Mandatory sentencing is barbaric

BY BRADLEY WINTERTON  / 

Thu, Oct 07, 2010 - Page 8

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.

An argument against the savagery of Taiwan’s new seven-year mandatory sentences is not in any way an attempt to excuse or absolve child--molesters. A nation is judged, at least in part, on the justice of its legal procedures, and to lock away for such extensive periods men who are clearly more in need of help than punishment puts Taiwan in the company of some of the most brutal regimes on the planet.

Future generations will look back on these mandatory sentences in the same way Europeans now look back on such judicial barbarities as death by burning at the stake, mutilation, hanging and drawing and quartering.

Prison sentences are after all relative. If seven years is the length given for violent bodily assault, possibly in the course of armed robbery, then an appropriate sentence, together with a great deal of counseling, for sexual involvement with a child might be just the two years that the agitators for the new mandatory sentence have managed to convince so many people were “lenient.”

Waves of frenzy on any sexual matters are always highly suspect.

The motivation is in this case presented as being the protection of children. Maybe it is. However, puritanism in general, invariably including the active persecution of sexual minorities, tends to act like a wildfire, burning out of control until its energy has been exhausted.

More bills before the legislature are planned, including one from the Democratic Progressive Party caucus that proposes an almost inconceivable 20 year minimum sentence without parole for sexual acts with anyone under the age of 14. Should this become law, it would represent legislative insanity of the highest order.

Those involved in reacting to these pressures would do well to consider carefully what they are doing before making their final decisions. It is very easy to go along with such pressure, but far harder to resist it and risk being labeled as someone who does not want to protect the nation’s young.

Purity movements in general always present a difficulty for politicians, ever aware of voters’ possible reactions. If they refuse demands for harsher penalties it can all too easily look as if they are refusing to protect children. The answer, of course, is for them to argue that what they are doing is protecting the independence of the judiciary and its right to assess cases on their merits rather than under the shadow of draconian mandatory sentences.

One final point: Why are these anxious moralists, many of them doubtless parents of young children themselves, not making certain their own children under seven are being kept safe from potential molesters? Is it not the parents’ responsibility, first and foremost, to protect their offspring?

Imprisoning pedophiles for enormously long periods of time is shutting the stable door after the horse has bolted. The harm has already been done and it seems unlikely that these brutal new punishments will deter anyone intent on embarking on what is in essence highly irrational behavior.

What these new regulations will do, and have already done, is mark this country as a brutal place, a reputation totally at odds with its general international profile. They will also impose on desperately inadequate people punishments which, in any reasonable society, should be reserved only to protect the community from the most hardened, violent and savage criminals.

Much harm has already been done. For any further measures to be enacted is, to any rational observer, quite simply unthinkable.

Bradley Winterton holds a master’s degree from Oxford University and a master’s of philosophy from Hong Kong University.