Reflections on the Legislative Amendment History of Sexual Autonomy Offenses: The White Rose Movement as a Turning Point
Last edited: 2026-11-03
Sexual assault cases occur endlessly in Taiwanese society. Judgments rendered by the courts fail to gain public trust, victims cannot be effectively protected, the rescue of wrongful convictions in sexual assault cases remains difficult to implement, appropriate treatment for offenders in sexual assault cases is lacking, and sexual assault cases involving homosexuals and transgender individuals rarely receive attention, let alone the protection they deserve. More importantly, whether our current regulations concerning sexual autonomy are in need of reform is a topic that warrants discussion. Focusing on the White Rose Movement, this article examines the amendment history and legislative models of Taiwan's sexual autonomy offenses, attempting to strike a balance among punishment, protection, and corrective treatment by drawing on diverse perspectives from victims, offenders, courts, and sexual minorities often labeled as "minority groups," thereby offering appropriate recommendations for judicial reform.
Frankly speaking, this article stems from a relatively idealistic perspective, starting with the resolution of social problems to pursue "true fairness." It seeks neither to leave victims under-protected nor to impose excessive punishment on offenders that hinders their successful rehabilitation and reintegration into society, while also avoiding any interference with the independent adjudication status of the courts. In other words, the author attempts to find a balance point, raise relevant questions, and try to provide answers as well as prospective directions for future legislative amendments.
The Ch'ahsian Child Sexual Assault Case
Do you still remember the once-uproarious sexual assault case of the little girl in Ch'ahsian, and the White Rose Movement filled with public anger and dissatisfaction? On August 15, 2010, a man surnamed Lin placed a six-year-old girl on his lap in the stairwell of the Kaohsiung Public Library and inserted his finger into the little girl's genitalia. According to the adjudication results of the Kaohsiung District Court, it was held that the man surnamed Lin did not act against the girl's will, and he was convicted under Paragraph 1 of Article 227 of the Criminal Code for having sexual intercourse with a young child, resulting in a sentence of 3 years and 2 months of imprisonment.
After the judgment was rendered, it aroused widespread public dissatisfaction, with people believing that the judges were out of touch with reality. As public discontent continued to ferment, the White Rose Movement finally emerged on September 25 of the same year, becoming the last straw that broke public trust in the judiciary. The main demands of the White Rose Movement were to urge the government to replace incompetent judges and to advocate for the protection of the rights of children and youths. Under intense public opinion demands and pressure from all sides, the Supreme Court issued the 7th Criminal庭 Resolution of 2010 in response to the surging public demands.
However, are the current structure of our country's sexual autonomy offenses and the aforementioned 7th Criminal庭 Resolution of 2010 truly reliable? What exactly did this "public-appeasing" resolution state? What kind of provisions does our current Criminal Code have in protecting people's sexual autonomy, what impacts do they have on us, and what must be done to provide adequate "sexual" protection for individuals are the issues this article will explore. Below, we will introduce our country's legislative amendment history, the problems with the original provisions, post-amendment controversies, and legislative models, allowing readers to understand the establishment context of sexual autonomy offenses.
Legislative Amendment History
Before the legal amendment in 1999 in our country, Paragraph 1 of Article 221 of the old Criminal Code stipulated that "[w]hoever, by violence, coercion, administering drugs, hypnosis, or other means, causes a woman to be unable to resist and has sexual intercourse with her, commits the offense of rape," and it was categorized under the "Offenses against Public Morals." At this stage, legislators positioned sex crimes as crimes against morality.
It was not until sexual concepts gradually broadened and were viewed from an open perspective that, in 1999, our country finally separated the provisions of Articles 221 to 229-1 of the Criminal Code from the original offenses against public morals and established the "Offenses against Sexual Autonomy." Following the amendment, sex crimes broke away from the traditional moral context and no longer belonged to the concept of moral offenses. Moreover, sexual autonomy is a manifestation of personal freedom and belongs to part of fundamental rights; therefore, sex crimes infringe upon personal freedom legal interests and constitute a type of offense against personal freedom.
| Old Criminal Code Article 221: Classified as a moral offense | Current Criminal Code: Becomes an offense against freedom | Comparison |
| Whoever, by violence, coercion, administering drugs, hypnosis, or other means, causes a woman to be unable to resist and has sexual intercourse with her, commits the offense of rape, punishable by imprisonment for not less than five years. Having sexual intercourse with a female under fourteen years of age shall be deemed as rape. | dWhoever, by violence, coercion, intimidation, hypnosis, or other methods contrary to his or her will, has sexual intercourse with a man or a woman, shall be sentenced to imprisonment for not less than three years and not more than ten years. |
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Woman → Man or Woman
The protected subject under Article 221 of the old Criminal Code was limited to women. Given today's diversified and open sexual concepts, is it impossible for men to be subjected to the possibility of rape? Such a concept seems unreasonable. Therefore, the subject matter of the act in Article 221 of the old provisions was amended to "man or woman."
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Sexual Intercourse (姦淫) → Sexual Intercourse (性交)
In our judicial practice, the interpretation of "sexual intercourse (姦淫)" was limited to "a male inserting his sexual organ into a female's sexual organ." Therefore, acts such as inserting objects or organs other than sexual organs into sexual organs were not included in the concept of "sexual intercourse (姦淫)." This concept also seemed unreasonable; hence, "sexual intercourse (姦淫)" in the old provisions was amended to "sexual intercourse (性交)."
What is sexual intercourse? Is it the same as what you perceive?
Sexual intercourse refers to the following sexual intrusion acts not based on a proper purpose:
1. The act of inserting a sexual organ into, or bringing it into contact with, the sexual organ, anus, or oral cavity of another person.
2. The act of inserting body parts other than sexual organs, or objects, into, or bringing them into contact with, the sexual organ or anus of another person.Sexual intercourse as defined in Article 10 of the current Criminal Code must be "not based on a proper purpose." However, what is a "proper purpose"? It is generally considered to be for preventing normal medical treatments from falling under the criminal law, but this also creates the strange phenomenon where "consensual sexual behavior between spouses" may fit a "proper purpose" yet fail to meet the definition of "sexual intercourse."
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Deletion of "Unable to Resist" & Addition of "Other Methods Contrary to His or Her Will"
The original provision stipulated "unable to resist." Some academic scholars argued that this posed no problem because "unable to resist" referred to situations where victims lost their capacity to resist due to fear, without requiring victims to physically resist, let alone requiring them to resist with all their might. However, in practical operations, evidence had to be used to prove that the victim was indeed "unable to resist," and the standard of judgment often used whether the victim "did or did not resist" as an indicator.
Dear readers seeing this must surely feel something is amiss. Does it mean that if a victim does not resist today, it does not fall under the requirement of being "unable to resist"? Such protection for victims would seem inadequate. Therefore, the amendment ultimately deleted the element of "unable to resist" and added the element of "other methods contrary to his or her will."
What Counts as "Contrary to Will"?
However, under what circumstances can a victim's sexual behavior be determined to be unfree? Although the 1999 criminal law amendment was considered a progressive step in our country's protection of sexual autonomy, it also generated a major controversy: what exactly are the "other methods contrary to his or her will" stipulated in the statutory provision? Under what circumstances can an act be categorized as "contrary to will"? The interpretation of this concept has been fiercely debated in both academia and judicial practice.
Academic Interpretations
A majority view in the past held that since the law placed the element of "other methods contrary to his or her will" right after elements such as violence, coercion, and intimidation, the so-called contrary to will must also possess a coercive force of the same intensity as violence and coercion; otherwise, it does not constitute being contrary to will.
Others argue that although being contrary to will must create a coercive force, the intensity of this coercive force does not need to be as high as that of violence and coercion; it only needs to reach the degree of low-level coercion to be considered contrary to will. As long as the actor creates a state that leaves the victim helpless and difficult to resist or difficult to escape, it is considered contrary to will.
Example 1 Stranger A breaks into B's house. A, seeing that B is graceful in appearance, is overcome by lust. B does not wish to have sexual intercourse with A, but A nevertheless restrains B on the bed and has sexual intercourse with her.
Example 2 B is a married woman with one child. A is a well-known local underworld boss who carries a small knife. One night, A walks on the street, sees B is graceful in appearance, and says to B, "Do you want to have a go?" B sternly refuses, but A does not give up, takes out a small knife, waves it in front of B, and threatens B by saying, "If you don't have sexual intercourse with me, I'm afraid your pretty face will have to bear a long scar!"
Example 3 The actor blocks the victim's escape by a wall or on the MRT with their body and commits sexual assault.
Example 4 Transporting the victim to a desolate wilderness to commit sexual assault.
In Examples 1 and 2, the coercive degree exerted on the victim by violence, coercion, and intimidation is relatively high. In Examples 3 and 4, the actor does not use violence, coercion, or intimidation, but instead creates a state where the victim finds it difficult to escape or is helpless, without suppressing the victim into a high-intensity coercive state like the means of "violence and coercion." Therefore, the means adopted by the actor in Examples 3 and 4 are also called low-level coercive means.
The Court's View
The other "methods contrary to his or her will" referred to after the amendment shall mean all other methods contrary to the victim's will, aside from violence, coercion, intimidation, and hypnosis enumerated in that Article, which infringe upon the victim's freedom of will. It is not necessary for such methods to be equivalent to the enumerated coercive methods such as violence, coercion, intimidation, and hypnosis to a degree sufficient to suppress the victim's right to sexual autonomy, so as to conform to the original legislative intent.
The court held that being contrary to will does not require generating a coercive state against the victim; even if it does not suppress the victim's sexual autonomy decision-making right through means similar to violence and coercion, it can still be established. However, it did not provide specific explanations as to what other means or methods differ from violence and coercion. Therefore, some scholars believe that the nature of this resolution is understood according to ordinary daily semantics: if it falls under a non-willing act, it belongs to being contrary to will.
However, is the court's resolution reasonable? Imagine that social life is filled with reluctant states. For example, people might act like Gudetama, shouting, "I'm so tired today, I don't want to go to work," yet, compelled by life, still grit their teeth and crawl out of bed to start a day of work. Such situations of being "reluctant" while still taking action may be viewed as accompanying "negative emotions," but they are not the intent of the action itself.
Furthermore, the court's concrete explanation of "suppressing the victim's decision-making right" is nowhere to be found, and a clear standard of judgment seems non-existent. This may lead judges to simply interpret the element of "contrary to will" based on personal understanding when adjudicating cases, which also seems inappropriate.
Legislative Models
Various countries adopt different legislative models for sexual autonomy offenses. This article briefly introduces three common legislative models.
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Coercive Model: The actor's act must reach a state of being coerced
Under the coercive model, the establishment of sexual assault must take "the actor's use of coercive force" and "violation of the victim's will" as elements. The element of "unable to resist" stipulated in Article 221 of the old Criminal Code prior to 1999 in our country belongs to the coercive model. This issue has already been discussed in the previous text and will not be repeated.
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Non-Consent Model: The passive party must express refusal; passive non-refusal counts as consent
"No means no" values intent. When a sexual invitation is refused, but the actor ignores this "expression of refusal" and continues, sexual assault is constituted. Our country's current Criminal Code tends toward the non-consent model, emphasizing the victim's will to refuse sexual behavior. Germany also tends to adopt this non-consent model.
Simply put, the concept of the non-consent model belongs to the concept of "only refusal means no," presupposing the stance that "not saying no means consent." Therefore, the counterparty must express refusal.
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Affirmative Consent Model: The active party must obtain consent from the passive party; failure to obtain consent constitutes a crime
"Yes means yes." As long as the active party fails to obtain the other party's consent, a crime is constituted. This legislative model emphasizes that participants in sexual behavior "must express their willingness to participate." Before engaging in sexual intercourse with another person, if the actor fails to obtain the counterparty's explicit expression of willingness to participate in sexual behavior through words or affirmative actions, and merely remains silent or acquiesces, then the actor's sexual behavior constitutes sexual assault. Sweden and Canada adopt this legislative model.
The Istanbul Convention
In 2011, the European Parliament formulated the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention), in which sexual violence is stipulated in Article 36, reading as follows:
- Engaging in non-consensual acts of a sexual nature with a person, whether with any part of the body or with an object, without consent into the vagina, anus, or oral cavity
- Committing other non-consensual acts of a sexual nature with another person
- Causing another person to engage with a third party in non-consensual acts of a sexual nature
→ The element of "without consent" in the content emphasizes the importance of "consent"; therefore, the Istanbul Convention is considered to adopt the affirmative consent model.
The Istanbul Convention reveals the connotation of the affirmative consent model, viewing sexual autonomy as "the freedom to decide to engage in sexual behavior, and how to engage in it." The affirmative consent model posits that everyone is a subject with clear bodily boundaries and is presumed to withhold consent until consent is expressed. One must undergo "permission" before engaging in sexual intercourse; otherwise, it constitutes an infringement. On the other hand, the non-consent model presumes that everyone remains open to others at all times unless a "refusal" is expressed.
| Non-Consent Model | Affirmative Consent Model | |
| Expressing Consent | X | X |
| Expressing Refusal or Resistance | O | O |
| Remaining Silent or Failing to Express Refusal | X | O |
Reading up to here, careful readers must certainly feel something is amiss: as long as no refusal is expressed, it is not considered contrary to will—this is simply too unreasonable!
The 7th Criminal庭 Resolution of 2010
The Ch'ahsian child sexual assault case sparked the White Rose Movement, prompting the Supreme Court to hastily issue the 7th Criminal庭 Resolution of 2010 to respond to the angry public opinion.
Article 227 vs. Article 222
If B is aged 7 or above and under 14, and A and B engage in sexual intercourse consensually, A shall be convicted under Paragraph 1 of Article 227 of the Criminal Code for the offense of having sexual intercourse with a male or female under fourteen years of age. If A engages in sexual intercourse with B, who is aged 7 or above and under 14, non-consensually, or if B is under 7 years of age, A shall in both cases be convicted under Subparagraph 2, Paragraph 1 of Article 222 of the Criminal Code for the aggravated offense of sexual intercourse contrary to will.
| Age | Whether Consent is Distinguished | Whether a Crime is Constituted |
| < 7 years old | Consent is not distinguished | Unconditionally constitutes the aggravated offense of forcible sexual intercourse under Subparagraph 2, Paragraph 1 of Article 222 (7 years or more) |
| 7~14 years old | Consent must be distinguished | Consent → Constitutes the offense of having sexual intercourse with a child under Article 227 Paragraph 1 (3 years to 10 years) |
| Non-consent → Constitutes the aggravated offense of forcible sexual intercourse under Article 222, Paragraph 1, Subparagraph 2 (7 years or more) |
After the 7th Criminal庭 Resolution of 2010 was issued, the original trial judgment was also overturned, and the actor in the Ch'ahsian child sexual assault case was re-sentenced for committing the aggravated offense of forcible sexual intercourse under Subparagraph 2, Paragraph 1, Article 222 of the Criminal Code. On the surface, it echoed public opinion, and fair justice seemed to be realized, but was this resolution truly "reasonable" in practice?
The resolution used "age" as the distinguishing standard, determining that engaging in sexual intercourse with a person under 7 years old unconditionally constitutes the aggravated sexual intercourse offense under Article 222 of the Criminal Code. However, the basis for dividing this age standard cannot be found in the current Criminal Code. Do young children under 7 truly lack sexual consciousness? Do those reaching 7 possess sexual consciousness? It still needs to be determined individually by professionals.
Imagine that once a victim reaches 16 years of age, Article 227 of the Criminal Code can no longer be used for protection. This seemingly reveals that the exact moment a victim turns 16, they possess sexual consciousness and their physical and mental development is mature, thereby eliminating the need for protection under Article 227. This is where this article finds something rather bizarre, because a person's physical and mental development may be positively correlated with age, but it does not necessarily mean that the older they get, the more mature their physical and mental development becomes. Rather, differences arise due to living environments, growth backgrounds, and received education. Following this concept, age and the maturity of expressing will, understanding of sexual consciousness, and sexual intent only exhibit a high correlation / positive correlation, but are not absolute.
It must be emphasized that this article agrees with the important normative purpose behind Article 227 of the Criminal Code, which protects the physical and mental development rights of children. However, the relationship and determination standards between age and physical/mental development protection are open to question. We will temporarily set aside this controversy and focus on the discussion of applying Articles 221 and 222 of the Criminal Code. The examples cited below follow the aforementioned context and proceed under the premise that young children may (not necessarily) possess mature sexual consciousness and willingness for sexual intercourse—which also differs from most current opinions—to discuss the issues of applying Articles 221 and Article 222, Paragraph 2.
The examples below illustrate that if only the non-consent model is adopted, there are still many shortcomings.
In Judgment No. 422 (Criminal, 2010) of the Kaohsiung District Court, it was held that because the young girl did not resist the actor, nor did she scream or cry, it was not contrary to her will. Therefore, she was established to have committed the offense of having sexual intercourse with a young male or female under Article 227 of the Criminal Code, and could not be established under Article 221 of the Criminal Code for forcible sexual intercourse.
Thirteen-year-old Adrienne went to Mike's house late at night to find him. Because she entered Mike's house alone and was admonished not to make any noise, she felt terrified and experienced a state of psychological dissociation. Her clothes were removed by Mike and she was subjected to sexual intercourse. During the sexual intercourse, Adrienne lost consciousness several times and was unable to resist. Afterwards, Adrienne suffered psychological trauma and exhibited suicidal tendencies.
→ In this case, Adrienne lost consciousness and was unable to resist; thus, she did not express refusal. Under our country's criminal law, this would also constitute the offense of having sexual intercourse with a young male or female under Article 227 of the Criminal Code.Such unreasonable situations place unnecessary burdens on victims under the non-consent model. Refusal should not be the victim's obligation; the duty to confirm whether the other party consents should fall upon the person who wishes to engage in sexual intercourse, and the active party must obtain the other party's affirmative consent.
The Root Cause of Public Outrage
In detail, Articles 221 and 222 of the current Criminal Code must be established under the circumstance of "contrary to the victim's will." As for Article 227 of the Criminal Code related to the Ch'ahsian child sexual assault case, it was enacted considering that persons under 14 have limited sexual autonomy capabilities, aiming to protect the health of children's physical and mental development. Even if the actor did not actually infringe upon the victim's sexual autonomy rights, the offense of having sexual intercourse with a child under Article 227 is still established. The laws applied by the court and the charges established are not improper under the legislative model of the current law.
Take a closer look at Paragraph 1 of Article 227 of the Criminal Code: having sexual intercourse with a young child under 14 years of age is punishable by imprisonment ranging from 3 to 10 years. However, the court sentenced the actor to 3 years and 2 months, yet what the specific reasons were was never clearly stated by the court. Therefore, under the legislative model at that time, the root cause of public outrage should lie in the sentence imposed rather than the law applied.
Affirmative Consent Model
The affirmative consent model requires the actor to obtain consent from another person before engaging in sexual intercourse with them. If consent is not obtained, it constitutes an infringement upon another person's sexual autonomy, offering more comprehensive protection for victims and seeming worthy of reference as a future legislative direction. However, can the affirmative consent model truly and effectively solve the previously mentioned problems? This article maintains an open attitude and raises questions regarding the opinions advocating the adoption of the affirmative consent model below.
The Meaning of Affirmative Consent
Affirmative consent is a seemingly simple standard: as long as the actor does not obtain the victim's consent, sexual assault is constituted. However, how should so-called "consent" be determined? What are the determination standards? Some define consent as "actual words or actions showing that the party concerned engages in the sexual intercourse in question out of free will." Is the judgment of whether words or actions show free will based on "objective general public perception" or purely on "the subjective will of the actor or the victim"? And how should this "consent" be proven?
The author interviewed Professor Li Chia-wen. Under the concept of affirmative consent, affirmative consent refers to the recipient of a sexual invitation expressing willingness to engage in sexual behavior through language or active physical actions such as undressing or nodding. At the time of the act, the judgment of whether language or actions show free will should be judged objectively by the actor based on their subjective judgment of the objective circumstances. If a person is hesitant during sexual intercourse, or if the actor is unsure whether the other party is truly willing to engage in sexual intercourse but continues without clarifying, under the actor's subjective circumstances, the offense of non-consensual sexual intercourse may be established. A respectful person should verbally confirm the other party's intent once again. If the actor harbors a speculative mindset of "if I ask clearly, there will be no chance to score," the offense of non-consensual sexual intercourse can still be established.
The following case study from literature is quoted as a starting point and meaning for readers to ponder "consent."
In this case, did A's proposal as a condition for debt exemption count as affirmative consent? Professor Li Chia-wen believes that A in the case gave affirmative consent to the sexual behavior. Affirmative consent does not depend on the motive for consent, but rather on whether the parties in the sexual behavior clearly understand "with whom they are engaging" and "the connotation of the act." Sweden, a country that adopts the affirmative consent model, had Prime Minister Stefan Löfven state: "It should be painfully obvious: sex must be voluntary. If it is not voluntary, it is illegal." "If you are uncertain, refrain!" Both Professor Li Chia-wen and the Swedish Prime Minister echo an important concept: everyone must fully respect others.
Gender Differences in Affirmative Consent
Canada is a country that adopts the affirmative consent model. Canadian judgments mention that if an actor (female) deceives the other party (male) before sexual intercourse by claiming to use birth control pills or condoms when she actually does not practice contraception, and the counterparty (male) is unaware, ultimately resulting in the actor becoming pregnant, the male victim only bears the economic risks of parental responsibilities and family education, which does not constitute fraud under criminal law and remains consensual sexual intercourse. Does such a determination form insufficient protection for male victims?
Professor Li Chia-wen believes that for this type of fraud to be established, the key lies in whether the fraudulent sexual behavior causes major harm to the body, such as pregnancy, impacts on the maternal body, and risks. Biological males can present evidence of what major harm was caused to them, and punishment is not ruled out.
Shifting of the Burden of Proof or Not?
This is the primary controversy of the affirmative consent legislative model: will it cause a shifting of the burden of proof, increasing the substantive evidentiary pressure on the defendant? If the defendant is innocent, how can they prove they obtained the counterparty's consent? And how can wrongful convictions be avoided?
Professor Li Chia-wen stated that supporters of the affirmative consent model do not advocate changing the prosecutor's burden of proof. If there is a wrongful conviction, it is because the court demanded little of the evidence; this problem exists in every legislative model and is not unique to the affirmative consent legislative model. The true solution to avoid wrongful convictions is that prosecutors should be more thorough when collecting evidence, and collect evidence in a legal and correct manner, and judges should be more meticulous when forming mental conviction based on evidence, carefully examining whether evidence might come from illegal sources, thereby preventing wrongful convictions.
Conclusion
Looking across the domestic amendment history, 1999 served as a watershed when the offenses against sexual autonomy were independently enacted. Subsequently, the rise of the White Rose Movement led the courts to change their past interpretations of "contrary to will"; however, protection remains insufficient. The public cannot understand the process by which judges find facts, apply laws, and determine sentences, giving rise to the issue of replacing incompetent judges.
Diverse Genders in Legislative Cases
During the process of searching for data, it was found that most cases cited in domestic and foreign literature take heterosexuals as examples, with the vast majority featuring female victims. In reality, women frequently fall victim to sex crimes. In today's society, with the gradual rise of women's rights reclaiming previously deprived or ignored rights, this article views it with optimism. However, the question remains: although men fall victim less frequently, do victims in smaller proportions not need attention? How should homosexuals and transgender groups subjected to sexual assault be protected? These are issues society must consider today. Protection of sexual autonomy should apply universally regardless of gender or sexual orientation. If legislative amendments take only a single gender or a single sexual orientation as a consideration factor, the next White Rose Movement might rise again, and the participating crowd might no longer be women, but homosexuals, transgender individuals, or men. Therefore, it is suggested that when illustrating examples, more reference can be made to homosexuals and transgender individuals as parties, so that the rights protection of homosexuals and transgender persons receives attention.
The future development of sexual autonomy offenses should balance the concepts of victims, offenders, children, and diverse genders. This concept of mutual balance may be criticized as a romantic and utopian idea, and thus considered difficult to achieve. However, perfecting institutional reforms will drive the advancement of correct concepts. If the new problems accompanying the reform of the current system cannot be solved, the reform's effectiveness will likewise find it hard to fully realize the fairness expected by society. We do not deny that the "balance" concept advocated in this article may be difficult to achieve in the current time and space, and institutional reforms will more or less differ from the perfect balance point, but efforts should be made to minimize this difference.
This article affirms the core ideology of the affirmative consent model: "everyone must fully respect another person." This is a concept the entire society must convey and abide by. Judges should also deeply engrave this concept in their hearts when forming mental convictions regarding whether sex crimes are established and the severity of sentencing. In addition, the affirmative consent model uses "whether the actor obtained the counterparty's consent" as the standard, thereby eliminating the controversy of "whether it was contrary to the counterparty's will" and simplifying and clarifying the judgment standard around the counterparty's affirmative consent.
Should Adjudication Consider Public Opinion?
In addition, the public outrage triggered by the judgment in the Ch'ahsian child sexual assault case also extended to whether the application of law should take the public's legal sentiment into account. Professor Li Chia-wen stated that judicial judgments must first comply with the law and the constitution, and can only consider the public's legal sentiment within the scope permitted by law. Judges in the practical field indicate that when interpreting legal texts, there is sometimes "room for choice," and this choice is frequently influenced by the judge's own value judgments. If it is believed that "judges must consider the general public's legal sentiment (public opinion) when making interpretations," this merely represents the judge's own value judgment (values), which in principle should not deviate from the general public's judgment. However, if a judge, based on personal conviction, believes that the general public's legal sentiment runs counter to fairness and justice—for example, if the majority of the public believes homosexuality is a disease—the judge should logically rule against public opinion. Yet, persuading the public at such times is not easy. Because of the expectation that they cannot persuade, some judges lack the courage to go against public opinion. Although possessing this courage is not easy, judges should still bravely do so.
This article argues that regardless of whether the process of the judge's finding of facts and application of law runs counter to public legal sentiment, so-called "fairness and justice" will vary and involve trade-offs based on personal life experience, growth background, and cognition. For example, some agree that women may undergo abortion / termination of pregnancy based on bodily autonomy rights, while others believe women should under no circumstances undergo abortion / termination of pregnancy. If a judge renders a judgment vastly different from public opinion and provokes public outrage, it is not actually wrong; determinations made according to their legal profession and authority remain reasonable. Otherwise, if public opinion is left to decide whether a person's life, liberty, or property "is to be deprived" and "the degree of deprivation," society will degenerate into the tyranny of the majority, and public opinion is sometimes blind, easily manipulated by the media, making it unable to view cases and social issues calmly and rationally.
Transparency in the Process of Applying Law
However, this article emphasizes that the process of judges finding facts and applying laws should explicitly account for the application reasons. Otherwise, if it is merely like the judgment in the Ch'ahsian child sexual assault case (Judgment No. 422 (Criminal, 2010) of the Kaohsiung District Court), stating, "Balancing the criminal motive, means, and all other circumstances, it is deemed that the prosecutor's demand for 7 years and 10 months of imprisonment is excessively heavy, and punishment is hereby sentenced as shown in the main text," yet the court fails to make specific judgmental descriptions of the matters it considered—what specific reasons were there? What were the causes? What are the reasons the prosecutor's requested sentence is too heavy? What are the reasons for a lighter sentence?—the judge's value judgment should specifically describe the standards and contents, allowing everyone to inspect the ruler in the judge's heart. Explicitly describing the reasons for applying the law does not violate independent adjudication; the public or external forces do not thereby directly interfere with the judge's finding of facts and application of law. Making the process of judges applying law more transparent allows the judge's legal viewpoints to be challenged, and after being challenged, judges can more broadly consider other matters in future case adjudications, avoiding falling into self-cognitive blind spots.
If judges cannot specifically describe the considered criminal facts and reasons, and merely express the conclusion of legal application with crude words like "naturally" or "obviously," the public cannot perceive the reasons why the judge mitigated or aggravated the punishment. Can the public then also arbitrarily assume that the imposed sentence is naturally too light or obviously unestablished? Although judges adjudicate in accordance with the law, failing to clearly account for application reasons and considered matters makes it difficult to convince people, and terms like "dinosaur judges" and "doll judges" continue to hover over the judiciary, refusing to dissipate. From the perspective of elevating public legal concepts, transparency in the process of applying law also enables people to review the differences between their own determinations and those of the judges from different perspectives, perhaps realizing deficiencies in their own legal knowledge and discovering premature or excessive conclusions, which helps elevate legal concepts.
Sex Crime Rehabilitation
Finally, how sex offenders should ultimately be rehabilitated should still be determined according to the circumstances of specific cases. However, what cannot be ignored is that every sexual assault behavior represents a disrespect for another person's sexual autonomy; therefore, every treatment program must include gender equality education to enhance sex offenders' gender consciousness and the concept of respecting others. If the concept of gender education is not integrated into the treatment of sex offenders and it is merely unilaterally believed that locking offenders in prison is a cure for the symptoms rather than the disease—because permanently locking offenders in prison does indeed protect social safety on the surface, yet the true causes of sexual assault remain unclarified and future sexual assaults will happen again. What the law should solve are social problems, not merely solving the "person" who committed the crime. Enabling people to successfully reintegrate into society and adapt to society is the true method to solve problems.
In summary of this article, transparency in the application of law is an important element in promoting judicial reform, an important part of elevating the public's legal concepts, and an essential learning direction for legal professionals studying law. There remains vast room for progress in the legislative model amendments of our country's sexual autonomy offenses and the process of judges finding facts and applying laws. Regardless of which legislative method is adopted, the doubts raised by the public must be resolved, and how to grant the public more comprehensive protection of sexual autonomy is well worth pondering.
This article is an AI-generated translation of the original Chinese text. In the event of any discrepancy, the Chinese version shall prevail.