Defendant illegally had sex on four occasions with a girl (aged 14 years at the time) with an intellectual disability, whom he met through an online chat room. He used a cell phone to record a video clip of his sexual intercourse and to take nude pictures of the Victim. Under the Act on the Protection of Children and Juveniles against Sexual Abuse, the Prosecutor indicted Defendant on charges of having illicit sex with a disabled juvenile and producing juvenile pornography. The trial and appellate courts found Defendant guilty, and Defendant appealed to the Supreme Court. The Supreme Court held that “judgment competency” means the ability to rationally discern between what is right and wrong, and “decision-making capacity” means the ability to control one’s behavior. Whether such abilities are lacking can be determined by factoring in not only an expert’s opinion on that issue but also objective evidence, such as testimonies of witnesses on the daily verbal expressions and behaviors of the child or juvenile, and circumstances that led to the charge, including the child’s or juvenile’s speech and behavior. The Court held that the Article 8(1) of the Juvenile Act severely punishes those who have illicit sex with a disabled child or juvenile who has judgment competency much weaker than ordinary children and juveniles, and who lack the ability to exercise the right to sexual self-determination. Furthermore, the Court held that Article 11(1) of the Juvenile Act punishes those who produced, imported, or exported child or juvenile pornography. The Court held that even if there may have been implied consent by Victim, such consent could not be viewed as an act of a child or juvenile with sufficient judgment competency who voluntarily exercised the right to sexual self-determination on an informed or educated basis. In affirming the lower court’s decision, the Supreme Court dismissed the appeal.
Supreme Court Decision 2014Do17346