Sat, Mar 10, 2012 page8

• Sex party: Criminal law has limits

  • By Wu Ching-chin 吳景欽
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  News reports of a sex party held in a Taiwan Railways Administration train carriage have caused widespread uproar. The case is now under judicial investigation. Although the incident has been widely condemned and the conduct of those involved is open to criticism, they are not necessarily guilty of a criminal offense.

  The sex party has become such a big issue principally because it took place in a train carriage used by the public and because the person who allegedly provided the sexual services was a minor, and this has given rise to arguments about whether a crime was committed. People are asking whether all those who took part are guilty of an offense against sexual autonomy, ie, engaging in sexual acts with someone against that person’s free will, which would be a serious offense and merit condemnation.

  Article 227 of the Criminal Law of the Republic of China (中華民國刑法) prohibits sexual acts with minors, male or female, in order to protect teenagers and children under the age of 16. However, the female involved in the train sex case was reportedly aged 17, so even if the participants had sexual intercourse with her, it would not constitute an offense under that particular article, as long as she gave her consent.

  Nonetheless, because the teenager was under 18, there may have been an offense against Article 22, Paragraph 2, of the Child and Youth Sexual Transaction Prevention Act (兒童及少年性交易防制條例), which prohibits sexual transactions between adults and people under the age of 18.

  However, the key condition of this article is that a “sexual transaction” must take place. If it is found that there was no quid pro quo exchange of money or other benefits, and that both parties willingly engaged in the act, then it would be hard to prove that the participants committed an offense as defined by law. If that is the case, then the assistance provided by the organizer or organizers by hiring the train carriage on behalf of the people involved as the venue for the sex party would probably also not constitute an offense against Article 23, Paragraph 1, of the same act, ie, arranging a sexual transaction with someone under the age of 18.

  It seems likely, therefore, that the only criminal law under which all the participants may have committed an offense is Article 234, Paragraph 1, of the Criminal Code, which is about public indecency. However, although a train carriage would normally be considered a public space that could be entered by non-specific persons, the venue on this occasion was an extra carriage rented out by the Taiwan Railways Administration and attached to the regular train. Given that the carriage was specially booked, there is certain to be a dispute during the coming judicial proceedings as to whether it constituted a public place.

  Relative to the general participants, the organizer or organizers are the ones whose conduct was most controversial and therefore most likely to constitute a criminal offense, because in receiving monetary payment and making all the arrangements for the sex party, they could well be penalized under Article 231 of the Criminal Code, which prohibits sexual procurement, ie, arranging sexual acts between other people for gain. However, the problem here is that, although the organizers allegedly induced and arranged for someone to have sexual intercourse or carry out an obscene act, an offense can only have been committed if it was done for gain. So if, when the rent paid for the train carriage and other associated costs are deducted from the payment received by the organizers, it turns out that there was only a very small surplus, or that they broke even or made a loss, it would be difficult to maintain that their actions were carried out for the purpose of making a profit.

  So even if police and prosecutors are able to get their hands on all the evidence pertaining to the train sex party case, if it turns out that all those who took part did so willingly and that there was no profit made or quid pro quo sexual transaction, then it will be very hard to establish a criminal offense was committed.

  In addition, one must consider the principle that when there is doubt about the seriousness of an offense the lightest penalty must be applied. Perhaps the only applicable charge would be one of an offense against public decency as specified in the Social Order Maintenance Act (社會秩序維護法). However, according to the text of Articles 80 and 81 of this law, offenses punishable under the law are limited to sexual transactions, or to the arrangement of sexual transactions in public places. If there was no quid pro quo transaction or intent to make a profit, then the sex party can only be defined as an activity that falls beyond the scope of the law. In that case, based on the reasoning that people are free to do whatever is not prohibited by law, it would be difficult to apply any kind of administrative penalty.

  So, although the train sex party has been roundly condemned by all sides, the conduct of those who took part lies within the boundaries of the law. Of course public opinion can sternly criticize their conduct as immoral, but law enforcement authorities cannot allow themselves to be caught up in such emotions, as otherwise this would lead to bias and prejudice in the application of the law. After all, the role of the judicial authorities is to investigate and judge cases according to the law, not morality.

  A discussion of who bears what legal responsibility with regard to this incident can serve to reflect the fact that, even when the morality of someone’s conduct is highly dubious, it does not necessarily constitute a criminal offense, and it highlights the limits of what can be regulated by criminal law. That is because criminal law involves the most severe kind of penalty, and so it is the ultimate and not the preferred instrument for regulating social behavior.

  Those who do not approach the matter in this way are likely to fall into the trap of thinking that criminal law is omnipotent, while overlooking the importance of other kinds of social regulation. There is good reason to denounce the behavior of those who took part in the train sex party, but their critics should not seek to gain satisfaction through seeing the participants convicted of serious offenses in the atmosphere of a collective witch hunt.

  Instead, people should focus on the issue of how to protect minors, and especially how to prevent them from being put in harm’s way. That cannot be achieved by relying on the law alone, but also requires education and other forms of social regulation.

  Wu Ching-chin is an associate professor in the Department of Law at Aletheia University.

  Translated by Julian Clegg
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