Legal Opinion on the Appellate Case, Case Cheng-Shang-Tzu No. 3, 2021, of the Disciplinary Court's Disciplinary Tribunal

 

Legal Opinion on the Appellate Case, Case Cheng-Shang-Tzu No. 3, 2021, of the Disciplinary Court's Disciplinary Tribunal

In response to the matters inquired by Your Court, our legal opinions are provided as follows:

1. What is the definition of "hostile environment sexual harassment" under Article 2, Paragraph 2 of the Sexual Harassment Prevention Act? Furthermore, what are the relevant judgment criteria in this regard under the "Convention on the Elimination of All Forms of Discrimination against Women" (CEDAW) adopted by the United Nations General Assembly (the content of Article 2 of the Enforcement Rules of the Sexual Harassment Prevention Act)? When Male A, the Director of the Information Bureau of a special municipality, commenced a relationship with his journalist girlfriend, Female B, and Female B subsequently wanted to break up with Male A, Male A, in an attempt to win her back, intentionally uploaded photographs of the two of them taken during their relationship onto Facebook, thereby causing trouble for Female B at work, does this constitute "hostile environment sexual harassment"? If Male A continued to pursue Female B through methods other than uploading the aforementioned photographs, or even continued to express his pursuit of Female B after marriage, would this also constitute sexual harassment?

(1) What is the definition of "hostile environment sexual harassment" under Article 2, Paragraph 2 of the Sexual Harassment Prevention Act?

According to current laws and regulations concerning the prevention of sexual harassment, ordered by their chronological enactment, they are the Act for Gender Equality in Employment (hereinafter referred to as the Employment Gender Equality Act), the Gender Equity Education Act, and the Sexual Harassment Prevention Act (hereinafter collectively referred to as the Three Sexual Harassment Prevention Acts). The Employment Gender Equality Act primarily protects the right to work, the Gender Equity Education Act primarily protects the right to education, and the Sexual Harassment Prevention Act primarily protects personal safety. Their legislative intents and appeals differ; therefore, the Three Sexual Harassment Prevention Acts also vary in provisions concerning the legislative definition of sexual harassment, competent authorities, application for investigation or complaint procedures, and investigative procedures.

However, regarding the legislative definition of sexual harassment, although there are differences in wording and constitutive elements, they are basically categorized into two types: "hostile environment sexual harassment" and "quid pro quo sexual harassment." In practice, "hostile environment sexual harassment" is particularly the primary type of sexual harassment behavior, namely, "where anyone, in respect of an employee's execution of official duties, makes sexual demands, uses language or behaviors of a sexual nature or gender discrimination towards the employee, which results in a hostile, intimidating, or offensive working environment, thereby infringing upon or interfering with their personal dignity, personal freedom, or affecting their job performance" as referred to in Article 12, Paragraph 1, Subparagraph 2 of the Employment Gender Equality Act; "engaging in unwelcome verbal or physical conduct of a sexual nature or gender discrimination in an explicit or implicit manner, thereby affecting other persons' personal dignity, or opportunities or performance in study or work" as referred to in Article 2, Subparagraph 4, Item 1 of the Gender Equity Education Act; and "sexual harassment as referred to in this Act means any conduct of a sexual or gender-related nature implemented against the will of another person, other than sexual assault crimes, and which involves any of the following circumstances: ... 2. Causing damage to another person's personal dignity, or creating an intimidating, hostile, or offensive environment, or improperly affecting the conduct of their work, education, training, service, plan, activity, or normal life through displaying or broadcasting texts, drawings, sounds, images, or other articles, or through discriminatory or insulting speech or conduct, or by other means" as referred to in Article 2, Paragraph 2 of the Sexual Harassment Prevention Act. Generally, this refers to unwelcome or unwanted sexual demands, or other verbal or physical behaviors directed at another person, which interfere with the conduct of their work, education, training, or normal life, or create an environment that makes them feel terrified, hostile, or offended.

Regarding the legislative definition and identification standards of sexual harassment, the Three Sexual Harassment Prevention Acts should be further elaborated upon on at least the following two points:

1. From "sexual nature or gender discrimination" to "sexual or gender-related"

According to the Employment Gender Equality Act and the Gender Equity Education Act, the definitions of "hostile environment sexual harassment" both take "language or conduct of a sexual nature or gender discrimination" as a constitutive element. However, the Sexual Harassment Prevention Act emphasizes that "hostile environment sexual harassment" is "conduct of a sexual or gender-related nature" (see also Article 3 of the Stalking and Harassment Prevention Act, which stipulates that stalking and harassment behaviors referred to in this Act also mean repeatedly or continuously engaging in unwelcome conduct of a sexual or gender-related nature against a specific person using personnel, vehicles, tools, equipment, electronic communications, the internet, or other methods). The reason why the definition of "hostile environment sexual harassment" evolved from "sexual nature or gender discrimination" to "sexual or gender-related" indeed harbors profound meaning. Although "sexual nature or gender discrimination" can precisely describe what is stated in paragraph 18 of CEDAW General Recommendation No. 19: "Sexual harassment includes such unwelcome sexually determined behavior as physical contact and advances, sexually colored remarks, showing pornography and sexual demands, whether by words or action. Such conduct can be humiliating and may constitute a health and safety problem; it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment, including recruitment or promotion, or when it creates a hostile working environment." However, unwelcome sexual harassment behavior should not be restricted to the premise of having a "sexual nature." In interpersonal interactions, if the language or conduct possesses a "sexual nature or gender discrimination," considering the identification criteria for sexual harassment, there is admittedly no need for further discussion; however, when such language or conduct involves excessive pursuit or stalking behavior (such as "monitoring, observing, tracking, or ascertaining the whereabouts of a specific person," "approaching the domicile, residence, school, workplace, frequently frequented places, or activity venues of a specific person by lurking, waiting, following, or similar means," "interfering with a specific person by telephone, fax, electronic communication, the internet, or other equipment," or "demanding dates, contact, or engaging in other pursuit behaviors towards a specific person" as referred to in Article 3 of the Stalking and Harassment Prevention Act), or even various measures taken due to emotional factors, even if the content of the harassment is unrelated to "sexual nature or gender discrimination," as long as it has caused the counterparty to feel "unwelcome" and is related to "sex or gender," it may naturally also be identified as sexual harassment. Accordingly, the Judgment 104-Su-201 of the Taichung High Administrative Court held that: "'A graceful and demure lady is a good match for a gentleman' is inherently a part of normal interpersonal interaction; however, when the other party has clearly expressed that the conduct has crossed the boundary, made them feel uncomfortable, and expressed rejection, one should know when to retreat and refrain from further offense. In this case, the victim expressed to the plaintiff on July 17, 2013, that his excessive concern had made her uncomfortable and crossed the boundary, clearly expressing that she was being harassed and felt uncomfortable. The plaintiff subsequently sent LINE messages continuously; unable to bear the harassment, the victim blocked the plaintiff on LINE on July 22, 2013. The plaintiff then resorted to sending messages via E-MAIL and the internal office telephone. With no other choice, the victim informed the plaintiff on July 24 of the same year that she had long had a boyfriend and asked the plaintiff not to harass her anymore; nevertheless, the plaintiff did not cease his conduct, causing the victim extreme fear. On July 29 of the same year, the victim informed the plaintiff that this was her final and solemn warning, and that further harassment would be met with legal remedies. ... Looking at the messages transmitted by the plaintiff to the victim via LINE, E-MAIL, and notes, they were not the well-intentioned clarifications of facts and communications to resolve misunderstandings as claimed by the plaintiff. The plaintiff's assertions that he and the victim were colleagues, that his conduct was normal male-female pursuit behavior, and that it was purely a well-intentioned clarification of facts and communication to resolve misunderstandings without any intent of sexual harassment are untenable. Even if the victim and the plaintiff had initially exchanged contact messages, accepted the plaintiff's gifts, or agreed to dine together, this was merely the general collegial friendship before the victim felt uncomfortable and informed the plaintiff not to harass her further, and this has no bearing on the subsequent sexual harassment established against the plaintiff."

2. "Hostile environment sexual harassment" and specific counterparties

In understanding "hostile environment sexual harassment," special attention should be paid to the fact that the so-called "environment that makes someone feel terrified, hostile, or offended" is not limited to being directed at a specific counterparty. Therefore, particularly in schools and workplaces, if the perpetrator deliberately creates or constructs a learning or working environment that makes a person feel hostile, intimidated, or violated, which is disadvantageous to the person through harassment that lacks sexual nature or gender discrimination—such as telling dirty jokes, displaying pornographic pictures, or making sexual taunts in the learning or workplace, causing those present to feel deeply embarrassed or uncomfortable—this constitutes a typical case of hostile environment sexual harassment among the patterns of sexual harassment. Accordingly, in hostile environment sexual harassment, the victim is not necessarily the specific party directly harassed; meaning that although the hostile environment shaped by the perpetrator is not targeted at a specific object, anyone who is identifiable based on general characteristics (such as being present and having a particular power disparity with the perpetrator), though not specific yet identifiable, who serves as a witness or actual experiencer of such behavior and feels extremely disgusted by it, may naturally qualify as a victim of a hostile environment sexual harassment incident. In this regard, special attention should be paid to the factor of power disparity. Thus, Article 30, Paragraph 7 of the Gender Equity Education Act explicitly stipulates that the Gender Equity Education Committee shall consider the power disparity between both parties when investigating and handling cases, while Article 16 of the Enforcement Rules of the Gender Equity Education Act states that power disparity refers to "the unequal conditions of status, knowledge, age, physical strength, identity, ethnicity, or resources existing between the parties." Hostile environment sexual harassment accompanied by power disparity factors is a norm. Among these, gender as a factor of power disparity is also noteworthy. In the workplace sexual harassment case of Judgment 102-Su-604 of the Taiwan Hsinchu District Court, the following description was made: "While Taiwan's economic development has stepped into a cross-century era, women in the workplace, in addition to enduring existing factual problems such as recruitment restrictions, unequal pay for equal work, unfair promotions, and singlehood clauses, also have to face the embarrassing situations that occur at work—namely the fear, helplessness, and infringement of workplace sexual harassment. Furthermore, because the perpetrator may be a superior or colleague whom the woman cannot avoid meeting, it places women in a state of helplessness. One of the types is a hostile working environment, where embarrassing physical movements and language cannot be avoided in the working environment. Although women feel aggrieved regarding their own circumstances, they are limited by their weak position and unable to change the status quo." Moreover, power disparity is the core element of quid pro quo sexual harassment¹.

Accordingly, under conditions of power disparity, attention should be paid to whether the evaluation of such conduct aligns with the requirements of professional ethics (such as teachers, judicial officials, etc.). Judgment 105-Ceng-Zai-Zhi-1 of the Disciplinary Court of the Judicial Yuan stated: "Even though the plaintiff engaged in hugging and hand-holding when Assistant Y exhibited proactive ingratiating behavior and did not object, and upon attempting to kiss her on the corner of the mouth, immediately ceased the improper conduct upon Assistant Y's objection without continuing, and promptly escorted Assistant Y back, it still constitutes overstepping boundaries and improper speech and conduct. ... This does not constitute the illegal and derelict conduct of utilizing judicial authority as alleged in the second-instance judgment,² but rather improper speech and conduct." The same judgment further stated: "A person who is a public servant must naturally be bound by laws related to public servants and public servant ethical norms, and their freedom is smaller in scope compared to ordinary people; nevertheless, they do not lose their human dignity merely because they are public servants. By the same token, a person who is a judge must naturally be bound by relevant laws and judicial ethical norms, and their binding force is deeper than that of public servants, and their freedom is naturally smaller in scope compared to public servants; nevertheless, they do not lose their human dignity merely because they are judges. Furthermore, regardless of whether it is a civil, criminal, or administrative case, issues of behavioral evaluation are frequently involved. Behavioral evaluation involves legal philosophy; law enforcement officers must naturally tread cautiously, integrate various social viewpoints to make objective and rational legal evaluations, and should not heed irrational viewpoints among them." However, as stated in the evaluation resolution books Evaluation 107-Ping-3, Ping-4, and Ping-6 of the Judges Evaluation Committee, the judge-rapporteur of the aforementioned judgment (namely the evaluated judge in this evaluation resolution book) "ignored the fact that when the Disciplinary Tribunal delivered its judgment on the case in question, it focused on the facts that Judge Ch'en 〇〇 invited the female assistant for a walk before the assistant's contract renewal meeting and seized the opportunity to steal a kiss; and that after the female assistant requested no further entanglement, Judge Ch'en 〇〇 still made excuses to summon the female assistant to his office, and when the female assistant wanted to leave, Judge Ch'en 〇〇 still pressed against the door panel to prevent her from leaving. The evaluated judge, during media interviews, repeatedly emphasized the so-called 'attempted extramarital affair' which was not ascertained in the judgment. The evaluated judge's numerous statements to the media clearly ignored the power disparity existing between a judge and a female assistant in the workplace. Utilizing his married status, leveraging his official position and the opportunity afforded by the physical space, Judge Ch'en 〇〇 made improper emotional demands. After being asked not to entangle, he once again demanded through physical presence in the office that the female assistant explain private emotional matters. The severity of such conduct profoundly implicates judicial credibility. Yet the evaluated judge blindly emphasized the so-called 'mutual affection' of the female assistant, lacking objectivity in the statement of facts and exhibiting obvious bias. He overlooked the female assistant's emotional and personal autonomy and the requirement for her workplace to be free from interference, which easily resulted in improper misunderstandings of the female assistant's character. Moreover, the evaluated judge ignored the aforementioned unequal power relationship. Those holding judicial offices should be subject to higher ethical requirements, ..."

In addition, given that the concept of "hostile environment sexual harassment" has its background in legal reception, judicial practice frequently cites the spirit of U.S. law to interpret what constitutes a "hostile environment." For example, Judgment 107-Jian-98 of the Taipei District Court pointed out: "... Because hostile environment sexual harassment was mainly formulated with reference to U.S. law, the following references the 'Policy Guidance on Current Issues of Sexual Harassment' published by the U.S. Equal Employment Opportunity Commission (EEOC) to interpret various elements of hostile environment sexual harassment prescribed in our country's Sexual Harassment Prevention Act. ... Regarding the element of 'conduct against the will' in hostile environment sexual harassment, the focus is not whether the conduct originated from the victim's voluntariness, but whether the conduct was unwelcome. This must be judged by whether the victim solicited or incited the conduct, and whether the victim viewed the conduct as undesirable or offensive; if disputed, it must be judged based on the totality of circumstances. Furthermore, regarding the portion where 'conduct is related to sex or gender,' it determines whether the conduct has a sexual nature by adopting the perspective of a 'reasonable person,' observing how an ordinary reasonable person would react under similar environments and circumstances, while still considering the victim's perspective and avoiding stereotypes regarding acceptable conduct. 3. As for the so-called 'hostile environment,' it must be sufficiently severe or pervasive to create a hostile environment. This is also observed from the objective perspective of a 'reasonable person,' considering factors such as whether the conduct is verbal, physical, or both, the frequency of repeated conduct, whether the conduct is hostile and overtly offensive, the identity of the perpetrator, whether others participated in implementing the sexual harassment, and whether the sexual harassment was directed at more than one person. Only when conduct 'unreasonably' creates an environment of fear, hostility, or offense does it constitute a hostile environment; trivial or mere annoying flirtation, innuendo, or vulgar remarks may not constitute a hostile environment. In cases of verbal sexual harassment, the nature, frequency, context, and target of the speech must be probed, and whether the conduct constitutes sexual harassment must be judged according to the totality of circumstances rule. Potential issues include whether the perpetrator singled out the victim, whether the victim participated, the relationship between the perpetrator and the victim, and whether the speech is hostile and derogatory." However, in application, attention should be paid to how what constitutes "mere annoying flirtation, innuendo, or vulgar remarks" may involve differences in national conditions and cultures.

(2) Criteria for identifying sexual harassment

The evaluation of whether a perpetrator's conduct constitutes sexual harassment against a victim is based on the subjective feelings of the victim rather than the perspective of the perpetrator; this can be said to be a settled view in judicial practice (see Judgment 106-Pan-15 of the Supreme Administrative Court). Particularly, except for the crime of sexual harassment under Article 25 of the Sexual Harassment Prevention Act, whether the perpetrator had the intent to commit sexual harassment is immaterial. A typical discussion is as follows: Since the constitutive elements of sexual harassment prescribed in Article 2, Paragraph 2 of the Sexual Harassment Prevention Act include subjective factors such as "damaging another person's personal dignity" or "creating a situation that makes one feel terrified, hostile, or offended," the identification of "sexual harassment" conduct should consider the subjective feelings and perceptions of the victim. Whether the perpetrator had the intent to commit sexual harassment is immaterial (the perpetrator's intent is not a constitutive element of sexual harassment under this article, whereas the crime of sexual harassment under Article 25 of the same Act requires intent). This is evident from Article 2 of the Enforcement Rules of the same Act, which stipulates: "The identification of sexual harassment shall be made on a case-by-case basis by examining specific facts such as the background, environment, relationship of the parties, speech and conduct of the perpetrator, and the cognition of the counterparty." (See Judgment 105-Pan-192 of the Supreme Administrative Court).

However, regarding the consideration of the victim's subjective feelings, the following arguments should be supplemented:

1. The feelings of a "reasonable victim" should still serve as the benchmark for evaluating the subjective feelings of the victim

For instance, Judgment 107-Jian-5 of the Keelung District Court stated: "According to Article 2, Paragraph 2 of the Enforcement Rules of the Gender Equity Education Act, sexual harassment incidents shall be comprehensively judged based on specific facts such as the background of the case, the relationship of the parties, the environment, the speech and conduct of the perpetrator, and the cognition of the counterparty. Although the feeling of being violated or the personal perception and subjective feelings of the victim are not solely taken as the identification benchmark, it still proceeds from the feeling of being violated by the victim and thinks from the personal viewpoint of the victim (such as 'cognition of the counterparty'), considering under the standard of a 'reasonable victim' whether an ordinary person placed in the same background, relationship, and environment would feel that the perpetrator's speech or conduct constitutes sexual harassment." Judgment 107-Jian-Shang-169 of the Taipei High Administrative Court also stated: "'The identification of sexual harassment shall be made on a case-by-case basis by examining specific facts such as the background, environment, relationship of the parties, speech and conduct of the perpetrator, and the cognition of the counterparty.' Article 2 of the Enforcement Rules of the Sexual Harassment Prevention Act expressly provides thus. The identification of whether this case constitutes sexual harassment should examine facts such as the background, environment, relationship of the parties, speech and conduct of the perpetrator, and the cognition of the counterparty, and then be concretely determined on a case-by-case basis from the perspective of an ordinary victim in the same state, supplemented by the objective standard of a reasonable victim." Judgment 106-Su-1950 of the Taipei District Court stated that the Employment Gender Equality Act "stipulates that sexual harassment refers to one of the following two situations: 1. Where an employee, in the execution of official duties, is subjected by anyone to sexual demands, or language or conduct of a sexual nature or gender discrimination, which creates a hostile, intimidating, or offensive working environment, thereby infringing upon or interfering with their personal dignity, personal freedom, or affecting their job performance. 2. Where an employer makes explicit or implicit sexual demands, or uses language or conduct of a sexual nature or gender discrimination towards an employee or job applicant as a condition for the establishment, continuation, change, or assignment, allocation, remuneration, performance appraisal, promotion, demotion, reward, or punishment of an employment contract. According to Article 12 of the Employment Gender Equality Act, the identification of sexual harassment in the preceding paragraph shall be made on a case-by-case basis by examining specific facts such as the background, environment, relationship of the parties, speech and conduct of the perpetrator, and the cognition of the counterparty. Therefore, sexual harassment, pursuant to the above provisions, includes an employer engaging in explicit or implicit sexual demands and language or conduct of a sexual nature or gender discrimination toward an employee, and must be examined using the 'reasonable victim' standard—that is, identified from the perspective of the harassed person's cognition, rather than judged based on the perpetrator's own subjective view." Judgment 106-Su-245 of the Kaohsiung High Administrative Court also stated: "... The identification of sexual harassment should start from the victim's feeling of being violated, thinking from the victim's personal viewpoint, focusing on the victim's subjective feelings and the impact suffered, rather than being determined by the perpetrator's intent to violate. Therefore, sexual harassment incidents shall be comprehensively judged based on specific facts such as the background of the incident, the relationship of the parties, the environment, the speech and conduct of the perpetrator, and the cognition of the counterparty, and determined under the standard of a reasonable victim whether sexual harassment constitutes, rather than being determined purely by the victim's feeling of being violated or personal perception and subjective feelings."

Accordingly, since the victim's subjective feelings are a constitutive element of sexual harassment, if they do not run counter to the standard of a reasonable victim, they should naturally be respected. Judgment 105-Pan-192 of the Supreme Administrative Court thus pointed out: "While the original judgment stated that 'although the speech and conduct committed by the plaintiff were inappropriate and caused the victim a feeling of discomfort, they should indeed receive a negative evaluation,' it nevertheless held that 'judged objectively, the above-mentioned speech and conduct were not sufficient to damage another person's personal dignity, create a situation that makes one feel terrified, hostile, or offended, or improperly affect work or the conduct of normal life.' The reasoning is already somewhat contradictory. Moreover, the original court overlooked the fact that the victim's subjective feelings are a constitutive element of sexual harassment, and merely relied on the victim's complaint that she was treated like a streetwalker, feeling humiliated and uncomfortable, and feeling offended, as being her special personal emotional feelings at the moment, thereby reasoning that the appellee's conduct did not constitute sexual harassment as prescribed in Article 2 of the Sexual Harassment Prevention Act. This is also inappropriate."

2. Balancing the victim's subjective feelings using the objective standard of a "reasonable victim"

In judicial practice, it is not uncommon to emphasize that "whether sexual harassment constitutes, at the legal level, should admittedly adopt the objective identification standard of an ordinary reasonable individual; however, on the part of the victim, there may be subjective feelings that differ from the objective standard" (see Judgment 96-Shang-878 of the Taiwan High Court); and "whether sexual harassment constitutes, at the legal level, should adopt the objective identification standard of an ordinary reasonable individual, but on the part of the victim, appropriate protection of their subjective feelings should also be valued" (see Judgment 107-Bei-Jian-13469 of the Taipei District Court). Accordingly, legal theory advocates that a victim can set a reasonable boundary for behavior they deem acceptable and inform the other party; if the other party still crosses that boundary, it can also be determined that sexual harassment has been constituted³.

Judgment 107-Jian-5 of the New Taipei District Court thus pointed out: "As for whether sexual harassment is established, the judgment standard is based on the victim's own feelings—meaning that as long as the harassed person (she or he) subjectively feels uncomfortable or unwelcome towards such behavior, it is sufficient to constitute sexual harassment. However, to avoid situations where victims are overly sensitive, when handling cases on a case-by-case basis, the subjective condition is generally based on the so-called 'reasonable victims,' supplemented by the objective standard of the so-called 'reasonable persons,' striving to give equal protection to both parties of the incident. As for the unreasonableness of sexual harassment behavior, while the controversy of subjective versus objective theories exists regarding 'unreasonableness,' in reality, a victim can set the behavioral boundaries they can personally accept. Once the victim sets a reasonable boundary, anyone crossing that boundary is usually considered to constitute sexual harassment behavior, which is stated in advance. ... When making a complaint, the third party expressed the subjective feeling that the plaintiff's conduct made her uncomfortable. Judging from the complaint interview of the third party, the third party should be regarded as a normal individual; therefore, the defendant believes that the third party meets the element of a 'reasonable victim' in this type of incident. Furthermore, the identification of a sexual harassment incident, in addition to being based on the subjective feelings of the victim of such behavior as mentioned above, shall also be conducted based on specific facts such as the background, environment, relationship of the parties, speech and conduct of the perpetrator, and the cognition of the counterparty in accordance with Article 2 of the Enforcement Rules of the Sexual Harassment Prevention Act, which also requires an overall objective investigation based on factual circumstances."

3. Nature and function of the identification standards for sexual harassment

In summary, the identification of sexual harassment shall be made on a case-by-case basis by examining specific facts such as the background, environment, relationship of the parties, speech and conduct of the perpetrator, and the cognition of the counterparty, which is jointly stipulated by the Three Sexual Harassment Prevention Acts (see Article 12, Paragraph 2 of the Employment Gender Equality Act, Article 2 of the Enforcement Rules of the Sexual Harassment Prevention Act, and Article 2, Paragraph 2 of the Enforcement Rules of the Gender Equity Education Act). Combined with judicial practice, the nature and function of this identification standard generally fall into three categories:

(1) Serving as the basis that the perpetrator does not need to have the intent to commit sexual harassment

A typical discussion in practice is as follows: Since the constitutive elements of sexual harassment prescribed in Article 2, Paragraph 2 of the Sexual Harassment Prevention Act include subjective factors such as "damaging another person's personal dignity" or "creating a situation that makes one feel terrified, hostile, or offended," the identification of "sexual harassment" conduct should consider the subjective feelings and perceptions of the victim. Whether the perpetrator had the intent to commit sexual harassment is immaterial (the perpetrator's intent is not a constitutive element of sexual harassment under this article, whereas the crime of sexual harassment under Article 25 of the same Act requires intent). This is evident from Article 2 of the Enforcement Rules of the same Act, which stipulates: "The identification of sexual harassment shall be made on a case-by-case basis by examining specific facts such as the background, environment, relationship of the parties, speech and conduct of the perpetrator, and the cognition of the counterparty." (See Judgment 105-Pan-192 of the Supreme Administrative Court).

(2) Serving as the basis for weighing whether the victim's subjective feelings meet the standard of a "reasonable victim"

A typical discussion in judicial practice is as follows: The identification of sexual harassment shall be comprehensively judged based on specific facts such as the background, environment, relationship of the parties, speech and conduct of the perpetrator, and the cognition of the counterparty. That is, attention should also be paid to whether the subjective feelings of the victim conform to the evaluation of a "reasonable victim." Once a perpetrator is evaluated with the disreputable legal judgment of having established sexual harassment, the negative impact formed on their personal dignity, family life, and social activities is profound and enduring, sometimes indelible even for a lifetime. Therefore, in determining whether conduct establishes speech and conduct directed at another person against their will and related to sex or gender under Article 2 of the Sexual Harassment Prevention Act, while the subjective feelings of the counterparty cannot be ignored, neither can the counterparty's subjective perception be taken as the sole identification benchmark. Objective specific circumstances such as the background, environment, relationship and interaction of the parties, and the speech and conduct of the perpetrator must also be examined for a comprehensive judgment. In particular, one must not pander to trends, distort principles to cater to popular sentiment, or arbitrarily fabricate charges to penalize. This is clear from the aforementioned Article 2 of the Enforcement Rules of the Sexual Harassment Prevention Act. In other words, if a perpetrator's actions with a legitimate purpose, in the course of execution, inadvertently touch another person's limbs, and judging by general societal consensus regarding the severity of its substantive impact on others' rights and interests, it cannot be objectively considered sufficient to disparage the counterparty's personal dignity or plunge them into a hostile or insulted environment, one cannot simply rely on the counterparty's special feelings to assert that the formal appearance of touching another person's limbs possesses punishable substantive illegality and penalize it under Article 20 of the Sexual Harassment Prevention Act (see Judgment 110-Su-125 of the Taichung High Administrative Court and Judgment 107-Jian-98 of the Taipei District Court). Alternatively, it has been stated that "the identification of 'hostile environment sexual harassment,' because it is not as clear as 'quid pro quo sexual harassment' and is mixed with many subjective factors, generally adopts the 'reasonable person standard' in identification—that is, judged by the standard of an ordinary reasonable man or reasonable woman, rather than solely adopting the victim's subjective perception. Moreover, it must reach a situation that forces people to endure offensive behavior or drives people into a feeling of discomfort—meaning that the conduct creates an environment of hostility, intimidation, or offense toward the victim, thereby infringing upon or interfering with their personal dignity, personal freedom, or affecting their life" (see Judgment 110-Su-333 of the Kaohsiung High Administrative Court).

(3) Serving as the basis for defining the scope of "other private body parts" in the constitutive elements of Article 25 of the Sexual Harassment Prevention Act

Article 25 of the Sexual Harassment Prevention Act explicitly stipulates: "Any person who, with the intent to sexually harass, catches a person unawares and kisses, embraces, or touches their buttocks, breasts, or other private body parts shall be sentenced to fixed-term imprisonment of not more than two years, detention, or a fine of not more than NT$100,000 or both. The crime in the preceding paragraph shall be prosecuted only upon complaint." Regarding what constitutes "other private body parts," judicial practice frequently invokes the standards for identifying sexual harassment. For example, Judgment 106-Yi-354 of the Kaohsiung Bridge District Court stated: "... According to Article 25, Paragraph 1 of the Sexual Harassment Prevention Act, it takes as its constitutive elements the intent to sexually harass, catching a person unawares, and kissing, embracing, or touching their buttocks, breasts, or other private body parts. ... Moreover, this paragraph exemplifies prohibited touching of other's body parts such as buttocks and breasts, and to prevent omissions in protecting the victim's freedom of bodily determination regarding other body parts, it additionally prescribes 'other private body parts' as a general supplementary norm protecting the object of the victim's freedom of bodily determination. This so-called 'other private body parts' is an indeterminate legal concept. Objectively, it includes male and female genitals, inner thighs, groin, and other body parts that belong to bodily privacy or sexual sensitive areas in ordinary social concepts. As for other body parts—such as ears, neck, navel, waist, shoulders, back, calves, outer thighs, and knees of male and female bodies—whether they fall under the aforementioned 'other private body parts' prescribed in the statutory text must still be comprehensively judged based on social consensus and individual circumstances of the victim, while examining specific facts such as the background, environment, relationship of the parties, speech and conduct of the perpetrator, and the cognition of the counterparty (referencing Article 2 of the Enforcement Rules of the Sexual Harassment Prevention Act)." Judgment 108-Yi-58 of the Yilan District Court also stated: "... Whether it belongs to the 'other private body parts' mentioned in the preceding article must still be comprehensively judged based on social consensus, the victim's individual circumstances, and specific facts such as the incident background, environment, relationship of the parties, the perpetrator's speech and conduct, and the counterparty's cognition. Weighing general interpersonal relations between the sexes, a woman's waist is not a part that may be arbitrarily caressed or embraced under normal etiquette, and it is a part that ordinary women do not wish to be touched or embraced without cause..."

(3) What is the relevant content under the "Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)" adopted by the United Nations General Assembly?

1. Courts have a positive obligation to actively apply CEDAW and its General Recommendations

According to Article 7 of the Constitution and Article 10, Paragraph 6 of the Additional Articles of the Constitution, respectively, the people of the Republic of China, regardless of sex, religion, race, class, or political party, shall be equal before the law; the State shall protect the personal dignity of women, safeguard their personal safety, eliminate gender discrimination, and promote substantive equality between the sexes. Furthermore, the Executive Yuan submitted CEDAW to the Legislative Yuan for deliberation on July 8, 2006, which was passed by the Legislative Yuan on January 5, 2007, and approved and promulgated by the President with the instrument of accession deposited on February 9 of the same year. Subsequently, the Legislative Yuan passed the "Enforcement Act of the Convention on the Elimination of All Forms of Discrimination against Women" in three readings on May 20, 2011, which was promulgated by the President on June 8 of the same year and took effect on January 1, 2012. Articles 2, 3, and 4 of the Enforcement Act respectively stipulate that the provisions of the Convention proclaiming the protection of gender human rights and the promotion of gender equality have the effect of domestic laws; the application of laws, regulations, and administrative measures provided under the Convention shall reference the intent of the Convention and the interpretation of the Convention by the United Nations Committee on the Elimination of Discrimination against Women; and government agencies at all levels in exercising their powers and functions shall comply with the provisions of the Convention concerning the protection of gender human rights, eliminate gender discrimination, and actively promote the realization of gender equality. Pursuant to the provisions of the aforementioned Constitution, Additional Articles of the Constitution, and Enforcement Act, this Court naturally must actively apply CEDAW and the General Recommendations issued by the Committee on the Elimination of Discrimination against Women (hereinafter referred to as the CEDAW Committee). This is also consistent with paragraph 7 of CEDAW General Recommendation No. 28, which clarifies that the scope of general obligations of States parties set forth in Article 2 of CEDAW should be interpreted in accordance with the general recommendations, concluding observations, views, and other statements published by the Committee.

Moreover, judicial practice frequently interprets that such domesticated international human rights conventions possess an effect superior to ordinary laws and inferior to the Constitution. It is considered that the Enforcement Acts of the two Covenants possess the nature of a "Basic Law on Human Rights," and the hierarchy of a basic law is higher than ordinary laws and lower than the Constitution. The concrete operation is as follows: (1) Only when other laws have more favorable protection provisions than international human rights conventions may the application of international human rights conventions be excluded; (2) Whether provisions concerning human rights in other laws are stricter than the human rights protections of international human rights conventions should be determined strictly and individually; (3) International human rights conventions additionally possess a supplementary nature—that is, the basic provisions of international human rights conventions concerning "due process of law" shall have supplementary effect for government agencies at all levels (including courts), which is consistent with the nature and effect of a "Basic Law." If a judge discovers in an individual case that an individual law or order conflicts with a law of basic law nature, it should not be applied. When a judge discovers that the concrete norms of an individual law are insufficiently covered, the abstract principles of the basic law possess the function of supplementary application. This "supplementarity principle" of the basic law is also the legal source for judicial officers to exercise the function of judicial law-making. Courts further reference the principle of "interpretation in conformity with the intent of the Constitution"—that is, when interpreting laws, if there are multiple results, one must choose the interpretive result that does not violate the Constitution. When facing how to interpret and apply the Enforcement Act of International Human Rights Conventions and other laws, it is considered that the principle of "interpretation in conformity with the intent of international human rights conventions" should also be adopted⁴.

2. Sexual harassment is discrimination against women

According to Article 1 of CEDAW: "For the purposes of the present Convention, the term 'discrimination against women' shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field." Paragraph 6 of CEDAW General Recommendation No. 19 further details the definition of discrimination: "It includes gender-based violence, that is, violence that is directed against a woman because she is a woman or that affects women disproportionately. It includes acts that inflict physical, mental or sexual harm or suffering, threat of such acts, coercion and other deprivations of liberty." If hostile environment sexual harassment as prescribed in Article 2, Paragraph 2 of the Sexual Harassment Prevention Act has inflicted mental harm or suffering on women, according to paragraph 6 of General Recommendation No. 19, it constitutes gender-based violence and falls under "discrimination against women" as defined by CEDAW. This is evident from paragraph 18 of General Recommendation No. 19, which states: "Sexual harassment includes such unwelcome sexually determined behavior as physical contact and advances, sexually colored remarks, showing pornography and sexual demands, whether by words or action. Such conduct can be humiliating and may constitute a health and safety problem; it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment, including recruitment or promotion, or when it creates a hostile working environment," and paragraph 17, which identifies sexual harassment of women in the workplace as gender-based violence, both of which show that hostile environment sexual harassment against women constitutes discrimination against women.

3. Obligations of CEDAW States parties

Article 2(c) and (e) of CEDAW explicitly stipulates that States parties undertake: "To establish legal protection of the rights of women on an equal footing with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination," and "To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise." Paragraph 9 of General Recommendation No. 19 more clearly points out: "However, it should be emphasized that discrimination under the Convention is not restricted to action by or on behalf of governments (see art. 2(e), art. 2(f) and art. 5). For example, under article 2(e) the Convention calls on States parties to take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise. Under general international law and specific human rights covenants, States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence and for providing compensation." General Recommendation No. 28, regarding the core obligations borne by States parties under Article 2 of CEDAW, points out in paragraph 13 that Article 2 is not limited to prohibiting discrimination against women directly or indirectly caused by States parties, but also imposes a due diligence obligation on States parties to prevent private discrimination against women. Paragraph 36 of the same recommendation, regarding Article 2(e) of CEDAW, further explains that States parties undertake to ensure through courts and other public institutions the effective protection of women against any discrimination, and to take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise. Under paragraph 37(b) of the same recommendation, "appropriate means" and "appropriate measures" referred to in Article 2 and other articles of CEDAW ensure that States parties take steps to prevent, prohibit, and punish third-party violations of CEDAW. Thus, synthesizing the aforementioned CEDAW articles and general recommendations, it is evident that CEDAW not only aims to eliminate government acts of discrimination against women, but also encompasses private acts of discrimination against women, and States parties may bear responsibility if they fail to punish private acts of discrimination against women.

(4) When Male A, the Director of the Information Bureau of a special municipality, commenced a relationship with his journalist girlfriend, Female B, and Female B subsequently wanted to break up with Male A, Male A, in an attempt to win her back, intentionally uploaded photographs of the two of them taken during their relationship onto Facebook, thereby causing trouble for Female B at work, does this constitute "hostile environment sexual harassment"? If Male A continued to pursue Female B through methods other than uploading the aforementioned photographs, or even continued to express his pursuit of Female B after marriage, would this also constitute sexual harassment?

1. Regarding whether Male A, the Director of the Information Bureau of a special municipality, commenced a relationship with his journalist girlfriend, Female B, and Female B subsequently wanted to break up with Male A, and Male A, in an attempt to win her back, intentionally uploaded photographs of the two of them taken during their relationship onto Facebook, thereby causing trouble for Female B at work, constitutes "hostile environment sexual harassment." The original first-instance judgment of this case (namely Judgment 110-Cheng-Zhi-1 of the Disciplinary Court) pointed out regarding this: "Sexual harassment as referred to in the Sexual Harassment Prevention Act means, other than sexual assault crimes, basic constitutive elements featuring 'conducting behavior related to sex or gender against the will of another person.' The so-called 'behavior related to sex or gender,' viewed from the legislative intent and legislative history of this Act, Article 2, Paragraph 4 of the Gender Equity Education Act, and Article 12, Paragraph 1 of the Employment Gender Equality Act, should mean that the perpetrator's speech or conduct, or texts, drawings, sounds, images, or other articles displayed and broadcasted, contain sexual implications or implications of gender discrimination, prejudice, or insult, to be deemed as such. The sexual implication is roughly the same as the sexual implication referred to in relevant crimes in the Chapter of Offenses Against Sexual Autonomy of the Criminal Code. As for determining whether the speech or conduct of the perpetrator constitutes sexual harassment under Article 2, Paragraph 2 of the Sexual Harassment Prevention Act, one should stand from the perspective of a reasonable third person, first use an objective standard to judge whether it contains sexual demands, sexual meaning, or implications of gender discrimination, prejudice, or insult. If in the affirmative, one then proceeds to examine specific facts such as the background, environment, relationship of the parties, speech and conduct of the perpetrator, and the cognition of the counterparty, to comprehensively judge whether the speech or conduct damages another person's personal dignity, creates a situation that makes one feel terrified, hostile, or offended, or improperly affects their work... or the conduct of normal life, and make a determination. The photograph posted by the respondent (namely Male A) on 'Facebook' shows that both the respondent and Female Y (namely Female B) are properly dressed, facing the camera, with Female Y's head resting on the respondent's shoulder, and another unidentified male sitting nearby with his back to the camera. Observed reasonably according to modern people's ordinary life experience and social consensus, this photograph is only sufficient to deem that the two of them had an intimate romantic relationship, and it is difficult to consider it as containing sexual meanings or gender discrimination implications. The respondent rashly posting this photograph, even if Female Y consequently worried about the exposure of other private photos she had taken, demanding deletion or producing subsequent work troubles, can only be deemed to have violated the provision of Article 5 of the Civil Service Employment Act that civil servants shall be prudent, as stated above, and it is hardly deemed to be sexual harassment." However, considering specific facts such as the background of the incident, the environment, the relationship of the parties, the speech and conduct of the perpetrator, and the cognition of the counterparty, is it difficult to consider Male A's conduct as not containing sexual meanings or gender discrimination implications, and thus difficult to recognize as sexual harassment? The expert appraiser considers that there are the following considerations:

(1) Male A intentionally uploading photographs of the two of them taken during their relationship onto Facebook should be conduct related to "sex or gender":

Although Judgment 110-Cheng-Zhi-1 of the Disciplinary Court stated that in the photograph posted by Male A on "Facebook" with Female B, both were properly dressed, facing the camera, with Female B's head resting on Male A's shoulder, observed reasonably according to modern people's ordinary life experience and social consensus, this photograph was only sufficient to deem that the two of them had an intimate romantic relationship, and it was difficult to consider it as containing sexual meanings or gender discrimination implications. Male A also stated in his defense brief: