Earlier this month, a controversy resurfaced of a women’s soccer coach at National Taiwan Normal University (NTNU) allegedly forcing players to submit to blood tests for research projects without informed consent. Although the university and coach Chou Tai-ying (周台英) have apologized, they should still be held accountable. The problem is that it might be difficult to criminally prosecute them.
Under Article 5, Paragraph 1 of the Human Subjects Research Act (人體研究法), prior to conducting research, the project must be submitted for review and approval by the institutional review board. Article 14 states that the principal researcher must ensure that the subjects understand the research’s purposes and methods, their rights, the mechanisms in place to protect their personal information, the associated risks and ameliorative measures, and that they may revoke their consent at any time, among other matters. It adds that the principal researcher is required to obtain consent without using duress, solicitation or any other improper means.
Researchers and other personnel who contravene the act are subject to a fine of NT$100,000 to NT$1 million (US$3,387 to US$33,872), the act says.
Therefore, in the NTNU case, if the students agreed to have their blood drawn without knowing their rights or were pressured to give blood, their consent was not given freely and is invalid. That would not change even if they signed a proper consent form afterward.
The people who allegedly drew the blood committed the “offense of ordinary injury” stipulated in Article 277 of the Criminal Code, meaning each could be sentenced to up to five years in prison.
Unfortunately, the offense is only prosecutable upon complaint within a six-month period. As the case has been delayed — intentionally or not — for more than six months, despite the large number of alleged victims involved, the researchers can no longer be held criminally responsible.
Under Article 287 of the Criminal Code, offenses of ordinary injury committed by civil servants are not instituted only upon complaint, and the punishment would be increased by half without a statute of limitations.
However, in judicial practice, public university professors conducting research projects funded by the National Science and Technology Council are not considered “civil servants” under the Criminal Code due to their lack of public authority. As a result, despite many students reporting physical and mental harm in the NTNU case, an “offense of ordinary injury” is unlikely to hold.
The researchers allegedly demanded that students return subsidies and falsely inflated expenses. However, as they are not considered “civil servants,” Article 5, Paragraph 1, Item 2 of the Anti-Corruption Act (貪污治罪條例) — which imposes an imprisonment of no less than seven years for taking others’ property without legal authority — is not applicable to them. Instead, a lighter penalty for fraud or breach of trust might apply.
Although the NTNU case appears to be a serious infringement of rights and even inhumane, ultimately, the researchers might only be held accountable under Article 304 of the Criminal Code, for an offense against freedom with a prison sentence of no more than three years, and under Article 41 of the Personal Data Protection Act (個人資料保護法), for misusing someone else’s personal data, with a prison sentence of no more than five years.
Should research that contravenes the Human Subjects Research Act be criminalized rather than being punished administratively? The legislature should promptly review and amend the laws.
Wu Ching-chin is a professor in Aletheia University’s Department of Law and director of its Criminal Law Research Center.
Translated by Eddy Chang
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