Tue, Mar 22, 2011 page8

• Rape law needs to be reformed

  • By Chen Yi-chien 陳宜倩
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  Once upon a time, when a woman was sexually harassed, she would feel so ashamed that she would bring her life to an end. Chastity was more important than life for women. Then the emperor would give her family some money to honor her fearless effort to defend her chastity.

  Then, as the number of women who killed themselves because they felt dishonored rose, one wise emperor told his people not kill themselves for such a reason. Love your life, he said, and he stopped giving out money to honor such acts.

  The sentiment that women should honor and defend their chastity until death stayed in the Criminal Code of the Republic of China until 1999, when the law was changed under pressure from feminists and women’s groups.

  In 1935, the Criminal Code on rape read: Against women, offenders using force ... so that she could not resist (致使不能抗拒).

  The old rape law was classified as a “crime against public decency” (妨害風化).

  In 1999, the rape law was altered to read: Against men or women, offenders using force, threat, hypnosis or other measures against the victim’s will to have sexual intercourse.

  The new rape law was classified as a “crime against sexual autonomy” (妨害性自主罪).

  So what is the difference between “chastity” and “sexual autonomy”?

  Chastity was a concept created by society when women were property owned by men — either their fathers, husbands or sons — where people would say an act made them feel uncomfortable. It was a standard exclusively reserved for women, not for men. People from different cultural backgrounds felt very differently about this concept at different times.

  Sexual autonomy is enjoyed by the individual, regardless of gender, sexual orientation or sexual practices, and it should be protected by the Constitution and the Criminal Code. A rapist should be punished because sexual assault violates the victim’s sexual autonomy, not because it hurts the feelings of the community.

  Chastity-based rape law tends to focus on the presence of force and the degree of counter-force a woman exercises to defend her chastity. The degree of violence the rapist uses to break the woman’s will is of importance. The old Criminal Code reads: It shall be so bad that she could not resist any longer. If this is the case, then the assault would be described as a rape, otherwise it is assumed to be normal sexual conduct.

  Sexual autonomy-based rape law focuses on “consent.” Where there is a lack of consent, regardless of whether this was through the use of drugs, threats or force, there is rape.

  So how about today?

  Last year, after a number of cases in which people accused of rape and sexual assault escaped punishment, the White Rose Movement was established by a group of concerned citizens — some of whom were victims of rape and others who care for the sexual well-being and health of young girls. They demanded that judges look into the eyes of victims (regardless of whether they are two years old or 16 years old) and look again more carefully at the law to find a more just decision.

  However, the Ministry of Justice and the Executive Yuan have seen fit to act in the wrong way, so wrong that I am very angry. They came up with a proposal to reform the rape law. One of the major revisions was the removal of a phrase that an offense was committed “against the will of the victim” (違反意願).

  It is just a facile solution to say let’s take out the “violating the will of the victim” phrase, so that next time our judges will not conclude that prosecutors failed to prove that the alleged offenses were committed against the will of the victim. So are we heading back to the good old days of “presence of force?”

  It is a facile solution to just want to change the law.

  It is a facile solution to raise sentencing periods for those found guilty.

  It is still a facile solution to just raise the age limit for statutory rape.

  What judges, the minister of justice and many other law professors do not fully comprehend is that from defending chastity to advancing sexual autonomy, Taiwanese women have come a long way. However, judges, the minister of justice and the Cabinet have not caught up.

  Or is it that they don’t want to speak up about their deepest fear — that anyone could easily be a rapist? Yes, the absence of consent is rape.

  Through the so-called democratic process, the rape law can easily be changed; a phrase dropped here, or a few more years to a prison term added there. The legal culture will never change until we come forward and change the perception that just because a female does not scream herself to death or fight for her chastity until death, she has agreed to engage in a sexual act.

  If we want to walk away from this chastity-based thinking and move to sexual autonomy, we have to do more than just delete a phrase in the Criminal Code. We need to talk about our sexual culture in an honest way and discuss gender-related stereotypes.

  Chen Yi-chien is an associate professor and director of the Gender Graduate School at Shih Hsin University.
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