Statement | Minor Victims of Crime Should Not Be Deprived of the Opportunity to Seek Justice—Statement Regarding the Constitutional Court's Review of the "Case Concerning Insufficient Protection of the Right to Litigation for Minor Victims of Sexual Crimes"

On March 20, 2024, the Constitutional Court officially accepted a case addressing the issue of "excessively short prescription periods for the right of prosecution in sexual autonomy offenses involving minors," designating Article 80 of the Criminal Code and Article 8-1 of the Enforcement Act of the Criminal Code as the targets of constitutional review (112-An-Min-Tzu No. 384). In response, the JRF also submitted an amicus curiae brief on May 27 of the same year.

The system of prescription for the right of prosecution dictates that once the prescription period for the right of prosecution has expired, the state will no longer prosecute the perpetrator of a crime, and the crime victim can no longer hold the perpetrator criminally liable. The legal effect of this system is twofold: on the one hand, it limits the exercise of the state's penal power, ensuring that defendants are not subjected to endless prosecution by state public authority; on the other hand, it simultaneously limits the victim's right to file a complaint guaranteed by Article 16 of the Constitution. Therefore, the careful design and balancing of the prescription period for the right of prosecution is of utmost importance.

Our country's current regulations on the prescription period for the right of prosecution regarding "sexual crime cases involving minors as victims" are identical in their legal application to ordinary crime victim cases, ignoring the differences in the nature of the victimized cases. They fail to fully consider the special situations that victims might face at the moment of victimization, such as objective limitations like age, mental state, and surrounding environment, and fail to provide differing regulatory designs. This arguably violates the right to litigation guaranteed to the people by Article 16 of the Constitution and does nothing to help fulfill the state's protection of the physical and mental health and sound personality development of children and adolescents.

In this regard, the JRF puts forth the following two statements, hoping that the unique nature of "sexual crime cases involving minors as victims" will be recognized, so that victims will no longer lose the opportunity to seek justice for themselves and the right to prosecute merely because of their young age at the time of the incident:

1. The prescription period provisions in Article 80 of the Criminal Code fail to consider the particularly vulnerable situations faced by "minor victims of sexual crimes," and have already conflicted with the right to litigation guaranteed by Article 16 of the Constitution.
2. The Legislative Yuan and the competent authorities responsible for amending laws should promptly revise our country's criminal prosecution prescription system to implement the protection of the physical and mental health and sound personality development of children and adolescents. At the same time, consideration should be given to similar dilemmas faced by victims when seeking civil compensation.

1. The prescription period provisions of Article 80 of the Criminal Code fail to consider the particularly vulnerable situations faced by "minor victims of sexual crimes," and should be deemed in conflict with the right to litigation guaranteed by Article 16 of the Constitution:

(1) The right of minor victims to file criminal complaints should be protected by Article 16 of the Constitution

Article 16 of the Constitution guarantees the people's right to litigation, and the core of this protection lies in ensuring that victims can seek judicial remedies and receive a fair trial when their rights are infringed upon. Therefore, the victim's right to file a criminal complaint and hold the perpetrator criminally liable should be protected by the right to litigation under Article 16 of the Constitution.

However, current regulations on the prescription period for the right of prosecution under Article 80 of the Criminal Code fail to fully consider circumstances where minor victims of sexual crimes might find it difficult to exercise their right to file complaints due to their age, psychological state, supervisory and controlling relationships with the perpetrator, or other environmental factors. It ignores the special situations minor victims of sexual crimes may face, and uniformly calculates the prosecution prescription period starting from the "time of the completion of the offense" by the "actor." This clearly results in inadequate protection and obvious unfairness to young minor victims, infringing upon their right to file complaints.

(2) Sexual crimes that exploit the multiple vulnerabilities of minors possess a particularly grave level of culpability

Referring to the "Cross-Statistics on the Age of Victims of Sexual Assault and the Relationship between the Parties" published by the Ministry of Health and Welfare in 2022, among the 8,401 victims that year, 4,809 (57.24%) were minors under the age of 18. Among the minor victims, out of every 100 victims, 16 were children under the age of 12.

The statistics further show that among these child and adolescent victims, those whose relationship with the perpetrator was "family members" accounted for a significant portion, with "direct blood relatives" holding the largest share. This demonstrates that these victims of domestic sexual assault are not few in number, and they experience overlapping vulnerabilities.

The Modern Women's Foundation also published an "Internet Survey on Attitudes toward Seeking Help for Sexual Violence Incidents" on April 17, 2023, pointing out that as many as 90% of sexual violence victims dared not call the police, and 40% never sought help externally. More importantly, we should understand that beyond the reported cases mentioned above, the dark figure of unreported crimes may even far exceed the aforementioned statistics.

Unlike ordinary crime victim cases, the special nature of sexual crime cases involving minors lies in the fact that perpetrators of sexual crimes against minors often maliciously target the characteristic of minors whose physical and mental development is not yet mature, exploiting their lack of self-protection awareness and lack of cognitive understanding regarding sexual behavior and the fact of sexual assault. Such acts possess a particularly grave level of culpability.

Furthermore, even if the victim did possess the aforementioned cognitive awareness at the time the act occurred, they often suffer severe physical and psychological trauma and negative impacts resulting from the sexual crime. How can we expect young, naive victims to quickly walk out of their pain and immediately defend their own rights? Moreover, if the perpetrator holds a "familial status," it will make it extremely easy for the victim to be constrained by family reputation or the feelings of other family members; or out of economic or caregiving dependency on the perpetrator; or compelled by considerations of the perpetrator's power and unequal power dynamics, leading them to give up opportunities to seek external help or prosecute, making it fundamentally impossible to expect them to seek help in a timely manner or initiate litigation to prosecute the crime.

(3) The current "prescription for the right of prosecution" system leaves minor victims of sexual crimes unable to vindicate justice

In 2018, in a case where Liang Mei-tsung, a gymnastics coach at Kaohsiung Kuang-Hua Elementary School, chronically sexually assaulted female students over a decade ago, after receiving reports and investigating, police and prosecutors found at least seven female students were victimized, among whom four filed complaints; however, only two had not yet seen their prescription periods expire. In 2023, a well-known artist surnamed Hsieh was accused of multiple sexual assaults against underage girls, but because the prescription period for the case had already passed, accountability could not be pursued, resulting in a decision not to prosecute. The victims subsequently filed private prosecutions, which were still dismissed by the criminal division of the Taipei District Court on the grounds that the prescription period had expired. These cases represent only the tip of the iceberg.

The regulatory design of Article 80 of our current Criminal Code fails to consider that minor victims differ from adults who possess relatively complete self-protection awareness and sound cognitive understanding of the infringement upon their sexual autonomy. It fails to provide minor victims with a buffer prescription period, making their prescription provisions identical to those of adult crime victim cases. This is equivalent to demanding that young victims possess the same sound sexual autonomy cognition and rights-awareness as ordinary adult victims; and if the perpetrator is a relative of the victim, they must also brave psychological and interpersonal pressures, as well as economic isolation, to initiate prosecution against the perpetrator within the prescription period. Otherwise, once the prescription period expires, the perpetrator's past sexual crimes can no longer be punished.

Such regulations disguisedly devolve into a tool for criminals to evade the law, completely losing judicial justice, and running counter to the legislative intent revealed in Judicial Yuan Interpretations Nos. 664 and 805 that the state should protect the rights of children and adolescents to physical and mental health and sound personality development. Not only do they deprive minor victims of sexual crimes of the opportunity to seek justice, but such regulatory design of Article 80 of the Criminal Code also runs the risk of conflicting with the intent of Article 16 of the Constitution to protect the people's right to litigation.

2. Amend our country's criminal prosecution prescription system to implement the protection of the physical and mental health and sound personality development of children and adolescents:

In view of the vulnerable situations of minors such as age, mentality, and power dynamics in which they find themselves, criminal cases involving sexual crimes against them possess the justification and necessity for their criminal prosecution periods to be extended, and they ought to receive differing degrees of protection. However, our country's criminal litigation system has failed to make special designs in the prosecution prescription system for cases of sexual crimes against minors.

Nevertheless, based on the standpoint of protecting the physical and mental health and sound personality development of children and adolescents, separate designs exist under the Sexual Harassment Prevention Act and the Gender Equity Education Act. Even though the nature of these two laws belongs to administrative regulations rather than the criminal legal provisions of Article 80 of the Criminal Code discussed previously, they share the core intent of making victim protection more comprehensive in the application of prescription period regulations, and they remain useful references for regulatory design.

Specifically, Article 14, Paragraph 2 of our country's Sexual Harassment Prevention Act takes into consideration that minor victims encountering sexual harassment incidents may fail to file grievances due to immature intelligence and discretion or due to being supervised and cared for under power dynamics. To comprehensively protect minor victims of sexual harassment, an exception provision that "prescription begins to calculate after reaching adulthood" was designed. Article 31, Paragraph 1 of the Gender Equity Education Act further establishes an exception provision of "no prescription period" for applications for investigation and reporting of campus gender incidents (such as sexual assault, sexual harassment, and sexual bullying) involving minor victims.

In addition, in foreign legislative precedents, it is not uncommon to have circumstances where prosecution prescription periods are specially extended for types of crimes against minors.

From this, it can be seen that regarding sexual crime incidents involving minors, both foreign laws and our own domestic laws have long reflected upon the matter, yet have simply failed to review the prosecution prescription system of Article 80 of the Criminal Code up to this day. Based on the same reasons, rights such as claims for compensation by minor victims of sexual crimes under the Civil Code also necessitate a comprehensive review.

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Press Contact

Lü Cheng-yen, Attorney-at-Law, Director of the Legal Policy Department, Judicial Reform Foundation
Phone: 02-2523-1178#37
Email: elvin@jrf.org.tw