99 Taishang No. 5939 (2010)

TAIWAN

Title:
99 Taishang No. 5939 (2010)

Court:
Supreme Court of Taiwan

Date:
30 September 2010

CRC Provisions: 
Article 19: Protection from abuse and neglect

Other International Provisions:
International Covenant on Civil and Political Rights (“ICCPR”), Article 24: Protective measures
International Covenant on Economic, Social and Cultural Rights (“ICESCR”), Article 10: Protective measures

Domestic Provisions:
Criminal Code of Taiwan, Article 221: the offence of forcible intercourse (“the application of force, threat of force, hypnotism, or any other means against another person’s will to engage in sexual intercourse”)

Case Summary:
Background:
The defendant had sexual intercourse with an intellectually disabled girl under the age of 12. The appellate court found that the defendant had committed a crime under Article 225 of the Criminal Code of Taiwan (having sexual intercourse with a person who is unable to resist due to mental or physical disability, mental retardation, or other similar conditions), but failed to consider whether the defendant had also committed the crime of forcible intercourse under Article 221 of the Criminal Code.

Issue and resolution:
Sexual abuse; whether the use of non-violent means against another person’s will to engage in sexual intercourse can constitute the crime of forcible intercourse under Article 221 of the Criminal Code. The Supreme Court found that, in light of Taiwan’s duties under various international human rights conventions to afford protective measures to children, courts should adopt a broad interpretation of the “forcible” element in the definition of “forcible intercourse”. The Court remanded the case back to the Taiwan High Court.

Court reasoning:
Article 19(1) of the CRC provides that “States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse”. Article 24(1) of the ICCPR provides that “every child shall have…the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State”. Article 10(3) of ICESCR provides that “special measures of protection and assistance should be taken on behalf of all children and young persons”.

In light of the foregoing international human rights conventions, when interpreting “any other means against another person’s will” under Article 221 of the Criminal Code, the court should be mindful of protecting the rights of victims under the age of 14. “Means against another person’s will”, as applied to child victims, are not limited to violent measures; any other measures that effectively suppress or distort the exercise of the child’s free will all constitute “means against another person’s will” under the definition of “forcible intercourse”.

Excerpts citing CRC and other relevant human rights instruments:
as in full-text Taiwanese decision:

(二)、刑法第二百二十一條所稱之「其他違反其（被害人）意願之方法」，參諸本院九十七年度第五次刑事庭會議決議一之意旨，應係指該條所列舉之強暴、脅迫、恐嚇、催眠術以外，其他違反被害人意願之方法，妨害被害人之意思自由者而言。

於被害人係未滿十四歲之情形，參照聯合國「兒童權利公約」（西元一九九○年九月二日生效）第十九條第一項所定：「簽約國應採取一切立法、行政、社會與教育措施，防止兒童（該公約所

稱『兒童』係指未滿十八歲之人）…遭受身心脅迫、傷害或虐待、遺棄或疏忽之對待以及包括性強暴之不當待遇或剝削」之意旨，以及「公民與政治權利國際公約」第二十四條第一項：「每一

兒童應有權享受家庭、社會和國家為其未成年地位給予的必要保護措施…」、「經濟社會文化權利國際公約」第十條第三項：「應為一切兒童和少年採取特殊的保護和協助措施…」等規定（按

：公民與政治權利國際公約及經濟社會文化權利國際公約施行法第二條明定：「兩公約所揭示保障人權之規定，具有國內法律效力」），自應由保護該未滿十四歲之被害人角度解釋「違反被害

人意願之方法」之意涵。本案Ｂ童於偵查中即指稱：當時大阿伯（即甲○○）對伊做那些事時，伊有說不可以，而且伊當時有流血，伊覺得很痛，還有哭等語（見偵字第一五九七七號卷第八十八頁），倘若非虛，甲○○對Ｂ童為性交行為時，Ｂ童於事前似已表達拒絕之意，事中亦顯示出不悅、痛苦之神情，甲○○上開所為，似已違反Ｂ童之意願。原判決就此部分未予調查、釐清，遽認甲○○上開所為，係犯刑法第二百二十五條之乘機性交罪，亦有調查未盡之違背法令。上訴意旨指摘原判決此部分違法，尚非全無理由，應認此部分有發回更審之原因。

CRIN English translation:

(II) Article 221 of the Criminal Code provides that it is a crime to engage in sexual intercourse by using “any other means against the will of the victim.” Under Resolution I of the Fifth Conference of the Criminal Division of this Court in 2008, the phrase “other means against the will of the victim” refers to those means, other than the application of force, threat of force, or hypnotism as expressly listed therein, that interfere with the exercise of the free will of the victim.

As to the situation where the victim is under the age of 14, the court should interpret the phrase “other means against the will of the victim” in favour of the child victim, in light of Article 19, Clause 1 of the Convention of the Rights of the Child (“states parties shall take all legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation…”), Article 24, Clause 1 of ICCPR (“Every child shall have … the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the state”), and Article 10, Clause 3 of ICESCR (“Special measures of protection and assistance should be taken on behalf of all children and young persons…”) (Note: Article 2 of The Adoptive Measures of ICCPR and ICESCR expressly provide that “the human rights provisions in the two Covenants shall have domestic law effects.”) In this case, the child victim mentioned during the investigation process that she said no, she was bleeding and crying and felt hurt when the defendant was engaging in sexual intercourse with her (see page 88 of the investigation report no. 15977), which, if true, suggests that the defendant’s conduct was likely to be against the will of the child victim. The appellate court, without further investigating this possible Article 221 offence, jumped to the conclusion that the defendant had committed the Article 225 offence. Thus, the appellate brief’s argument on this point is not without merit, and this part of the judgment should be remanded.

Follow Up: 
After this decision, multiple cases involving the Article 221 offence decided by lower courts cited this decision and followed its interpretative guidance to allow for a wide interpretation of “forcible” as applied to victims under the age of 14 (see e.g., 101 Qinshangsu 186 (2012), 102 Qinshangsu 29 (2013), 102 Qinshangsu 41 (2013), 102 Qinshangsu 115 (2013)).

CRIN Comments: 
CRIN believes this decision is consistent with the CRC. Under Article 19, States must take all appropriate measures to protect children from abuse, including the strict application of criminal law procedures, and judicial involvement as appropriate to prosecute perpetrators of abuse. Article 34 requires States to protect children from all forms of sexual abuse, which the Committee on the Rights of the Child has defined as including the inducement or coercion of a child to engage in any unlawful or psychologically harmful sexual activity, as well as sexual victimisation which is not necessarily accompanied by physical force or restraint.

Case Citation:
99, Taishang, 5939 (2010)

Link to Full Judgment:
Available on request

This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.