The Court of the Judiciary has tried and retried a case in which former Taipei High Administrative Court judge Chen Hung-pin (陳鴻斌) was accused of sexually harassing his female assistant.
In the first trial, the court found him guilty and ordered his dismissal, but Chen requested a retrial, which determined that he could keep his job, but would have to forfeit one year’s salary.
The revised judgement has led to a heated backlash.
Chen Chih-hsiang (陳志祥), who was a commissioned judge on the Judicial Yuan’s panel that heard the retrial, said in an interview that the valuable thing about judges is that they do not have to pander to public opinion.
Chen Hung-pin had only attempted — unsuccessfully — to have an extra-marital affair, Chen Chih-hsiang said, adding that he had done so without using his professional authority to sexually harass his assistant.
He also said that, whereas the original judgement ruled that there were eight instances in which the accused had used his authority as a judge to commit sexual harassment, the second trial found that no offense could be established in five of those instances, which is why the penalty was reduced.
At first glance, there is some sense to what Chen Chih-hsiang said, but after investigating further, it is rather puzzling.
It is right to say that judges should not pander to public opinion, but not pandering to public opinion does not necessarily make judges valuable or their decisions always right. On the contrary, sometimes it casts further doubt upon them.
Without laboring the point, among the various opinions that have been expressed, plenty have come from legal experts who have independently identified various unreasonable aspects of the revised judgement. In what way are these opinions any less valuable than those of judges?
Leaving aside the divergence of legal opinions between the first and second judgements, it would appear from associate judge Hsieh Ching-hui’s (謝靜慧) withdrawal from the Court of the Judiciary following the trial that even a judge sitting in the same court felt unhappy about the revised judgement.
If even people in the legal profession are unhappy about it, how can it be beyond doubt?
There are many cases in which right and wrong can be judged by plain common sense, and judges’ opinions are not necessarily better than anyone else’s.
Generally speaking, in addition to considering the consequences of a crime when forming their judgements, judges must also consider the motives behind it. In homicide cases, for example, the verdict and punishment will be different for a killing done in self-defense than for one that is premeditated.
In the harassment case, the original judgement determined that there was an instance of sexual harassment — the consequence of conduct — and accordingly ruled that the judge should be dismissed.
However, the revised judgement determined that the accused had only “attempted to have an extramarital affair.”
This ruling clearly emphasizes the motive for the conduct, with the apparent intention of downplaying sexual harassment by the accused to exonerate him.
However, Chen Chih-hsiang said that although the accused wanted to have an affair, he did not succeed in doing so and therefore the offense was not serious enough for him to be dismissed.
Ruling that the attempt was unsuccessful is consequentialist. It is like a case in which someone intends to kill another person, but fails and therefore receives a lighter punishment.
In other words, the judges assigned to hear the retrial were free, based on their judicial discretion, to judge the conduct of the accused based on either its consequences or the motive behind it.
Plain common sense is enough to see how this ploy works, so how is it better, or more valuable, than other people’s opinions? Why should people not raise doubts about it?
There are a few things that I am curious to know. How could Chen Chih-hsiang be sure that the accused only attempted to have an affair? What was his judgement based on, if not the conduct of the accused?
If forcibly hugging and kissing a subordinate does not amount to using professional authority to sexually harass, would that mean that whenever a man in Taiwan is accused of sexual harassment all he has to do to get a light punishment is declare that it was a failed attempt to have an affair?
Hsu Yu-fang is a professor in National Dong Hua University’s department of Sinophone literatures.
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