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Judges must base rulings in reality
By Wu Ching-chin §d´º´Ü
Friday, Sep 10, 2010, Page 8
Not too long ago the Kaohsiung District Court handed down a
jail term of three years and two months to a man who had abused a six-year-old
girl on the grounds that the youngster had failed to resist her attacker. The
rationale was that since it could not be demonstrated that the act was
non-consensual, the defendant was to be charged only with statutory rape. News
of the verdict had the online community up in arms and, not long after, the
Supreme Court requested another case of sexual assault on a child to be
reopened.
What are our judges thinking? Do they really live in another world from the rest
of us, or are they simply following the letter of the law?
The verdict was based on the fact that the use of violence, overt force or
intimidation was not present, coupled with the fact that the six-year-old did
not offer any ¡§strong¡¨ resistance. For this reason, the act could not be
considered to be forcible sexual relations as defined in Article 221.1 of the
Criminal Code, and so was declared to be the lesser offense of statutory rape,
under Article 227.1.
The sentence was the result of a combination of the age of the suspect and the
wording of the legislation. While the ruling itself was sound, the legislation
on which the ruling was based is flawed, and needs to be amended. The verdict,
therefore, makes legal sense, even if it seems to be contrary to common sense.
Prior to 1999, the crime of forcible sexual relations described in Article 221.1
was referred to as rape. At that point in time guilt for rape could only be
established when overt force or intimidation to the extent that the victim was
¡§incapable of resisting¡¨ was present. This rather strict condition tended to
punish the victim and not the perpetrator, a state of affairs that received much
criticism.
The law was amended in 1999 and the words ¡§incapable of resisting¡¨ replaced ¡§by
¡§violence,¡¨ ¡§overt force,¡¨ ¡§intimidation,¡¨ ¡§hypnotism,¡¨ ¡§trickery,¡¨ or ¡§any
other methods for which consent has not been given.¡¨ The legislators explicitly
extended the scope of the perpetrator¡¦s actions so that it was no longer limited
to violence and intimidation: Guilt could now be established if it could be
demonstrated intercourse was non-consensual. This avoided the excessively strict
conditions and meant that the victim was no longer punished.
These amendments did not wholly silence critics, however, and a debate remained
on whether the level of force implied in the phrase ¡§any other methods for which
consent has not been given¡¨ equates to the level of force implied in the terms
¡§violence¡¨ or ¡§overt force.¡¨
The Kaohsiung District Court unequivocally decided that it did. The problem with
this interpretation was it meant that the practical impact was little changed
from before the amendment was made. This defeated the original purpose behind
the amendment, which was to protect the victim.
How, after all, is a six-year-old child to fend off an adult? If the law really
requires the adult to use violence or force in order for an offense against a
child to be considered non-consensual, it not only represents a punishment of
the victim, it also constitutes discrimination against children.
The fact that the Kaohsiung District Court decided not to consider the crime to
be forcible sexual relations while at the same time ruling for statutory rape as
defined in Article 227.1 is another point worth discussing.
The crime of statutory rape is intended to protect children under the age of 14
by placing them under the age of consent. In the eyes of the law they do not
have the right to engage in sexual relations, whether the act is consensual or
not. Even if they do enter into the act willingly, a crime has still been
committed and the defendants will be found guilty.
The purpose and rationale behind this law, then, are entirely different from
those underpinning the crime of forcible sexual relations that are designed to
protect one¡¦s right of choice of when, and with whom, one has relations. The
fact that the court took both of these clauses as complementary, to jointly
support the verdict is problematic in that it shows the judges merely followed
the letter of the law without any regard for the judicial rationale behind it.
In addition, even if one conceded that statutory rape was applicable in this
case, the legislation states that the sentencing range available to the judges
is between three and 10 years. Given that the purpose of the clause is to
protect young people, and particularly since the victim was a six-year-old
child, it hardly seems appropriate to sentence the defendant to the minimum of
three years.
It is difficult to justify such a lenient sentence, which demonstrates just how
out of touch judges can be.
There is still much room for improvement in the legislation covering forcible
sexual relations. One would think that the judiciary would be more astute than
legislators, and would be able to divine the spirit and purpose of legislation,
rather than be constrained to rule according to the literal meaning of the law.
If they cannot do this, who can blame people for accusing these judges of living
in ivory towers?
Wu Ching-chin is an assistant professor in the Department of
Financial and Economic Law at Alethia University.
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