Gender Equality Incidents on Campus and Remedy

# Everyone Should Know | Gender Equality Incidents on Campus and Remedy This document will tell you what a gender equality incident is and what avenues of remedy are available. It is not only applicable to students at NTHU, but also to students from other universities. We hope that the information we compiled will be helpful when you need it. Author:間諜狐獴(前學生會法務長) Editor:沐編(沐報編輯團隊的成員) Translator：Andrea（學生會社群小組翻譯） :dart: What are the gender equality incidents? --- According to the [Gender Equity Education Act](https://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?pcode=H0080067) in Taiwan, gender equality incidents has been devided into 3 types, which are sexual assault, sexual harassment and sexual bullying. 1. **Sexual Assault** Includes Article 332, Section 2, Paragraph 2; Article 334, Section 2, Paragraph 2; Article 348, Section 2, Paragraph 1 in [Criminal Code of the Republic of China's Part 2 and Chapter 16, Sexual Offenses](https://law.moj.gov.tw/ENG/LawClass/LawParaDeatil.aspx?pcode=C0000001&bp=32) and its special legislation. 2. **Sexual Harassment** The following circumstances are met, and the degree of sexual assault is not reached : - Engaging in unwelcome, sexually explicit or sexually discriminatory words or behavior, either explicitly or implicitly, that affects another person's dignity, learning, or work opportunities or performance. - Anyone who uses sex- or gender-related conduct as a condition for obtaining, losing, or diminishing his or her own or another person's rights related to study or work. 3. **Sexual bullying** A person who, through verbal, physical, or other violence, engages in conduct that is demeaning, offensive, or threatening to another person's gender characteristics, gender temperaments, sexual orientation, or gender identity and the degree of sexual harassment is not reached. :::info **► Supplement 1** Regarding the gender characteristics, gender temperaments, sexual orientation, and gender identity mentioned in "*sexual bullying*", we attach here an [explanation from the Ministry of Education](https://www.gender.edu.tw/web/upload/m7/%E6%80%A7%E5%88%A5%E9%9B%B6%E9%9C%B8%E5%87%8C-%E6%A0%A1%E5%9C%92%E6%80%A7%E9%9C%B8%E5%87%8C%E9%98%B2%E6%B2%BB%E6%89%8B%E5%86%8A.pdf). **► Supplement 2** Sexual bullying may also constitute a crime of defamation if it involves the degradation of a person's reputation, character, or dignity. Conduct that is demeaning, offensive, or threatening to a person's gender characteristics, gender temperament, sexual orientation, or gender identity, and not to the extent of sexual harassment, if it's conducted in public or in a circumstance where a majority amount of people can witness. Then it may constitute a crime of offenses against reputation under the [Criminal Code of the Republic of China's Offenses Against Reputation and Credit Chapter](https://law.moj.gov.tw/ENG/LawClass/LawParaDeatil.aspx?pcode=C0000001&bp=44). ::: :dart: Laws Related to Sexual Equality Incidents --- In addition to Civil Code and Criminal Code of the Republic of China, there are punitive clauses of sexual assault and sexual harassment in the Sexual Assault Crime Prevention Act, the Stalking and Harassment Prevention Act, and the Sexual Harassment Prevention Act. ||Sexual Assault|Sexual Harassment|Sexual Bullying| |:----:|:----:|:----:|:----:| |Sexual Assault Crime Prevention Act|V|V|| |Crime Victim Rights Protection Act|V||| |Witness Protection Act|§4(1), 12(1), 15||| |Stalking and Harassment Prevention Act||Definition§3, Protection§5, Punishment§18|| |Sexual Harassment Prevention Act||Forcible Touching§25, Sexual Harassment§20|§309-314| |Criminal Code of the Republic of China|§221-227, 228, 229, 332(2)(ii), 334(2)(ii), 348(2)(i)|§315-1|| |Civil Code|Compensation for Damages|Compensation for Damages|Compensation for Damages| |Gender Equity Education Act|1. requesting an apology 2. conducting a sex education program 3. taking other measures consistent with the purpose of education (usually a demerit)|the same|the same| :closed_book: What constitutes sexual assault? --- In Criminal Code of the Republic of China, sexual crimes actually include many crimes, mainly the crime of forced sexual intercourse, indecent assault, and indecent fondling. The mutual core of sexual-related crimes is the so-called "non-consent issue", that is, to prove the non-consent of the sexual recipient. As for how to prove, in practice, there are three types of criteria, the mainstream verdict is to adopt the "Passive Consent Principle". 1. **Significant Resistance Principle** Prior to 1999, the Criminal Code of the Republic of China defined the crime of raping women as "rape a woman by force, coercion, medicine, hypnotism, or other means to the extent that she is unable to resist, is a crime of rape and is punishable by a term of imprisonment of not less than five years." In addition to limiting the victim to women without regard to other genders, the legislative language also requires the use of coercive means that render the woman unable to resist in order to constitute the crime of rape of women. This means that the prosecution must prove that the victim was unable to resist the coercive means to the significant extent that she was physically and objectively able to do so, which ultimately resulted in the rape of the woman. Because of the overly strict actus reus of the crime of raping a woman, the severity of the crime may pose a serious risk to the woman's safety of life or body. The Supreme Court has made a relatively balanced decision, holding that coercion does not require actual suppression of the victim, but only proof that the coercive means can suppress the victim's resistance and deprive the freedom of her will. However, even if the Supreme Court has reached a relatively balanced precedent, in practice, during the trial, the prosecution must still prove that the perpetrator's coercive behavior has reached a point where the woman objectively did not know how to resist, could not resist, or did not dare to resist. Neglecting the victim's attempt to resist may have put her body and life at greater risk. 2. **Passive Consent Principle (NO MEANS NO)** After the 1999 amendment to the Criminal Code of the Republic of China, the crime of forcible sexual assault was defined as: "A person who by threats, violence, intimidation, inducing hypnosis, or other means against the will of a male or female and who has sexual intercourse with such person shall be sentenced to imprisonment for not less than three years but not more than ten years." The sentence was changed from "unable to resist" to "against one's will", which is more protective of the individual's sexual autonomy. In addition, the Supreme Court decided at the 5th Criminal Court Meeting in 1997 that the court's verdict on actus reus is not limted to the listed methods(threats, violence, intimidation, inducing hypnosis, or other means). In other words, even if there are other methods that are not legally evaluated as equivalent as threats, violence, intimidation, inducing hypnosis or other means, the actus reus shall still deem held if the method is against one's will. 3. **Active Consent Principle (ONLY YES MEANS YES)** On January 27, 2011, the Supreme Court issued a landmark decision addressing the right to sexual consent. The ruling clearly articulated the meaning of sexual autonomy, which is the fundamental right of an individual to be free from sexual objectification and to decide whether, when, how, and with whom to have sex of his or her own free will. Any sexual activity should be based on mutual respect and consent. In the actual case, the court held that the sexually active party has the obligation to confirm that his or her counterpart is fully sober and consenting. However, this excludes those who are under the age of 16, mentally disabled, unconscious, have unequal power, or who are using religion as a pretext for seduction. In Chapter 16 of the Criminal Code of the Republic of China, the crime of Sexual Offenses protects the right to sexual autonomy, which is based on the preservation of human dignity, the integrity of the individual's subjectivity and personality development, and a fundamental right that is indispensable to ensure the satisfaction of the individual's needs. The right to sexual autonomy means the right to sexual consent, which means that any sexual act should be based on mutual respect and consent, and that "No means No" and "only Yes means Yes" are absolute. It is the responsibility of the sexually active party to confirm that his or her counterpart is "consenting" at a "fully conscious" state, to encourage "transparency in communication" and to "respect the counterpart". Therefore, if the counterpart is silent, it is not consent; if the counterpart is uncertain or hesitant, it is not consent; if the counterpart walks home or rests alone with you before consenting, it can only be regarded as a general interpersonal interaction, not a sexual suggestion; if you agree to hug or kiss, it does not mean that you want to have sex, i.e., the counterpart can refuse even after consenting, and there is no such thing as "if you don't say no, it means yes" or there is ambiguity of " half-hearted" , not to mention using "sexual consent" as an issue of actus reus of sexaul assault in court. It is not appropriate to immediately attribute the occurrence of sexual assault to the victim's personal factors or reactions and deem the victim has agreed, and therefore justify the perpetrator's unconfirmed sexual attachement, ignoring the responsibility of sexual engaging party to ensure the consent of the counterpart at the time of the act. (e.g., not to use the victim's exposed wear or job in sex-related industry as an excuse for the occurrence of sexual acts, or to blame the victim for not seeking help at the scene, immediately reporting to the police, preserving evidence, or to rationalize the victim's prior consent on the basis of the victim's post-event attitude and continued affectionate relationship with the perpetrator, etc.). Although the Supreme Court has provided an indicative decision on active consent, this decision has not been uniformly interpreted through the en banc process! That is, the opinion is not binding on the lower courts, and in practice, more judges continue to apply the passive consent principle. :::info **► Situation in Practice** In practice, if a victim does not fit the profile of a "typical victim", he or she may receive an unfavorable judgment. The characteristics of a typical victim include: seeking medical attention at the first opportunity, seeking help from family and friends in a timely manner, making strong accusations against the perpetrator, and reporting post-traumatic syndrome after a forensic examination. However, the typical victim situation is often difficult to exist in! First of all, the victim must have the courage and the ability to seek help immediately, but also have good helpers and good preservation of physical evidence. In addition, even if the victim seeks medical attention first and has the relevant medical examinations, it is only possible to prove the fact that a sexual relationship took place and not directly prove a violation of intent. Furthermore, if the victim's trauma leaves inconsistent statements about what happened, he or she may receive an unfavorable verdict. In addition to the risk of litigation, the victim's act of seeking help may expose his or her to social stigma and the stigma of being a victim of sexual assault, such as "Did you seduce someone?", "Why didn't you protect yourself?", "Why did you stay out so late?", "Did you fail to negotiate the price?". If the lawsuit doesn't end in a guilty verdict, it may be called "court-verified XX" by the public. From the defendant's defense strategy, unless the defendant has favorable physical evidence such as "sexual transaction price", "positive conversation record afterwards", "video of the process", the defendant will be unable to defend himself in the lawsuit. In trial practice, "confession" and "reconciliation with the victim" are often considered as mitigating factors in sentencing. In order to reduce the length of sentence, defendants often settle with the victim to obtain forgiveness. Under such trial practice, it is impossible to tell whether a defendant's confession of guilt is voluntary or it is a desperate litigation strategy. ::: :mag: What evidence can I collect? --- In the case of sexual assault, gather as much evidence as you can! For situations other than sexual assault, we are sorry that this article doesn't provide general guidelines for evidence collection. The reason is that taped sounds and camera images are lawfully allowed to collect only if in due course, which includes "legally allowed" or "acknowledgemnt of the counterpart". In cases where the evidence may not have been lawfully obtained, evidence may deem nullified or still qualified to use in court at judge's discretion of the specific case. ► **For example: New Taipei District Court, Civil Judgment No. 1499, Year 105** The court held that the criminal photo was taken from the school entrance monitor, and the plaintiff's behavior at the school entrance was known to an unspecified number of people, so the plaintiff's private activities at that time lacked a reasonable expectation of privacy because they were not private, and there was no infringement of privacy. Moreover, the source of the picture used by the defendant was not a clandestine photograph, and the purpose of using the picture was to provide a security comparison to maintain campus safety, without the intention of disseminating it to an unspecified majority of people, and neither the picture nor the content of the statement had been scandalized or altered.Therefore, the photo is deemed no damage to the plantiff's privacy right by the verdict. **The conditions listed in the paragraph above include:** 1. Lack of privacy expectations → No consideration of privacy 2. The source is not clandestine → No illegal collection of personal information 3. Dissemination is to maintain campus safety → Due course for use → No consideration of portrait right infringement 4. No scandal, falsification → No consideration of improper infringement of reputation rights :books: Remedies after the Gender Equality Incidents --- There are many avenues of remedy available after an incident of gender equality, each of which can achieve different results. Clarify your purpose and seek remedy accordingly. In particular, it is important to note that the only few things a school gender equity education committee can do are to request an apology, provide gender equity education classes, and other measures consistent with the purpose of education (usually a demerit).Therefore, in the case of clandestine photo-taking, the school is not lawfully eligible to ask the perpetrator to delete the photo. Teachers, instructors, the police force and the gender equity education committee are not lawfully eligble to ask the perpetrator to delete the photo. | Hoping Treatment for Defendant | Sexual Assault | Sexual Harassment | Sexual bullying | |:-----:|:-----: | :-----: | :-----: | | given criminal law sanction (and asked to remove photos) | File a complaint with the police or the district attorney's office in accordance with the Criminal Code of Republic of China. | The police or the District Attorney's Office will be notified of the crime of sexual touching under Article 25 of the Sexual Harassment Prevention Act. | The police or the district attorney's office will be notified of the crime of offenses against reputation under the Criminal Code of Republic of China. | | Received school discipline | Submit a [request for investigation](https://gencom.site.nthu.edu.tw/p/412-1344-1189.php?Lang=zh-tw) to the Gender Equity Education Committee in accordance with Article 8 of the Regulations for the Implementation of Gender Equality Education at NTHU | same as left | same as left | | Compensation | If a criminal lawsuit has been filed: To obtain compensation in accordance with the Crime Victim Rights Protection Act and to file a civil lawsuit in the district court (free of court fees); If no criminal action is filed: civil action is filed in the Civil Division of the District Court under Civil Code §184 for damages for infringement of rights. | Same as left | Same as left | | Protection Order | In accordance with the Witness Protection Act §4, a witness protection order may be filed with the court. | the police agency investigates the suspected criminal act of stalking and issues a written warning to the perpetrator within two years, the perpetrator may apply to the court for a protection order if he/she commits another act of stalking and harassment. | No | :::info ► **What is stalking and harassment?** According to the definition in Article 3 of [Stalking and Harassment Prevention Act](https://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?pcode=D0080211), the stalking and harassing behaviors specified in this Act refer to *any of the following behaviors* through the use of persons, vehicles, tools, equipment, electronic communications measures, the Internet, or any other methods to repeatedly or continue to exert anything sexual or gender-related towards a specific person against his/her will, which intimidates such specific person and sufficiently affects his/her daily life or social activities: 1. Monitoring, observing, tracking or learning the whereabouts of the specific person. 2. Approaching the specific person’s residence, place of residence, school, workplace, frequently-visited places by stalking, keeping watch, tailing or any other similar methods. 3. Warning, threatening, mocking, insulting, discriminating, hateful, disparaging or using other similar words or actions against the specific person. 4. Interfering with the specific person by telephone, fax, electronic communication measures, the Internet, or other equipment. 5. Asking for date, to maintain contact, or to pursue the specific person. 6. Sending, retaining, displaying, or broadcasting texts, pictures, audios, images, or any other items of the specific person. 7. Notifying or presenting information to the specific person or items that may be harmful to the specific person’s reputation. 8. Misuse of the specific personal data or ordering goods or services for the specific person without his/her consent. ► **Investigation Report of the School Equity Education Committee vs. the Court** According to Article 35, Paragraph 2 of the Gender Equity Education Act, the court is obligated to review the investigation reports of the gender equality education committee at all levels. However, in accordance with the Supreme Administrative Court's Judgment No. 615 of 2007, the investigation reports of the gender equity boards are at the level of the school and the competent authority, and may govern the factual determinations of the school and the competent authority. However, when a case comes before the administrative court, the court should consider the investigation reports of the various levels of the SEEC, but the court is not binding to the SEEC's investigation report as the basis for its factual judgement. So the judgement of the relevant facts should still be subject to a due process of evidence investigation and verbal debate. :::

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