Yongsan Attorney | Assists a Client With a Disability and Obtains a Suspended Sentence on Charges of Possession of Child Sexual Exploitation Material

The client had a level 2 autism disability, with a strong urge to collect certain objects and an exceptionally good memory.

However, he lacked awareness of sex crimes and did not accurately understand that his conduct could amount to a crime.

The client came to download numerous videos containing sexual exploitation material from a certain link he found online.

Although he entered out of simple sexual curiosity, his 'urge to collect' took over, and he ended up downloading about 90 child sexual exploitation videos.

He explained that, at the time, he did not recognize that the videos were related to a crime.

The client's family stated that he had the communication ability and intelligence of a lower-grade elementary school student and did not clearly understand what a sex crime was.

In addition, as a person with a disability, he held a job that he had obtained with great difficulty, and if a guilty verdict were rendered and an employment restriction order were imposed, he would have to resign.

This was a matter that could seriously affect not only the client's livelihood but also his future social ties.

The family expressed concern that if the client lost his job, the risk of his becoming further isolated from society would increase, and they earnestly requested leniency.

First, the fact that the client has a disability (whether diminished mental capacity is recognized)

It was a fact that the client, who has a level 2 autism disability, lacked awareness of the crime. However, there were existing precedents in which diminished mental capacity was not recognized on the basis of a disability, so it was necessary to review the possibility of overturning this in light of the client's particular circumstances.

Second, the fact that the client did not know his conduct constituted a crime (the possibility of mitigating circumstances)

It was necessary to prove that the client did not properly understand the very concept of sexual exploitation material. This involved reviewing whether mitigating circumstances were available, such as by arguing that there was no conditional intent owing to a mistake of law.

Third, the question of social ties and the likelihood of reoffending

It was emphasized that the client lived with his family and maintained the job he had obtained with great difficulty, so his social ties were intact. If an employment restriction order were imposed, the risk that he would be further cut off from society through the loss of his job was high, so this could also have a negative effect on preventing reoffending.

With a level 2 autism disability, the client fell within Article 10(2) of the Criminal Act, as a person whose ability to discern objects or to make decisions was diminished.

In addition, under Article 16 of the Criminal Act, conduct in which the client mistakenly believed, owing to a mistake of law, that his act did not constitute a crime under the law may be exempt from punishment only where there is a justifiable reason for the mistake.

In this way, although the client faced imprisonment for a definite term of at least one year under Article 11 of the Act on the Protection of Children and Youth against Sexual Abuse for possession of child sexual exploitation material, there was a possibility of mitigation, such as on grounds of diminished mental capacity, so the attorney sought to provide assistance by thoroughly reviewing these legal principles.