The recent death of an infant, due to alleged abuse by a caregiver in Taipei, has caused widespread public anger.
Aside from the caregiver, a social worker from the Child Welfare League Foundation (CWLF), who was responsible for providing guidance for the child’s well-being, was detained on suspicion of forgery and negligent homicide. However, when the police put the woman in handcuffs, her treatment sparked protests.
The main reason for this was not the detainee’s status, but the use of restraining devices, which must strictly adhere to the presumption of innocence and the principle of proportionality.
Another aspect worthy of closer consideration is whether the attribution of criminal liability for the child’s death should include the social worker.
If anyone other than the caretaker is to be held responsible for the child’s death, it could only be someone who was in the position of a guarantor — that is to say, someone who had a duty to do whatever was necessary to prevent the child’s death.
Since the social worker was responsible for providing guidance and visiting the premises, she had a duty to protect the child who was placed in the caregiver’s home and prevent any physical or mental harm from being done to the child.
So, if the social worker failed to visit the premises and check whether the child was being abused, that could well be a case of negligence in the sense of “not noticing things that should have been noticed.”
If this was the reason the social worker was unable to detect and report the abuse early enough, which ended in a tragedy, then it would seem that she should bear criminal responsibility for negligence and inaction leading to the death of a person.
However, given that the social worker had no official authority, how often and how thoroughly did she need to visit the foster home to fulfill her duty?
Even if the social worker is found to have not fulfilled her duty to effectively monitor the situation, when one considers that the child’s death was caused by the caregiver’s abuse, the causal relationship between the social worker’s inaction and the child’s death is open to dispute.
If it is impossible to prove a cause and effect relationship, then — based on the principle that reasonable doubt should work in favor of the accused and the fact that criminal law only punishes negligence if it results in actual harm — the social worker’s inaction would be unpunishable negligence.
The obstacles that criminal law places in the way of holding the social worker responsible for negligent homicide demonstrate criminal law’s principle of moderation.
They also demonstrate that the blame for the child’s death should not be borne solely by the social worker, especially considering Taiwan’s serious social worker shortage.
It would be fairer for the blame to be put on CWLF and competent authorities who have a duty to supervise such situations.
The fact that criminal law does not recognize “complicity” in negligence or that a corporate entity could be the subject of a crime, would make it even more difficult to pursue criminal charges against the people in charge of the corporate entity or the officials of the relevant government departments.
It would therefore only be possible to pursue their civil liability and seek state compensation. However, pursuing such a case would be a long, slow slog for the victim’s family.
Wu Ching-chin is a professor in Aletheia University’s Department of Law and director of its Criminal Law Research Center.
Translated by Julian Clegg
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