Wed, Feb 12, 2020 page8

• State, law must care for all children

  • By Hsu Tze-tien 許澤天
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  According to documents released by the Taipei District Prosecutors’ Office, a two-year-old boy starved to death due to the negligence of his mother, who is mentally challenged. The boy’s biological father had abandoned him, his mother’s cohabitant was indifferent to him and he was physically abused by his uncle.

  It is beyond imagination that such a tragedy would occur in Taiwan, a nation known for its people’s warmth and where life is pretty good.

  The Criminal Code should provide protection for powerless and vulnerable children: Article 271 addresses homicide, Article 276 addresses negligent homicide and Article 294 addresses abandonment.

  To convict a person of these offenses requires an objective element, which involves a child’s death or their life being placed in danger, and a subjective element, which requires that the perpetrator is proved to have intentionally caused the death or danger. This threshold is far too high for ensuring the proper protection of children, who rely completely on adults for their care and nurturing.

  Even Article 286, which addresses mistreating a minor, only prohibits actions that impair a child’s mental or physical health or development, but does not include abandonment, which would put a child’s basic life needs in danger.

  By contrast, Section 170 of the German penal code, which addresses the breach of maintenance obligation, stipulates: “Whoever evades a statutory maintenance obligation so that the necessities of life of the person entitled to maintenance are endangered or would be endangered without the assistance of others incurs a penalty of imprisonment for a term not exceeding three years or a fine.”

  Under German law, a parent may be punished for endangering a child’s life necessities long before they reach the point where they would have placed the child’s life in danger, let alone causing a child’s death.

  In practice, due to the lack of clear legislation, Taiwanese courts have long misused abandonment, which essentially aims to protect the life of “helpless people,” to punish actors who fail to exercise their caregiving obligation.

  While this might be jurisprudentially inappropriate, it sheds light on the fact that there is a high degree of agreement in society that people who fail to fulfill the obligation to support, raise or protect should be penalized.

  However, to comply with the proportionality principle, courts should refrain from using the Criminal Code to convict people whose failure to meet that obligation is not severe enough to jeopardize the basic daily needs of people who are entitled to care.

  Lawmakers should learn from Germany and clearly define breaches of the obligation to support, raise or protect, and emphasize the hazardous consequences. That would clearly distinguish breaches of the obligation to support, raise or protect from abandonment, and allow both offenses to exercise their proper functions.

  It would also prevent courts from casually citing abandonment and giving disproportionate punishment to someone who fails to meet the obligation to support, raise or protect, but does not cause injury.

  The German civil code also targets biological fathers unwilling to accept the responsibilities of marriage and fatherhood. Section 1615-l2 stipulates that the father must within a certain period take responsibility for supporting the mother by paying her child support, so that she will not find herself in dire straits due to pregnancy, delivery or raising a child alone, which could further jeopardize the child’s interests.

  Instead of functioning as a morality clause prohibiting men from being unfaithful, the law must protect innocent children. In combination with the law against breaches of the obligation to support, raise or protect, a father evading that obligation and bringing further harm to the mother’s basic needs for living will be punishable by the Criminal Code.

  The Civil Code and the Criminal Code lack counterparts to the German civil code. It is worth questioning whether the absence of relevant laws has led many pregnant women, worried that they cannot afford to raise a child, to resort to an abortion or to abandon their children in parks.

  A state bears a fundamental obligation to protect every child still in the womb or born to the world. Before the protection mechanism is perfected, the government should establish care centers that receive and care for abandoned children to prevent helpless mothers in distress from undertaking abortions or abandoning newborns.

  Hsu Tze-tien is a law professor at National Cheng Kung University.

  Translated by Chang Ho-ming
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