There has been an outpouring of disgust and an escalation in demands for judicial reform in the wake of some recent verdicts in sexual abuse cases involving attacks on very young children. The criticism coalesced into a rally in Taipei last week to back demands for the firing of judges and amendments to the Criminal Code.
Ministry of the Interior figures show that from 2005 through last year, 18,570 children were victims of sexual abuse, while sexual offenses against children younger than six increased from 188 children in 2005 to 270 last year. Clearly more needs to be done to protect children and toughen penalties for offenders.
The recent outrage was triggered by two cases, one in which Supreme Court judges ordered a retrial in the case of a man accused of molesting a three-year-old girl because prosecutors failed to prove the offense was committed against the girl’s wishes, the second a Kaohsiung District Court ruling that prosecutors failed to prove a six-year-old girl had tried hard enough to fight off her attacker.
The defendants in both cases were convicted of statutory rape — meaning having sex with a person under 14 years of age — rather than the more serious charge of sexual assault as defined in Article 221.1 of the Criminal Code, which is punishable by up to 10 years in prison.
The law was amended in 1999 to change the requirement that a conviction for rape required the victim to be “incapable of resisting” to wording that was designed to cover any situation in which it could be construed that the intercourse was non-consensual.
Obviously that wording does not go far enough if judges are still ruling according to the letter of the law, rather than according to the purpose of the legislation. It is hard for any layperson to imagine that an assault on a child, especially one as young as three or six, could be anything but non-consensual and a case of rape.
The Judicial Yuan has agreed to push for an amendment under which any sexual activity with a child under the age of seven should be considered rape. One has to wonder how the magic number of seven was arrived at.
The Judicial Yuan has also proposed a bill under which judges would be evaluated by a panel made up of senior judges and prosecutors. The Judicial Reform Foundation has called for an independent panel that would include representatives from non--governmental organizations and other experts. However, experience has shown that any kind of evaluation panel or commission, whether in-house or “independent,” is all too easily tainted with politics.
Rather than focus on evaluating judges already in the system, what is needed is a change in the way judges are selected and trained. Judges undergo a two-year training program. That program apparently falls short in teaching judges how to think for themselves and interpret laws. This is true not just in sexual abuse cases, but also in sexual harassment cases, as shown by a case in June in which Taiwan High Court judges ruled that touching a woman’s shoulders or waist was not a violation of the Sexual Harassment Prevention Act (性騷擾防治法) because the act only covers touching hips, breasts or other “private” body parts.
Sexual abuse is a serious problem and deserves serious attention. Despite the recent wave of criticism of verdicts, lawmakers should not be in a rush to amend the Criminal Code and other legislation. Amendments are desperately needed, but they won’t be worth the paper they are written on if they are not carefully thought out and crafted. After all, the judges have shown they only pay attention to the wording of the laws.
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