The #MeToo movement in Taiwan has triggered a “chain reaction.” It seems that many people have been afraid to press charges of sexual harassment because they are worried about putting themselves in the firing line. This leads to the question: Does the criminal justice system in Taiwan protect victims?
Important legal distinctions exist. Crimes of sexual assault — such as forced sexual intercourse or aggravated forced sexual intercourse — are prosecuted according to the Criminal Code, while sexual harassment cases are dealt with by an administrative penalty, such as a fine. The distinction seems clear, but there are complicated distinctions.
Article 20 of the Sexual Harassment Prevention Act (性騷擾防治法) says that “a person who sexually harasses another person shall be fined not less than NT$10,000, but not more than NT$100,000 by the municipal and county (city) competent authorities where the person sets his or her domicile.”
A person has a year to report a harassment case, although Article 7 says: “The organizations, troops, schools, institutions or employers should prevent incidents of sexual harassment as well as immediately take effective corrective measures when becoming aware of the occurrence of sexual harassment.”
However, Article 25 stipulates that “when a person kisses, hugs or touches the bottom, breast or other physical private parts of the other person when the latter one cannot quickly respond or resist: this person shall be imprisoned for a definite term of less than two years, do forced labor service under detention, or separately or jointly be fined.”
A criminal act of sexual harassment requires intent. Often, an offender might claim that their actions were just a joke or a display of friendship.
Moreover, there is often an unequal power relationship between the offender and the victim, so the victim is unlikely to report the case immediately.
Criminal prosecutions are based on the principle of “no trial without a complaint” and there is a six-month limit on reporting incidents, which might have expired when the person affected has the courage to report it.
Article 237 of the Code of Criminal Procedure (刑事訴訟法) says that “in a case chargeable only upon a complaint, the complaint must be filed within six months from the day a person entitled to complain was aware of the identity of the offender.”
However, as there is no provision for the six-month limit to be extended in a sexual harassment case, there is little doubt that their rights are being infringed.
Although a focus exists on handling sexual harassment cases, the possibility of a case of “compulsory indecency” arising cannot be ignored.
Article 224 of the Criminal Code says that “a person who commits an obscene act against a male or female against their will through the use of violence, threats, intimidation, or hypnosis shall be sentenced to imprisonment of not less than six months, but not more than five years.”
Such a crime is not based on the principle of “no trial without complaint,” and the limitation of prosecution is 20 years.
In a case of compulsory indecency, the victim faces a stricter set of procedures, althought the Code of Criminal Procedure has improved procedural protections in the past few years.
Still, as Constitutional Interpretation No. 789 emphasizes, to maintain a fair trial, defendants should not be convicted solely on the basis of a statement to police — there must be additional evidence.
Striking a balance between finding the truth, protecting the rights of defendants and protecting the victim will always be a thorny issue in criminal justice.
Wu Ching-chin is an associate professor at Aletheia University.
Translated by Eddy Chang
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