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TITLE 【Syllabus of Latest Opinion】Supreme Court en banc Decision 2015Do9436 Decided August 27, 2020 【Violation of the Act on the Protection of Children and Youth Against Sex Offenses (Sex by Deceptive Scheme, etc.)】 [full Text]
Summary
[1] In a case where a child or juvenile used words or deeds that appear, on the surface, to be a sexual decision or consent because of another person’s deception or exploitation in a trust relationship, whether such language and action can be evaluated as having been uttered and committed by the unfettered exercise of the said child or juvenile’s right of sexual self-determination (negative)
[2] In a case where an offender placed a victim in a state of misconception, delusion, and ignorance, took advantage of such condition of the victim, and achieved his purpose of having sexual intercourse with the victim, whether the crime of having sexual intercourse by deceptive scheme is established (affirmative)
In a case where the victim is deceived into having sex because of misconception, delusion, and ignorance, whether what the victim misconceived of, was delusive about, and was ignorant of can be other than the sexual intercourse itself, for example, the motivation behind the sexual intercourse, or, a monetary or non-monetary incentive associated with the sexual intercourse (affirmative)
Substance of the causal relationship between deception and sexual intercourse, and the circumstances to be taken into consideration when assessing the causal relationship
When assessing the causal relationship between sexual intercourse and deception, whether the causality between sexual intercourse and deception should not be readily denied from the perspective of adults with common sense or the victim’s peers who received sufficient care and education (affirmative)
[3] In the case where: (a) the Defendant misrepresented himself as a Grade 11 high school student to the 14-year-old victim, whom he got acquainted with through a smartphone chat application, and started dating on the app; (b) the Defendant told the victim that he was being stalked by a woman and insisted to the effect that the victim had to have sex with his senior if he were to break up with the stalker; (c) the Defendant disguised himself as his hypothetical senior and had sex with the victim who consented to the Defendant’s demand in fear of breaking up with the Defendant, the case holding that the Defendant placed the victim in a state of misconception, delusion, and ignorance and took advantage of such emotional state of the victim to have sex with the victim and, therefore, the Defendant’s sex act can be assessed as sex by deception
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