Op-Ed | Limiting the Stalking and Harassment Prevention Act to "Sex or Gender" Will Only Increase Police Work

※ This op-ed was published by ETtoday on November 10, 2021.

The Stalking and Harassment Prevention Act was approaching its final round of caucus negotiations, but one major dispute remained: whether the newly defined offense of stalking and harassment should be limited to conduct "related to sex or gender."

Operational Concerns Do Not Justify Limiting Stalking Motives

Civil-society organizations and opposition parties argued that stalking and harassment occur for many reasons beyond sex or gender and that comprehensive protection should not include an unnecessary motive-based restriction. The Executive Yuan and the governing party, by contrast, worried that an unrestricted definition would cause case numbers to surge and overwhelm police capacity. The debate therefore was not really over whether victims deserve comprehensive protection; the "sex or gender" element was added primarily for operational reasons.

But if the requirement is supposed to reduce case volume, what happens after a victim reports stalking that cannot immediately be linked to sex or gender? Would police refuse the case? Or would investigators have to close it simply because they could not prove the stalker's motive?

After years of waiting for the Stalking and Harassment Prevention Act, victims will understandably find it unacceptable if police cannot protect them after repeated stalking has caused fear and disrupted everyday life merely because they cannot prove that the conduct was "related to sex or gender." It is also important to recognize that, according to a 2018 survey by the Modern Women's Foundation,57 percent of cyberstalkers were strangers or people whose identity was unknown. How is a victim supposed to know the perpetrator's motive in those circumstances?

Proving Motive Would Become the Focus of Investigation and Litigation

If police instead follow the protective purpose of the law, they will accept a report whenever concrete stalking or harassment threatens personal safety, regardless of whether the victim can initially prove a sex- or gender-related motive. If investigation still cannot resolve that element, police will have to refer the case to prosecutors for a legal determination. In other words, a victim-centered approach does not actually reduce police workload. The "sex or gender" element would then add work rather than remove it: police and prosecutors would need to gather evidence of motive, courts would have to litigate the issue at length, and defendants could simply argue that their conduct had nothing to do with sex or gender.

In other words, if law-enforcement agencies use the "sex or gender" element to suppress case volume aggressively, the result may be serious gaps in protection-and another tragedy may eventually force the legislature to amend the law again. If police instead remain committed to protecting life and safety, the requirement will not reduce investigative work at all. It will add a disputed element for police, prosecutors, and courts to prove while diverting judicial resources toward a question that is not inherent in the harmful conduct itself.

The "Sex or Gender" Element Creates More Problems Than It Solves

When the Domestic Violence Prevention Act was first enacted, police likewise lacked adequate staffing and procedures. But because the law proved capable of protecting people in real life, government agencies and society gradually invested the resources necessary to implement it. The Stalking and Harassment Prevention Act should be approached in the same way. If lawmakers believe the definition of stalking and harassment is too broad, they should enact clearly justified exclusions. They should not insert a "sex or gender" element unrelated to the conduct itself and thereby create additional ambiguity in interpretation and enforcement.

The Stalking and Harassment Prevention Act has been delayed for years and expectations are high. We hope today's third round of caucus negotiations will improve the bill and allow it to pass this year, demonstrating a genuine governmental commitment to protecting crime victims and preventing stalking and harassment.

※ This article was published on November 10, 2021 by ETtoday