How far can the testimony of a victim with severe developmental disabilities be recognized as "evidence"? In the trial over the sexual assault case at the Incheon residential facility for people with disabilities "Saekdongwon," this question has emerged as the key issue.
The defense denies credibility, calling it "testimony created by repetitive and leading questions," while prosecutors counter that "considering disability characteristics, the core remains consistent." Where is the line between "not-smooth testimony" and "hard-to-believe testimony"? This trial is becoming a test bed that will set that standard.
The Criminal Agreement Division 29 of the Seoul Central District Court (presiding judge Eom Gi-pyo, Director General) held the first hearing on the 24th of last month for Kim, the former director of Saekdongwon, who was indicted and detained on charges of violating the Act on the Punishment of Sexual Crimes and the Act on Welfare of Persons with Disabilities. Kim is accused of sexually assaulting three residents with disabilities and assaulting another resident with a drumstick.
Kim's side denied the charges, saying "it is hard to believe the victims' testimony." The court plans to conduct an on-site inspection at Saekdongwon on the 15th and then examine the relationship between the victims' testimony and the charges.
◇ Is it "leading" or "confirming"? Questioning style is also subject to judgment
There are three main issues. Whether the questions during the investigation were "leading," whether the testimony contains "traces of direct experience," and whether the overall testimony maintains "consistency."
Kim's side argues that investigators questioned the victims in a way that elicited desired answers. Because people with intellectual disabilities tend to align with the questioner's intent, the method of questioning itself is the key variable in assessing credibility, they say.
However, the court does not reject an entire statement merely because there were yes-no or confirmation questions. It takes the view that one must distinguish whether the process was confirming what the victim first said, or whether investigators presented a specific answer and then led the victim to follow it. In 2023, the Seoul High Court ruled in a forced indecency case involving a person with disabilities that "it is hard to view yes-no questions aimed at confirming the victim's prior statements as leading questions."
Attorney Park Min-seo of Wongok Law Firm said, "In interviews with victims with intellectual disabilities, the principle is to use open-ended questions that allow them to express their thoughts, feelings, and experiences on their own," adding, "This is to ensure that statements are formed without external influence." Ultimately, the issue lies not in the form of the question but in the overall process by which questions and answers unfold.
◇ Even if the account is disorganized, it is accepted if there are "traces of direct experience"
The testimony of a victim with disabilities may jumble the timeline or include content not directly related to the incident. But the court does not immediately treat this as a lack of credibility. It may be an expression pattern stemming from limits in intellectual and language abilities.
In June 2023, in a case involving acts similar to sexual intercourse against a person with disabilities, the Seoul High Court found that even if the victim's testimony was somewhat disorganized and mixed with peripheral information, it could be understood as a characteristic of disability.
The court has held that if the statement contains concrete descriptions and expressions of emotion that are hard to produce through repetitive training or external interference, it can be evaluated as testimony derived from direct experience. The point is not whether the speech was smooth, but whether there are "traces of experience" within the statement.
Attorney Lee Jeong-min, head of Law Office Jiyul S&C, said, "A person with an intellectual disability may be unable to specify details such as dates or places accurately," adding, "The court evaluates comprehensively, including the demeanor during testimony, whether the content reflects actual experience, and whether distinctive statements are consistent."
◇ Supreme Court also says "disability characteristics must be considered"
The Supreme Court also holds that testimony by victims with intellectual disabilities should not be hastily rejected. In a January 2017 case involving acts similar to sexual intercourse against a person with disabilities, it ruled that even if there were some inconsistencies, such as the victim answering contrary to open-ended questions, this could be seen as arising from a failure to fully understand the intent of the questions, and if the degree is within an acceptable range, one cannot deny the credibility of the testimony as a whole.
Of course, this does not mean testimony by victims with disabilities must be trusted unconditionally. Courts consider, in a comprehensive manner, factors such as ▲ consistency of the main content ▲ the possibility of external influence ▲ and whether there are contradictions with other evidence. In the end, courts assess credibility not by the mode of expression but by the traces of experience embedded in the testimony and the consistency of its core content.
◇ On-site inspection is also a variable: "Weighing physical possibility"
In this case, the results of the on-site inspection are also expected to be an important variable. Apart from the credibility of the testimony, whether its content is physically possible is also subject to judgment.
Kim's side argues that, given Saekdongwon's layout and the constant supervision by residential instructors, the crimes alleged in the indictment were physically impossible. Even if the victims' accounts are specific and consistent, if their content clearly does not match the actual spatial layout or movement paths, the court has no choice but to conduct further review. Conversely, if the site's structure does not conflict with the testimony, the defendant's argument loses force.
In criminal trials, the probative value of evidence is determined under the "principle of free evaluation of evidence," which leaves it to the judge's discretion. The court will reach a determination by considering the victims' testimony, the style of questioning, disability characteristics, the site's layout, and the relationship with other evidence. The Saekdongwon case appears poised to set a standard for how far to recognize the boundary between a disability victim's "not-smooth testimony" and "hard-to-believe testimony."