Breaking Gender Bias in Trials and Investigations, Acknowledging Migrant Workers' Plight, and Rejecting Rape Myths

Legislators Yu Mei-nu and Lin Shu-fen, Garden of Hope Foundation CEO Chi Hui-jung, Taoyuan Servants Association Shelter Center Director Wang Ying-ta, Alliance for Human Rights of Migrant Workers Executive Secretary Li Pei-hsiang, Professor Lin Chih-chieh of National Chiao Tung University's Institute of Technology Law, Professor Wang Hsiao-tan of National Chengchi University's Department of Law, Professor Li Chia-wen, Director of Awakening Foundation, and JRF Staff Attorney Huang Ying-chia, along with representatives of civil society groups and experts, held a press conference this morning (the 11th). Amid ongoing judicial reform, they called for greater emphasis on the in-service training of judges, prosecutors, and other judicial personnel. Such training should cultivate judicial personnel's capacity to understand the plight of migrant workers and foster gender awareness, thereby dismantling rape myths, preventing the reproduction of gender bias and stereotypes, and avoiding secondary victimization of sexual assault victims by judicial personnel during investigation, trial, and in judicial documents.

Since Taiwan opened its doors to foreign laborers in the late 1980s, the number of migrant workers has increased year by year. According to statistics from the Ministry of Labor, as of May 2017, the total number of foreign laborers reached 647,915. Among them, domestic migrant workers accounted for as many as 228,534—35% of all foreign laborers. Influenced by traditional notions of gender division of labor, over 90% of domestic migrant workers are female.

The Uniquely Vulnerable Plight of Domestic Migrant Workers Makes Them a High-Risk Group for Sexual Violence and Easily Turns Them into Hidden Numbers in Sexual Violence Crimes

For years, news reports have frequently surfaced regarding domestic migrant workers experiencing sexual harassment, sexual assault, and other forms of mistreatment, demonstrating that domestic migrant workers exist in unsafe gendered environments. According to the Garden of Hope Foundation's long-term focus on sexual assault issues, domestic migrant workers are a high-risk group for sexual harassment and assault. This is because domestic migrant workers find themselves in closed, privacy-lacking work environments that require physical contact during work, with some even required to share the same room with their care recipients for extended periods. Coupled with unequal power dynamics, unfamiliarity with local culture, language, and information access in a foreign land, their risk of facing sexual violence from employers, care recipients, and their family members is further increased. In addition, migrant workers are mostly introduced through agencies and must pay exorbitant agency fees; they come to Taiwan hoping to work hard to earn money and pay off debts as soon as possible. Furthermore, language barriers and an unfamiliarity with judicial procedures are all reasons why domestic migrant workers choose to endure in silence when suffering from sexual assault and harassment, failing to call the police for help at the first instance.

Judicial Personnel's Failure to Understand the Plight of Domestic Migrant Workers and Lack of Awareness Regarding Rape Myths Are the Main Reasons for the Excessively Low Indictment Rates in Sexual Violence Cases Involving Migrant Workers

Practical statistics from the Garden of Hope Foundation show that, taking 20 gender violence cases in its migrant worker shelter between 2014 and 2015 as an example, 15 parties filed complaints. However, only 2 cases were indicted by prosecutors after investigation—an indictment rate of 13.3%, which is far lower than the 43.95% indictment rate for offenses against sexual autonomy nationwide during the same period.

While the secretive nature of sexual assault cases is certainly a primary reason for low indictment rates, prosecutors' lack of understanding of migrant workers' situations and their ingrained rape myths are even greater roadblocks keeping migrant workers' sexual violence cases out of the courthouse door. Whenever domestic migrant workers who have suffered multiple sexual assaults by their employers finally report it to the police after reaching their breaking point, their accounts are frequently dismissed by prosecutors as "inconsistent with common sense" and thus untrustworthy. This is because, in a prosecutor's experience, the reasonable reaction of an ordinary person suffering sexual assault is to resist with all their might, flee the scene, and actively seek help externally. Migrant workers, constrained by economic pressure and the desire not to be fired or deported, do not immediately seek help or call the police when the first sexual assault occurs; instead, they play along and maneuver with the perpetrator (the employer or the employer's family member) in hopes of continuing to work and earn money. These realities and circumstances unique to migrant workers are frequently disregarded and ignored by judicial personnel.

The Taoyuan Servants Association cited cases of migrant workers it has sheltered to emphasize that domestic migrant workers are indeed a high-risk group for sexual assault, and that the judiciary is the last line of defense for their personal safety and sexual autonomy. However, in the process of seeking judicial assistance, migrant workers who have suffered sexual assault first need the assistance of an interpreter due to their lack of proficiency in Chinese; unfortunately, a given individual might encounter an interpreter with an employment agency background and thus fail to receive neutral services. Moreover, they are highly susceptible to losing the opportunity to receive a fair trial due to judicial personnel's rape myths and lack of understanding of migrant workers' circumstances—or they may even be repatriated home due to physical and psychological trauma rendering them unable to continue working, leaving these experiences as unresolved trauma and a shadow over the parties' lives.

Eight Rape Myths and the Non-Existent Victim

According to an analysis by Professor Lin Chih-chieh of acquittals in offenses against sexual autonomy rendered by the Taipei, Taichung, and Kaohsiung District Courts between 2000 and 2010, eight common rape myths were identified: (1) inferring consent based on the victim's ordinary daily interactions with the defendant; (2) inferring the victim's intent at the time of the incident based on the context prior to the incident; (3) whether the victim actively cried for help, resisted, or fled at the time of the incident; (4) whether external injuries demonstrate the use of physical force; (5) whether the victim exhibited emotional responses such as sadness, depression, or fear after the incident; (6) whether the victim disclosed the matter, reported it to the police, or underwent a medical examination at the first instance; (7) the interactive relationship between the victim and the defendant after the incident, especially whether efforts were made to avoid contact with the defendant or leave the scene; and (8) inferring whether a sexual assault occurred based on stereotypes such as whether other crime-unrelated factors motivated the victim to make the accusation.

Research by Professor Wang Hsiao-tan points out why perpetrators of sexual assault are always so difficult to convict: five realities within the judicial system tell us that the judiciary demands a non-existent victim: (1) ignoring "power and control" in acquaintance rape; (2) harboring erroneous assumptions about women's "sex/sexual desire"; (3) understanding rape merely as the victim's unwillingness at a single point in time; (4) ignoring out-of-context interpretations of language; and (5) only an "ideal victim" can qualify as a victim. In disposition documents and judgments of sexual assault cases, "inconsistencies in the victim's statements before and after" are frequently important grounds for non-prosecution or acquittal. Yet these are often decontextualized inferences made by judicial personnel. For example, when police or judicial personnel ask the victim, "How many times were you sexually assaulted?", the victim may hesitate out of disgust or distress, or may be pondering what "sexual assault" refers to—penetration only? oral sex? or various unpleasant exploratory touches and contacts? Depending on the context laid out by the questioner each time, the time and number of times stated by the victim may also appear "inconsistent."