Judicial Reform in Sexual Assault Case Procedures

To prevent sexual assault victims from suffering secondary trauma, the Ministry of the Interior is promoting a system to reduce repetitive statements by victims. This was initially implemented in Taipei City, Kaohsiung County, and Hualien County. This year, in addition to expanding implementation to Taipei County, Kaohsiung City, and Keelung City, the system aims to adopt a single-statement principle as the norm, permitting video recordings and written records to replace the victim's testimony regarding the incident, meaning victims will not be summoned to court unless deemed necessary.

Since the purpose of establishing this system is undoubtedly to spare sexual assault victims from repeatedly recounting their ordeal and thereby suffering secondary or tertiary trauma, the Ministry of the Interior's dedication to protecting victims is commendable. However, from the perspective of ensuring the truth comes to light, bringing criminal defendants to justice, and preventing continued harm to the public, other complementary measures will likely be necessary to uphold judicial justice once the streamlined-statement procedure is implemented.

Taking cases handled by the author in legal practice as an example, judges handling sexual assault cases generally hold sympathetic and compassionate attitudes toward victims. Consequently, during questioning, they have largely abandoned aggressive postures toward victims, instead exercising caution to avoid overly intense questioning that might harm the victim's psyche. Some judges have even begun adopting the Ministry of the Interior's single-interrogation principle, directly relying on the police-interview record of the incident as the basis for adjudication. Unfortunately, because a defendant is permitted to review the case files through retained counsel after the prosecutor files an indictment, the defendant can gain a comprehensive view and pre-emptively rehearse defense strategies against the victim's account. As a result, during court proceedings, if the victim is unable to promptly rebut unfavorable arguments raised by the defendant, the likelihood of the defendant being acquitted increases significantly. Once a victim summons the courage to step forward and file a complaint in court, only for the defendant to still walk free, this outcome is likely the most severe secondary blow and trauma for the victim.

Although the current judicial system has been striving to have prosecutors attend hearings throughout the entire proceedings and bring out the truth through cross-examination—leading some to believe that the aforementioned drawbacks of the streamlined-statement procedure can thus be avoided—one must recognize that a prosecutor is, after all, not the victim. In certain cases, it is not uncommon for prosecutors to refuse prosecution against the wishes of the complainant. Even when an indictment is filed, since the victim merely serves as a source of evidence and the truthfulness of their testimony remains subject to the court's scrutiny, the victim and the prosecutor do not stand on the exact same side. Therefore, expecting victims to make their voices heard entirely through prosecutors is an elusive prospect! It is thus suggested that the Ministry of the Interior, upon implementing the victim statement-reduction procedure, should enable victims to retain private legal counsel as representative ad litem, and mandate that the court allow such representatives to participate fully in the proceedings and speak on behalf of the victim. This will ensure that while the victim's psychological well-being is cared for, the demands of judicial justice and the maintenance of social order are also balanced!

※ Published in: Liberty Times