Thu, Dec 27, 2001 page8

• Private acts and the legal system

  • By Huang Cheng-yi 黃丞儀
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  Responding to Scoop Weekly's distribution of a secretly filmed VCD, Chu Mei-feng (璩美鳳) has finally declared that she will seek redress in law. Of course, the law is the last line of defense for social justice and the victim -- who has suffered severe psychological trauma -- is naturally justified in asking the court to uphold her rights. The sequence of controversial events has prompted lively debate and there remains room to consider the efficacy of legal proceedings as a means of upholding pluralistic values. More fundamentally, however, can recourse to law really bring justice for the victim?

  In terms of criminal prosecution procedures, law follows the inquisitorial principle. The court, when hearing a case, has a duty to investigate the facts in order to meet the requirement of "discovering the truth." Thus, Chu's privat life may be torn apart by the government if the court deems it necessary to prove the facts.

  In the course of a public prosecution, her role may also switch from that of victim to that of witness, and she could come under cross-examination at the request of the defendant. She could even become the subject of forensic tests in which the unique characteristics of her body would be examined. For the person involved in these procedures, formal protections, such as a closed court hearing or a reading of evidence in camera, are no guarantee that dignity will be preserved or that one's past personal experiences won't be unscrupulously exposed to the public.

  On the other hand, if Chu attempts to seek compensation for defamation through a civil action, apart from the traditional rule that the burden of proof rests with the plaintiff -- which forces the victim to choose between revealing intimate secrets or losing the case -- the new Statute of Civil Procedure (民事訴訟法) also greatly strengthens the court's investigative authority by centralizing hearings. By means of the newly added system for the "interrogation of litigants," the court can take as evidence statements taken under questioning.

  The duty of litigants to provide true statements has also been reinforced by means of an oath and fixed penalties for lying under oath -- a departure from the traditional passive nature of procedure in civil law.

  Although both sides appear to stand on an equal footing in terms of legal procedure, for Chu, being forced to surrender her personal privacy and accept the court's authority to investigate matters, represents an asymmetry of interests. Before so-called "justice" is done, greater harm would already have been caused.

  This is all the more true in terms of the laws which would be applied to such a case. As feminist and legal scholar Katherine Mackinnon says, this kind of liberal legalism is a medium for making male dominance both invisible and legitimate by adopting male points of view in law, while also forcing that view on society. Male-oriented law then becomes legitimate and male social dominance invisible.

  Within such legal systems, how can a single woman emerge unscathed by the value judgments of a patriarchal society reflected in statutes such as laws that criminalizie adultery? What substantial justice can she expect?

  In addition to these procedural difficulties, the person involved will collect more scars and suffer more distress in one court hearing after another. She will also have to put up with the media waiting in the halls of the courthouse, hoping to gather any tidbits of exclusive information they can.

  It isn't clear whether going to court will bring justice, but it is certain that it will bring invisible torture throughout.

  From a broader perspective, the same cultural myth is reflected in the Scoop Weekly publisher's defense. That defense rests on the belief that the private lives of public figures are covered by the public's "right to know" as well as the opinion that the secret filming incident should be resolved in court. Our society has no clear demarcation line between the public and private spheres. Private problems are frequently made public, and, conversely, public affairs are frequently kept private.

  This confusion of spheres is often neglected in discussion of the issue. The reason is simply that this confusion is rather difficult to articulate clearly and all too often sounds like empty

  generalization.

  In his comments on former US president Bill Clinton's affair with Monica Lewinsky, the US legal scholar Richard Posner pointed out that the relationship between public and private morality had received too little emphasis. Responding to claims by Clinton and his apologists that the president's sex life was part of his private life and therefore involved only private morality, Posner wrote, "If Aristotle was right [in saying] that it is impossible to think about anything while absorbed in the pleasure of sex," then the president was certainly entitled to a private sex life.

  But, Posner says, if his sex life were played out in his office, that may involve a violation of the president's constitutional duty of "taking care that the laws be faithfully executed."

  Posner posited two standards for distinguishing between public and private morality -- first, whether one is holding public office and second, whether one's flaws in private morality breach public morality and affect the execution of public affairs.

  Let's consider the secret filming in terms of these two standards. The person featured in the video does not hold public office. Nor has she affected the execution of public affairs by flaws in her private morality. By these standards, the woman's sex life belongs completely to her private sphere. By exposing private sexual desire in the public sphere, the magazine's publishers have been trying to confuse the private and public spheres, while also seeking profit. This is deplorable.

  On the other hand, even if one favors legal action against Scoop Weekly, one still cannot clearly see how a legal decision can assign such incidents exclusively to the private sphere. In modern society, the private sphere should allow the individual to reserve as much power as possible to decide the order of his or her private life. As mentioned above, once the case becomes the subject of judicial proceedings, the court will decide whether to investigate the evidence. The individual's life then stands to be picked apart and exposed by state authority.

  What causes both the plaintiff's and the defendant's case to fall into the same domain? The root cause is that their actions are still subject to logic of traditional Chinese legal culture. In the world of traditional Chinese law, some matters that we consider today to belong to the public domain -- such as the power to mete out criminal penalties -- can be resolved in the private sphere -- such as the extended family.

  Likewise, within the Confucianized code of the Ching dynasty, some ethical issues in the private domain can also be expanded and judged in the public sphere. Sometimes the public and private domains are seen as two sides of the same coin and there is no clear boundary between them. We still carry residues of such a cultural character, confusing our understanding of what is private and what is public. What clearly belongs to the private domain, such as sex, can be pulled into the public domain, freedom of speech, through the argument that the morality of politicians can be publicly judged.

  Even though modern legal terms -- such as "privacy" and "freedom of speech" -- have been used to justify the rights associated with them, they are in fact merely theoretical tools wearing a cloak of "rational law."

  If we cannot draw a clear, practical line between the public and private spheres, as well as different standards for handling them, we can expect to continue to be bedeviled by such problems.

  Huang Cheng-yi is a graduate law student at National Taiwan University.

  Translated by Ethan Harkness and Francis Huang
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