubt that the defendant knew that the victim was under the age of 13 on the date of each of these counts, stating that the defendant, who was 14 years old, could not be found guilty of the offense of forcible rape or forcible molestation of a minor under the age of 13 by merely concluding that the defendant knew that the victim was 12 years old on each of the above dates, which had not passed his birthday, the court accepted the defendant’s appeal, set aside the first trial judgment, and acquitted him of each of these counts.

2) Regarding the production and attempted production of sexual exploitation work of children and adolescents, the appeal court rejected the defendant’s argument that the first instance court’s decision to find him guilty of each of these counts was justified, but decided to remand the case to the juvenile department in accordance with Article 50 of the Juvenile Act, as it is desirable to correct his behavior through appropriate education and edification courses that take into account the characteristics of juveniles so that he can grow into a healthy member of society rather than imposing criminal punishment on him.

4. Our Arguments and Role

From the first trial, we actively collected evidence on the movement of the defendant and the victim on the day of the incident, the location of the incident, etc. by visiting the scene where the incident occurred, and impeached the credibility of the victim’s statement by carefully analyzing the SNS conversations between the defendant and the victim before and after the incident, and argued that there was no evidence that the defendant forcibly molested the victim or raped her by taking advantage of her irresistible state.

On appeal, the court noted that the so-called 'counting age', which is the age at which a child turns one year old immediately after birth and increases by one year every year, was used instead of the "full age" at the time of the incident, and that the defendant had recognized the victim as 13 years old based on the "counting age" in light of their social media conversations, Even if the acts of molestation or adultery are admitted, the defendant did not intend to molest or commit adultery with a victim under the age of 13, so the crimes of forcible molestation of a minor and forcible rape of a minor under Article 305(1) of the Criminal Code could not be established.

The defendant also preliminarily argued that the sentence of the first trial court, which was one year and six months’ imprisonment and three years’ probation, was excessively severe and unjustified in light of the fact that the defendant was a 14-year-old boy who had not yet established his sexual ideas or values, had no history of criminal punishment or disciplinary sanctions, and had no problems in school. We requested the court for the defendant that the maximum leniency allowed by law be granted so that he could grow into a proper adult with the discipline of his parents and the education of his school and contribute to our society.

□ Attorneys in charge: Park Sung-Ho and Lee Chan-Woong