Not too long ago the Kaohsiung District Court handed down a jail term of three years and two months to a man who had abused a six-year-old girl on the grounds that the youngster had failed to resist her attacker. The rationale was that since it could not be demonstrated that the act was non-consensual, the defendant was to be charged only with statutory rape. News of the verdict had the online community up in arms and, not long after, the Supreme Court requested another case of sexual assault on a child to be reopened.
What are our judges thinking? Do they really live in another world from the rest of us, or are they simply following the letter of the law?
The verdict was based on the fact that the use of violence, overt force or intimidation was not present, coupled with the fact that the six-year-old did not offer any “strong” resistance. For this reason, the act could not be considered to be forcible sexual relations as defined in Article 221.1 of the Criminal Code, and so was declared to be the lesser offense of statutory rape, under Article 227.1.
The sentence was the result of a combination of the age of the suspect and the wording of the legislation. While the ruling itself was sound, the legislation on which the ruling was based is flawed, and needs to be amended. The verdict, therefore, makes legal sense, even if it seems to be contrary to common sense.
Prior to 1999, the crime of forcible sexual relations described in Article 221.1 was referred to as rape. At that point in time guilt for rape could only be established when overt force or intimidation to the extent that the victim was “incapable of resisting” was present. This rather strict condition tended to punish the victim and not the perpetrator, a state of affairs that received much criticism.
The law was amended in 1999 and the words “incapable of resisting” replaced “by “violence,” “overt force,” “intimidation,” “hypnotism,” “trickery,” or “any other methods for which consent has not been given.” The legislators explicitly extended the scope of the perpetrator’s actions so that it was no longer limited to violence and intimidation: Guilt could now be established if it could be demonstrated intercourse was non-consensual. This avoided the excessively strict conditions and meant that the victim was no longer punished.
These amendments did not wholly silence critics, however, and a debate remained on whether the level of force implied in the phrase “any other methods for which consent has not been given” equates to the level of force implied in the terms “violence” or “overt force.”
The Kaohsiung District Court unequivocally decided that it did. The problem with this interpretation was it meant that the practical impact was little changed from before the amendment was made. This defeated the original purpose behind the amendment, which was to protect the victim.
How, after all, is a six-year-old child to fend off an adult? If the law really requires the adult to use violence or force in order for an offense against a child to be considered non-consensual, it not only represents a punishment of the victim, it also constitutes discrimination against children.
The fact that the Kaohsiung District Court decided not to consider the crime to be forcible sexual relations while at the same time ruling for statutory rape as defined in Article 227.1 is another point worth discussing.
The crime of statutory rape is intended to protect children under the age of 14 by placing them under the age of consent. In the eyes of the law they do not have the right to engage in sexual relations, whether the act is consensual or not. Even if they do enter into the act willingly, a crime has still been committed and the defendants will be found guilty.
The purpose and rationale behind this law, then, are entirely different from those underpinning the crime of forcible sexual relations that are designed to protect one’s right of choice of when, and with whom, one has relations. The fact that the court took both of these clauses as complementary, to jointly support the verdict is problematic in that it shows the judges merely followed the letter of the law without any regard for the judicial rationale behind it.
In addition, even if one conceded that statutory rape was applicable in this case, the legislation states that the sentencing range available to the judges is between three and 10 years. Given that the purpose of the clause is to protect young people, and particularly since the victim was a six-year-old child, it hardly seems appropriate to sentence the defendant to the minimum of three years.
It is difficult to justify such a lenient sentence, which demonstrates just how out of touch judges can be.
There is still much room for improvement in the legislation covering forcible sexual relations. One would think that the judiciary would be more astute than legislators, and would be able to divine the spirit and purpose of legislation, rather than be constrained to rule according to the literal meaning of the law.
If they cannot do this, who can blame people for accusing these judges of living in ivory towers?
Wu Ching-chin is an assistant professor in the Department of Financial and Economic Law at Alethia University.
TRANSLATED BY PAUL COOPER
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