Former Taipei High Administrative Court judge Chen Hung-pin (陳鴻斌) was convicted in 2016 of sexual harassment and dismissed from his position by the Court of the Judiciary. Following an appeal by Chen, the same court on March 8 overturned its ruling and instead fined Chen a year’s worth of salary, or NT$2.16 million (US$74,049).
Chen Chih-hsiang (陳志祥), one of the five judges who ruled on the appeal, said Chen Hung-pin’s action did not constitute sexual harassment because it did not result in an extramarital affair. His explanation sparked a public outcry.
However, it is worth noting that while the original verdict called for Chen Hung-pin’s dismissal, the phrase “sexual harassment” is nowhere to be found in the verdict. This raises the question why “sexual harassment” was not mentioned in both verdicts.
According to Article 20 of the Sexual Harassment Prevention Act (性騷擾防治法), “a person who sexually harasses another person shall be fined between NT$10,000 and NT$100,000,” and Article 21 states that offenders who use their “power, influence or opportunity to sexually harass another person will be given a heavier fine, up to 50 percent” of the original fine.
Moreover, Article 25 stipulates that a person who kisses, hugs or touches the private parts of another when the latter cannot quickly respond or resist can be imprisoned for up to two years.
Based on these stipulations, Chen Hung-pin exercised the power and influence of his higher position over his female assistant, dating the victim and even kissing her. Such misconduct cannot be handled with a mere fine, but is indeed a criminal act, in which case there is no longer any need to consider whether the harasser, a judge, is suitable for his position.
Nevertheless, Article 25 also states that “prosecution for such crime may be instituted only upon a complaint,” which causes a common dilemma in such cases. Even if the victim files a lawsuit, there might be no eyewitness due to the nature of sexual harassment, and it is often difficult to obtain evidence.
This means the victim’s statement is the only evidence available and the victim must therefore appear in court for questioning, thus once more exposing the defendant to secondary victimization.
Even if it can be proved that the accused has kissed or hugged the defendant or touched their private parts, an intent to sexually harass another must also be proved, which increases the difficulty of obtaining a conviction.
Although sexual harassment is defined in Article 2 of the act, concepts such as “harming someone’s personal dignity,” “feeling hostility” and “feeling offended” as a result of sexual statements or behavior are very vague.
If the accused says things like, “I misread her wishes” or “I only wanted to have an extramarital affair,” unconvincing as such statements are, the accused may be ruled not guilty as doubts about the person’s guilt remain and intent cannot be proved.
If the Court of the Judiciary followed such strict reasoning and burden of proof, it is easy to see why the phrase “sexual harassment” does not appear in the verdict and why the judge was only fined for “misbehavior.”
Adding the requirement to show intent to commit sexual harassment for conviction is superfluous, as it often offers an excuse for finding the accused not guilty, and should be removed.
Finding a way to avoid secondary victimization and encouraging victims to come forward to expose sexual harassment is of the utmost importance.
Wu Ching-chin is an associate professor of law at Aletheia University.
Translated by Chang Ho-ming
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