Examining the Problem of Judicial Secondary Victimization in Sexual Assault Cases—Mobilizing the Public to Reform the Judiciary ("Public Voice Series")

Regarding the issue of sexual assault prevention, through the active efforts of women's groups, successive laws have been enacted to force the government to take the issue seriously. Since the Sexual Assault Crime Prevention Act was promulgated by the President on January 22, 1997, the Ministry of the Interior immediately established the Sexual Assault Prevention Committee to formulate sexual assault prevention policies, supervise governments at all levels in gradually establishing sexual assault processing procedures, services, and medical networks, etc. Special municipalities and county (city) governments also established sexual assault prevention centers to provide 24-hour telephone hotlines, victim psychological therapy, counseling, emergency placement, and legal aid. In prosecutors' offices and courts, specialized divisions were also designated to investigate and hear such cases. Just as all relevant agencies were fully rolling out their operations in accordance with the aforementioned laws, on April 21, 1999, the President promulgated an amendment to Chapter 16 of the original Criminal Code regarding offenses against public morals, renaming it offenses against sexual autonomy. Article 221 of the Criminal Code (compulsory sexual intercourse, formerly known as rape) and Article 224 (compulsory indecency) were reclassified as non-gubernatorial offenses, with compulsory sexual intercourse between spouses remaining the only exception as a gubernatorial offense; however, offenses under Articles 221 and 224 of the Criminal Code remained subject to the old law's provisions on gubernatorial offenses until December 31, 2000. Yet, just as many women's groups were rejoicing over these legal amendments, the author, when acting as counsel for sexual assault victims, could not feel that the victims were encouraged by them. The reason is none other than the fact that the issue of judicial secondary victimization had not been resolved. Before this issue of judicial secondary victimization is further improved, enacting legislation that makes offenses such as compulsory sexual intercourse non-gubernatorial forces victims not only to be subjected to naked judicial scrutiny, but also risks having them legally apprehended by prosecutors' offices and courts if they refuse to appear for questioning because they cannot bear the judicial trauma. Therefore, the issue of judicial secondary victimization should be an urgent matter that all those concerned with sexual assault prevention must ponder as a top priority, because victims are by no means laboratory mice for testing judicial secondary victimization.

The major problems of judicial secondary victimization are as follows:

1. Exposing the Victim's Identity and Address

According to Article 10 of the Sexual Assault Crime Prevention Act, promotional materials, publications, radio, television, the internet, or other media shall not report or record the name or other information sufficient to identify the victim of a sexual assault incident. In addition, public documents that administrative and judicial agencies are required to make public shall also not disclose information sufficient to identify the victim's identity. Therefore, while prosecutors' offices and courts recently did not record information sufficient to identify victims in indictments and judgments, when summoning victims before any disposition or judgment is made by the prosecutors' offices or courts, they publicly and loudly call out the victim's name outside the courtroom (investigation room). Although the court holds closed hearings, because the court schedules sexual assault cases on the same day as other cases and lists them explicitly as offenses against public morals outside the courtroom, victims become the focus of everyone's attention when called, causing deep distress. Furthermore, the court lists the victim's name, ID number, and address one by one in the case files without separate sealing, making them available for the perpetrator's defense counsel to review and copy. Consequently, obtaining the victim's identity and address is as easy as pie for the perpetrator, often causing victims to compromise through settlement or relocate their residences out of fear of the perpetrator's retaliation. Therefore, the author suggests that prosecutors' offices and courts should thoroughly implement the legislative intent of having specialized divisions and closed hearings, summoning victims separately and secretly whenever possible. If it is unavoidable to have the perpetrator and victim confront each other, sexual assault cases should also be tried separately from other cases, and two-way video systems should be utilized to question or confront the perpetrator separately from the victim and their defense counsel (however, Article 15 of the Sexual Assault Crime Prevention Act stipulates that two-way video systems only apply to victims who are mentally disabled or under 16 years of age). In addition, the victim's identity and address should be separately sealed and prohibited from being reviewed, and all signatures on victim interrogation transcripts should be replaced with code names. However, due to the issue of evidentiary value in non-public hearings, whether aliases can be used in the signature column of such transcripts still awaits technical resolution by the legal community.

2. Attitudes of Police, Prosecutors, and Judges When Questioning Victims

According to Articles 98 and 192 of the Code of Criminal Procedure, the questioning of witnesses shall be conducted with an earnest attitude, and the use of violence, threats, inducement, fraud, fatigue interrogation, or other improper methods is prohibited. When police, prosecutors, and judges question victims in sexual assault cases, their attitude should be even more earnest, and contemptuous or disdainful attitudes are strictly prohibited. The author has witnessed or heard of judicial personnel stating that the perpetrator is good-looking and could not possibly have sexually assaulted the victim, or speaking harshly to the victim such as "What are you crying for? Do you think crying will make people believe you?", or discriminating against the victim's occupation, educational level, or socioeconomic status, or demanding that the victim withdraw the complaint within a time limit or face severe consequences, or questioning why the victim dressed revealingly or went to the perpetrator's home, and even having victims apprehended when they refused the judiciary's disdain. Consequently, all the efforts made by social workers in comforting victims and medical institutions in psychological therapy to protect victims from secondary victimization are rendered null and void here. One by one, victims—already suffering from post-trauma syndrome (such as self-blame, inferiority complexes, and crying at night)—progress under judicial secondary victimization into schizophrenia, are admitted to psychiatric sanatoriums, attempt suicide, or suffer broken families. Perhaps judicial personnel still do not know what they said wrong or what regrets they caused. But all friends who care about sexual assault issues should let judicial personnel know!