Acts of online gender-based violence in which sexual images have been taken without consent, or through threats or violence, have increasingly been appearing in the media, showing how victims’ privacy rights are breached, as well as the pain they undergo and the damage done to their reputations.
On March 10, the Executive Yuan approved draft amendments to the Criminal Code and three other laws that aim to prevent gender-based violence. The amendments are laudable, as they address the public’s concern.
They include a new chapter added to the Criminal Code on offenses against sexual privacy and fake sexual images. Chapter 28-1 stipulates that recording sexual images without consent is punishable by up to three years in prison, while disseminating such images is punishable by up to five years in prison. If the dissemination is for profit, the prison sentence can be increased by half again.
The amendments stipulate that making or distributing fake images of others, or deepfakes, without consent is punishable by up to five years in prison, while doing it for profit is punishable by up to seven years in prison.
The amendments aim to protect people’s right to sexual privacy and their “personality rights,” or their right to control the commercial use of their name, image or any matter that forms a part of their identity.
Although the period of compulsory treatment for sexual assault has been amended so that it can be regularly extended without a limit on the number of times, it is not applicable to those who breach people’s sexual privacy, or make or distribute fake sexual images, as this would be unreasonable.
In a recent case, a man surnamed Lin (林) — a prospective graduate student at National Taiwan University School of Medicine — was sentenced to 104 years and two months in prison after he was convicted of seducing children and young people to engage in sexual intercourse or obscene acts covered under the Child and Youth Sexual Exploitation Prevention Act (兒童及少年性剝削防制條例).
Lin was found guilty of tricking 81 young girls on the Internet into taking nude photographs, but as he did not engage in sexual assault, ordering him to undergo compulsory treatment at a medical facility would not have made sense.
In such cases, the nature of the Internet makes it that, once private videos are posted online or uploaded to foreign pornographic Web sites, it is extremely difficult to take them “off the shelf,” which potentially harms victims almost as much as a sexual assault.
Such offenders are mostly repeat offenders, having put many young victims through physical and mental abuse, and damaged their reputations. This legislative loophole needs to be fixed as soon as possible to demonstrate the government’s determination to crack down on crimes against sexual privacy.
Article 2 of the Criminal Code stipulates that the law in force when a crime is committed, not at the time of the court judgement, should be applied when a court imposes rehabilitative measures that restrict offenders’ personal freedom. This means that amendments to any laws would need to be reflected in changes to the Criminal Code, which complicates the issue.
Taiwan should follow the example of criminal laws in countries such as Austria, Germany and Switzerland, where a new law makes rehabilitative measures consistent across the board. Such details would require the cooperation of the executive and legislative branches to make the nation’s social safety net more comprehensive.
Chao Hsuey-wen is an assistant professor at National Open University and has a doctoral degree from Fu Jen Catholic University’s department of law.
Translated by Lin Lee-kai
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