Ms. Y Case | Amicus Curiae Brief in Disciplinary Court Case No. 110-Cheng-Shang-3

Case No.: Disciplinary Court, Disciplinary Chamber, 110-Cheng-Shang-3 (Yi-Shang Division)
Joint Submitters: Taiwan Coalition Against Violence
National Alliance of Taiwan Women's Associations
Women in Digital Initiative (WIDI)
Taipei Women's Rescue Foundation
Judicial Reform Foundation

I. Procedural Matters

1. Under the Enforcement Act of Convention on the Elimination of All Forms of Discrimination against Women, courts hearing cases concerning women's rights should encourage and permit nongovernmental organizations and human-rights institutions to submit briefs and participate in the proceedings:

   • (1) Article 5, Paragraph 2 of the Enforcement Act of Convention on the Elimination of All Forms of Discrimination against Women (the "CEDAW Enforcement Act") provides:"The government shall work with governments of other countries, domestic and international non-government organizations and human right groups in order to achieve the goal of shielding and advancing all protections of genders and human rights specified in the Convention."Accordingly, to advance women's development, protect gender rights, and promote gender equality, judicial institutions should cooperate with nongovernmental organizations and human-rights institutions when adjudicating disputes involving gender equality and protection of women's rights.

   • (2) CEDAW General Recommendation No. 33 (Appendix 1, pp. 6-7), para. 15(h), recommends that States parties, with respect to justiciability, "cooperate with civil society and community-based organizations to develop sustainable mechanisms to support women's access to justice" "and encourage non-governmental organizations and civil society entities to participate in litigation concerning women's rights."Paragraph 16(c), concerning accessibility of justice systems, further recommends that States parties "ensure that rules on standing allow groups and civil society organizations with an interest in a given case to lodge petitions and participate in the proceedings."Courts hearing cases concerning women's rights should therefore encourage and permit nongovernmental organizations and human-rights institutions to submit briefs and participate in the proceedings.

2. Article 42, first sentence, of the Public Functionaries Discipline Act further provides:"The Disciplinary Chamber shall investigate cases ex officio and may entrust a court or another agency to conduct an investigation."Article 73 provides:"In the second instance, the Disciplinary Chamber shall investigate whether the original judgment violates law and is not bound by the grounds of appeal."The Disciplinary Chamber therefore has independent authority to investigate matters ex officio and is not confined to the parties' assertions. In cases involving women's rights and gender equality, the Court may examine legal opinions and other briefs submitted by civil-society organizations and determine independently whether they should inform the adjudication.

3. Because this case requires legal interpretation of the definition and application of sexual harassment and may materially develop the law governing public functionaries nationwide, the Court should receive a broad range of views and apply by analogy the amicus curiae mechanism under the Constitutional Court Procedure Act:

   • (1) To diversify the process by which courts form their views and ensure that the judicial system can consider reasonable perspectives from different sectors of society, Article 20, Paragraph 1 of the Constitutional Court Procedure Act formally introduced an amicus curiae mechanism. It permits a person, agency, or organization other than a party that considers itself connected with a case before the Constitutional Court to seek permission to submit professional opinions or reference materials within a prescribed period.

   • (2) Although the Public Functionaries Discipline Act and other existing procedural laws do not expressly provide an amicus curiae mechanism, courts should recognize room for analogous application in major public-interest cases so that important social perspectives can be considered fully and judicial decisions do not become detached from society. This is especially true for a court of final review, whose decisions can materially develop the law and significantly influence the judicial system and later cases..

   • (3) This Court adjudicates public-functionary disciplinary cases nationwide and issues final judicial decisions informed by statutes including the Public Functionary Service Act. Its legal interpretations can significantly affect both public functionaries and members of the public. This case concerns serious disciplinary allegations against a high-ranking public functionary. The Court's interpretation of the definition and application of sexual harassment directly implicates protection of gender rights and promotion of gender equality and may materially shape the law governing public functionaries throughout Taiwan. Broad consideration of social perspectives is therefore warranted, and the amicus curiae mechanism should be applied by analogy.

4. The joint submitters-the Taiwan Coalition Against Violence, National Alliance of Taiwan Women's Associations, Women in Digital Initiative (WIDI), Taipei Women's Rescue Foundation, and Judicial Reform Foundation-are not parties to this case and have no legal interest in its outcome. They have no division of work or cooperative relationship with the parties (the referring authority, the Control Yuan, and the respondent), any interested person, or their representatives, and have received no remuneration or financial support from any such person. The submitters have long worked on judicial reform and gender rights and seek to build a justice system worthy of public trust and committed to gender equality. They therefore have professional relevance to the issues presented. In light of the CEDAW Enforcement Act, Articles 42 and 73 of the Public Functionaries Discipline Act, and Article 20 of the Constitutional Court Procedure Act, the Court may accept this amicus curiae brief and consider it within its ex officio investigation and adjudication.

II. Substantive Matters

1. Disciplinary Court Judgment No. 110-Cheng-1 (the "Original Judgment") found that the respondent violated Article 5 of the Public Functionary Service Act and imposed removal from office together with a two-year bar on reappointment. With respect to the Control Yuan's allegation that the respondent violated Article 2, Subparagraph 2 of the Sexual Harassment Prevention Act, however, the Original Judgment held that the conduct did not constitute sexual harassment. Its reasoning may be summarized as follows:

   • (1) Standard applied by the Original Judgment: "In determining whether an actor's words or conduct constitute sexual harassment under Article 2, Subparagraph 2 of the Sexual Harassment Prevention Act, the court should adopt the perspective of a reasonable third person. It should first determine objectively whether the conduct contains sexual demands, sexual connotations, or gender-based discrimination, prejudice, or insult. If so, the court should then consider the specific circumstances-including the background, environment, relationship between the parties, the actor's words and conduct, and the recipient's perception-to determine comprehensively whether the conduct infringed another person's dignity, created an intimidating, hostile, or offensive environment, or improperly affected work or ordinary life." (Original Judgment, p. 40, lines 19-27)

   • (2) The Original Judgment reasoned: "The photograph posted by the respondent on Facebook shows the respondent and Ms. Y fully clothed and facing the camera, with Ms. Y's head resting on the respondent's shoulder, while another unidentified man sits nearby with his back to the camera. Under ordinary social experience and contemporary social understandings, the photograph shows at most that the two had an intimate relationship between a man and a woman; it is difficult to characterize the image itself as containing sexual connotations or gender discrimination.Although the respondent rashly posted the photograph and Ms. Y consequently feared that other private photographs might be exposed, demanded deletion, and later experienced difficulties at work, the conduct could at most be considered a violation of the duty of prudence imposed on public functionaries by Article 5 of the Public Functionary Service Act; it was still difficult to characterize it as sexual harassment." (Original Judgment, p. 40, line 28-p. 41, line 5)
     The Original Judgment further stated that the respondent remained in contact with Ms. Y after marrying Ms. Yen, but that the LINE communications and remittance records largely concerned mutual discussion of their physical and emotional condition and daily lives or requests by Ms. Y for financial assistance during illness or hospitalization, which the respondent agreed to provide. The court therefore found that those contacts likewise did not constitute sexual harassment. (Original Judgment, p. 41, lines 11-16)

2. The Original Judgment's reasoning was defective because it (1) did not consult experts; (2) did not allow the victim, Ms. Y, to present her views; (3) did not describe the full context in which the disputed photograph was posted; and (4) did not consider the parties' power relationship, Ms. Y's position, the economic, professional, and psychological effects of the incident on her, or the respondent's purpose in posting the photograph. Instead, the court concluded from the photograph alone that there was no sexual harassment and did not evaluate whether posting the photograph together with continued pursuit afterward constituted sexual harassment. This approach is inconsistent with CEDAW and risks indirect discrimination against women.

   • (1) Deciding whether sexual harassment occurred solely from the appearance of the photograph, in a decontextualized manner, is inconsistent with the Enforcement Rules of the Sexual Harassment Prevention Act and CEDAW:

     1. The Legislative Yuan enacted the CEDAW Enforcement Act in 2011, giving CEDAW the force of domestic law. Article 4 provides that all government agencies, in exercising their authority, shall comply with the Convention's requirements for protection of gender rights, eliminate gender discrimination, and actively promote gender equality. The exercise of judicial power by the Judicial Yuan and the courts is included within that obligation. Judicial power must therefore be exercised consistently with CEDAW's requirements concerning protection of gender equality.

     2. Article 2 of CEDAW requires States parties to condemn discrimination against women in all its forms and pursue a policy of eliminating it by all appropriate means and without delay. CEDAW General Recommendation No. 28, para. 16(c) (Appendix 2, p. 4, lines 4-10), explains that direct discrimination occurs where different treatment is expressly based on sex or gender, while indirect discrimination occurs where a facially neutral law, policy, program, or practice has a disproportionately negative effect on women. Facially neutral measures can perpetuate inequality when they fail to account for pre-existing disadvantage, structural and historical patterns of discrimination, or unequal power relations between women and men..

     3. To avoid indirect discrimination and ensure that adjudicators consider structural and historical inequality and unequal power relations, Article 2 of the Enforcement Rules of the Sexual Harassment Prevention Act provides:"Whether conduct constitutes sexual harassment shall be determined in light of the specific facts of the individual case, including the background, environment, relationship between the parties, the actor's words and conduct, and the recipient's perception."The rule therefore requires an assessment of the full context in which the conduct occurred, rather than fragmenting the events and evaluating each act in isolation.

     4. The Original Judgment, however, concluded that no sexual harassment occurred based solely on the outward appearance of the disputed photograph. It did not explain the broader circumstances in which the photograph was published-including the background, the parties' relationship, and the surrounding environment-and did not evaluate the respondent's March 2017 posting together with his subsequent efforts to persuade Ms. Y to reverse her decision to end the relationship. That conclusion is inconsistent not only with Article 2 of the Enforcement Rules of the Sexual Harassment Prevention Act, but also with the CEDAW principles of substantive equality, avoidance of gender stereotypes, and prevention of indirect discrimination through attention to unequal power relations and historical context.

     5. The Original Judgment also records that the respondent posted the photograph while serving as Director of the Information Bureau of the Kaohsiung City Government. The respondent admitted: "On one occasion in February 2017, she [Ms. Y] came to see me. She raised the subject of ending the relationship. She said that if I could not end things with my fiancée, she would end things with me. For a moment I felt sorry for her and very much wanted her to stay."The respondent also wrote to Ms. Y on LINE: "I seem to have caused a huge problem... I'm going to resign... because I accidentally made the photo public... actually, it wasn't an accident... I... just wanted to... you... destroy myself for you...isn't that enough?" Witness A also testified:"It was not until Mr. Ting posted the photograph in 2017 and Apple Daily reported it that everyone knew..."LINE messages between Ms. Y and the respondent beginning March 3, 2017 repeatedly referred to the consequences of the photograph: people in political circles, among colleagues, and among assistants were circulating claims that she had been a mistress who broke up a family and caused Ms. Yen and the respondent to separate; Ms. Y said she was so frightened that she did not dare cover her reporting beat and felt unable to face others; the respondent apologized to her. (Original Judgment, p. 37, line 31-p. 38, line 9)

     6. The record further shows that, after marrying on April 5, 2017, the respondent continued asking Ms. Y to reverse her decision to end the relationship-a fact the respondent admitted. (Original Judgment, p. 12, lines 27-28.) Yet the first-instance court fully credited the respondent's account that the group photograph posted on Facebook did not amount to sexual harassment (Original Judgment, p. 36, lines 6-28) and his characterization of their contacts after the posting and even after his marriage as mutual interactions. The first-instance court did not address the parties' power relationship, the respondent's purpose in posting the photograph, the actual impact on Ms. Y, or the connection between the posting and the respondent's continued expressions of concern and pursuit. Nor did it examine whether, in light of Ms. Y's multiple constraints and vulnerabilities, the respondent's conduct created "an intimidating, hostile, or offensive environment" or "improperly affected her work or ordinary life."By giving substantial weight to the respondent's account without undertaking that contextual analysis, the court failed to evaluate whether the conduct constituted hostile-environment sexual harassment under Article 2, Subparagraph 2 of the Sexual Harassment Prevention Act in accordance with CEDAW's requirement of substantive equality for women.

     7. In short, the Original Judgment used the "objective standard of a reasonable third person" to conclude that publicly posting the group photograph on Facebook did not constitute hostile-environment sexual harassment. Although facially neutral, that approach risked disregarding substantive gender inequality and the victim's experience, thereby producing indirect discrimination inconsistent with Article 2 of the Enforcement Rules of the Sexual Harassment Prevention Act and paragraph 16 of CEDAW General Recommendation No. 28.

   • (2) Failure to consult experts and to hear the victim's views is inconsistent with CEDAW General Recommendation No. 33:

     1. CEDAW General Recommendation No. 33 (Appendix 1), addressing elimination of discrimination against women in justice systems, emphasizes among other things that (1) courts must interpret law in accordance with the principle of substantive equality; (2) justice systems must avoid stereotypes and gender bias; and (3) in cases involving gender-based violence in particular, stereotypes can weaken victims' claims and strengthen perpetrators' defenses.With respect to access to justice, paragraph 15(a) and (g) recommends that States parties ensure that law recognizes and incorporates rights and corresponding legal protections and strengthen the justice system's responsiveness to gender-equality issues;and, where unequal power relations prevent women from receiving a fair trial, adjust rules governing the burden of proof to ensure equality between the parties. In this case, consulting experts on gender issues and hearing directly from Ms. Y would help the panel develop adequate gender sensitivity and assess evidentiary burdens in context.

     2. The first-instance court neither consulted relevant experts nor heard Ms. Y's views. Procedurally, it therefore failed to satisfy the access-to-justice requirements reflected in paragraph 15 of CEDAW General Recommendation No. 33, resulting in an incomplete investigation and an error of law.

III. The Original Judgment's conclusion that the respondent's conduct did not constitute sexual harassment failed to give adequate effect to Article 2 of the Enforcement Rules of the Sexual Harassment Prevention Act and paragraph 16 of CEDAW General Recommendation No. 28. Its reasoning lacked sufficient gender sensitivity and risked reproducing existing gender inequality. To uphold gender equality, protect people of all genders from sexual harassment in everyday life, and prevent opportunistic misuse of unequal power, the Court should reconsider the definition and legal analysis of sexual harassment in light of the gender-equality principles discussed above. We respectfully submit this opinion for the Court's consideration.

Respectfully submitted to:
Appellate Division, Disciplinary Court

Appendices

1. CEDAW General Recommendation No. 33
2. CEDAW General Recommendation No. 28
3. Amicus Curiae Brief in Disciplinary Court Case No. 110-Cheng-Shang-3 (PDF)