CONTENTS
- 1. The Client Charged With Rape of a Person With Disability
- - Circumstances of the Sexual Offense Against a Person With Disability Case
- 2. Identifying the Issues in the Rape of a Person With Disability Case
- - Strategy According to the Issues
- 3. Strategic Assistance to Reduce the Sentence on the Charge of Rape of a Person With Disability
- - Sexual Offense Attorney's Strategy 1: Change of the Charged Offense
- - Sexual Offense Attorney's Strategy 2: Active Defense at the Trial Stage
- 4. Reclassification of the Charge for Rape of a Person With Disability and Reduction to a “Suspended Sentence”
- - How to Respond to a Sexual Offense Against a Person With Disability Case
1. The Client Charged With Rape of a Person With Disability
The client, who was facing a criminal trial on a charge of rape of a person with disability, had been sentenced to imprisonment at the first instance.
Seeking to pursue a reduction of sentence by conducting an appeal, the client came to the sexual offense attorney.
Circumstances of the Sexual Offense Against a Person With Disability Case
The client was the subject of a criminal complaint after having sexual relations with a relative, A, who has an intellectual disability.
The client claimed that "it was a consensual relationship," but A stated that "there was no actual consent."
The investigative agency, on the basis of A's degree of disability and statement, indicted the client on a charge of 'rape of a person with disability.'
The court of first instance recognized the credibility of the victim's statement and the characteristics of the disability, and found the charge of rape of a person with disability guilty and imposed an actual custodial sentence on the client.
After this judgment of first instance, the client, asserting that it was unjust, decided to appeal, and accordingly sought out a sex offense attorney and requested assistance.
2. Identifying the Issues in the Rape of a Person With Disability Case
The charges applied to the client at the first instance were rape of a person with disability and rape by a relative, etc., provided for in the “Act on Special Cases concerning the Punishment of Sexual Crimes.”
Among these, rape of a person with disability is a crime premised on the victim having been in a state of inability to resist, and a very heavy statutory penalty applies.
Provision | Level of Punishment |
Article 5 of the Act on Special Cases concerning the Punishment of Sexual Crimes (Rape by a Relative) | Imprisonment for a definite term of seven years or more |
Article 6(1) of the Act on Special Cases concerning the Punishment of Sexual Crimes (Rape of a Person with Disability) | Life imprisonment or imprisonment for seven years or more |
However, in preparing for the appellate trial, the sex crime attorney noted that it was difficult to conclude that the client's act necessarily amounted to ‘rape using a state of inability to resist.’
Rather, the attorney viewed it as closer to having reached sexual intercourse or an indecent act by exploiting the characteristics of the victim's disability and her manner of communication.
Accordingly, the sex crime attorney examined the possibility of changing the charge to one carrying a relatively lower statutory penalty, such as ‘sexual intercourse with a person with disability by deceit or coercion.’
Provision | Level of Punishment |
Article 6(5) of the Act on Special Cases concerning the Punishment of Sexual Crimes (Sexual Intercourse with a Person with Disability by Deceit or Coercion) | Imprisonment for a definite term of five years or more |
Strategy According to the Issues
The core issues of this case are as follows.
▷ Did the victim actually lack the capacity for decision-making and refusal with respect to the sexual relations?
▷ Was it rather a case of inducing the sexual relations by exploiting the victim's cognitive characteristics?
Based on these issues, the sex crime attorney highlighted that the constituent element of a ‘state of inability to resist’ was insufficient, and established a strategy to change the charge in the appellate trial to ‘sexual intercourse with a person with disability by deceit or coercion,’ among others.
3. Strategic Assistance to Reduce the Sentence on the Charge of Rape of a Person With Disability
On appeal in the rape of a person with disability case, the sexual crimes attorney focused on the point that the serious charge itself of ‘rape of a person with disability’ had to be contested, and provided specific and multifaceted assistance.
Rather than merely asserting grounds for sentencing, the attorney established a substantive strategy that could avoid an actual custodial sentence by reexamining the nature of the conduct and the legal elements of the offense itself.
Sexual Offense Attorney's Strategy 1: Change of the Charged Offense
On the charge of 'rape of a person with disability,' which can carry life imprisonment or a heavy sentence of 7 years or more, the attorney actively highlighted the point that the victim's state of being unable to resist had not been sufficiently proven.
At the same time, the attorney made the change of the charge to 'sexual intercourse with a person with disability by deceit or coercion' the focus of the appellate strategy.
→ Argued that the victim had a certain level of decision-making ability
∙ Reorganization of circumstantial evidence and communication records overlooked at first instance
→ Raised the possibility of a 'voluntary attitude' on the victim's part
∙ Pointed out that the victim's statements were not consistent between the early investigation and the trial stage
→ Attempted to weaken the credibility of the statements
Sexual Offense Attorney's Strategy 2: Active Defense at the Trial Stage
During the appellate trial proceedings, the sex crime attorney secured and submitted to the court various pieces of evidence that could objectively show the facts.
The attorney also argued the following sentencing mitigation factors.
▷ The fact that he was a first-time offender
▷ His family support circumstances
The attorney also continuously assisted the client so that he could thoroughly prepare his statement and respond to the court appearances, maintaining the defense strategy without wavering throughout the trial proceedings.
4. Reclassification of the Charge for Rape of a Person With Disability and Reduction to a “Suspended Sentence”
After intensive legal argument to change the charge from rape of a person with disability, the appellate court changed the charge to "sexual intercourse with a person with disability by deceit or coercion" and imposed a suspended sentence on the client instead of imprisonment.
The client, who had faced the risk of incarceration under the actual sentence imposed at the first instance, was dramatically able to return to society on appeal, and conveyed deep gratitude, saying, "I am glad I truly trusted and entrusted the matter."
How to Respond to a Sexual Offense Against a Person With Disability Case
In sexual offenses against persons with disabilities, heavy punishment is possible based on the degree of the victim’s disability and their statement alone, so an early response and securing evidence are very important.
Daeryun LLC has numerous criminal and sexual offense attorneys with police, prosecution, and court experience, and it provides tailored assistance such as evidence collection and trial strategy.
The firm also provides support to protect the client’s personal safety and maintain confidentiality.
If you are involved in a 🔗sexual assault of a person with disability case and at risk of punishment, please entrust your case at any time through a 🔗legal consultation reservation.
Daeryun, the 9th-ranked law firm in the Republic of Korea (based on 2025 National Tax Service value-added tax filings), helps resolve cases through the systematic strategy of legal experts across multiple fields.
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