As the #MeToo movement spread across the nation, entertainer Tina Chou (周宜霈) on Tuesday last week accused her former boss, TV host and P.League+ CEO Blackie Chen (陳建州), of barging into her hotel room and pinning her down to the bed in 2012.
Chen denied the accusations and in an official statement released through a law firm, said he would take legal action. It seems that the truth would only be known through a judicial ruling.
However, before the truth is revealed, could the accuser be held liable for defamation?
In sexual harassment or sexual assault cases, there is an unequal power relation between perpetrators and victims. This is why victims often chose to be silent at the time and only dared to speak out amid the #MeToo movement.
Moreover, sexual harassment is punishable by only two years in prison at most and, as prosecution can only be instituted upon a complaint, by the time the victim reports the case, the six-month statute of limitations (the deadline for filing such a lawsuit) would have long passed.
As for sexual assault and rape, they are punishable by six months to five years, and three to 10 years respectively in jail, can be prosecuted without the victim having to file a complaint, and the statute of limitations is as long as 20 to 30 years.
However, many of these cases take place in private properties and vital forensic evidence would have long been lost. Pursuing such a case would mean relying mainly on the victim’s statement. However, out of the fear of secondary victimization, victims might hesitate to file a lawsuit, creating an impediment to prosecution. Even if victims had the courage to report to prosecution, they might still be burdened by prolonged litigation.
In short, there are many difficulties involved in prosecuting sexual harassment and sexual assault, and those who come forward face the risk of being accused of defamation, which is punishable by up to two years in prison.
Although Article 310, Paragraph 3 of the Criminal Code states that “a person who can prove the truth of the defamatory fact shall not be punished for the offense of defamation,” there is bound to be room for ambiguity in deciding if it is true. Moreover, such a condition for legal justification is equivalent to forcing defendants to give up their right to silence to prove their innocence.
However, according to the Council of Grand Justices’ Interpretation No. 509, issued in 2001, to the extent that the perpetrator fails to demonstrate that the defamatory statement is true, as long as the perpetrator has reasonable grounds to believe that the statement is true based on the evidence he submits, the perpetrator cannot be held liable for defamation.
On the other hand, on June 9, the Constitutional Court’s Judgement 112-Hsien-Pan-8 made a supplementary interpretation on whether the defamatory statements are made with bona fide intent, elaborating on the offender’s duty to check for the validity of the defamatory statements. If they were issued under the situation where the offender acted knowingly or under gross negligence, it is regarded as actual malice and the offense is punishable.
The punishment of defamation is limited to intentionality, and the Constitutional Court’s judgement extends it to gross negligence, which obviously violates the red line of nulla poena sine lege (no penalty without law).
What is more noteworthy is that in cases of sexual harassment and sexual assault, given a lack of witnesses, it is difficult to collect evidence, so proving the truth can be problematic. Deciding whether the offender acted knowingly or under gross negligence is dependent on judges’ free evaluation of evidence, and confuses the roles of the perpetrator and the victim.
Wu Ching-chin is an associate law professor at Aletheia University and the director of the university’s Research Center for Criminal Law.
Translated by Lin Lee-kai
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