Thu, Oct 07, 2010 - Page 8 News List

Mandatory sentencing is barbaric

BY BRADLEY WINTERTON

Taiwan was until very recently a place characterized by its humanity, tolerance and generally liberal stance. Now, however, it appears to be in the middle of a persecution frenzy — one aimed at pedophiles.

The recent imposition of a mandatory seven-year prison sentence for any kind of sexual activity involving children under the age of seven is a huge setback for Taiwan’s liberal credentials. It is both dangerous in and of itself, and dangerous as a precedent. And by any standard it constitutes a vicious and cruel piece of legislation.

There are two main reasons for this.

First, mandatory sentences of any kind remove from a judge his normal function of assessing the uniqueness of a case, taking into account the circumstances surrounding the offense and the history and character of the accused. Judges are trained to exercise exactly this kind of discrimination, but when a mandatory sentence is in place, this aspect of their judgment is denied them.

The second reason that this kind of injunction from on high, forcing even judges to act according to pre--established, imposed principles, is dangerous when the only real evidence in a case involving a child under the age of seven comes from the child. Testimony in court from children so young is disallowed in many modern legal systems.

The reasons for this are understandable: A child can be easily influenced by adults who try to tell him or her what to say; a child will regularly mix reality with fantasy; and a child has no cut and dry conception of truth and falsehood. A child will remember certain events, but will consider pleasing its parents (for instance) by saying what they have told him or her to say as an equally powerful determining factor when it comes to what he/she should agree to in court, assuming he/she is permitted to testify at all.

And yet, the convicted person now must be sent to prison for at least seven years, without the judge being able to assess the complexities of the case and with the evidence being, probably in almost all cases, shaky at best.

Another undesirable result of this new situation will be that courts, considering the mandatory sentence, will feel disinclined to convict at all. This will be an outcome directly the opposite of that wished for by those behind the recent change.

The issue of who was responsible for this change in the law — not decided by the nation’s legislators, but imposed by the Supreme Court after the personal intervention of President Ma Ying-jeou (馬英九) — must be considered.

Press coverage prior to the change referred to what was typically called “recent lenient sentences” on people accused of child abuse.

What it is necessary to understand is that this charge of undue leniency was not brought by some spontaneous up-swell of public opinion, but was the result of specific campaigning by one or more pressure groups. These groups sought to persuade their followers and anyone else who would listen, that sentences of two, three or even five years in prison were, in the cases of those convicted of unlawful sexual activity involving a child, “lenient.”

Similarly with the petitions signed on Facebook and elsewhere: These were in all probability not ordinary, outraged members of the public rising up to protest at so-called leniency, but people who had been sought out and urged to sign up by the groups orchestrating the crusade.

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