萬國法律事務所

A series of lenient sentences favoring defendants in several recent sexual assault cases where the victims were children has captured the attention of the public in Taiwan. In one of these cases, three judges sentenced a defendant to three years and two months imprisonment for molesting a six-year-old girl. In another case, which was tried by the Supreme Court, the judge was unable to find a defendant guilty of raping a three-year-old girl because the prosecutor was not able to prove that the crime was committed against the girl's wishes. In what was perhaps the case that caused the public’s anger to boil over, a defendant who was alleged to have molested a two-year-old girl was found not guilty because the two-year-old child’s recollection of the exact time of the crime differed slightly from that determined by the examining doctor.

To address the public’s anger and concerns, the Taiwan Supreme Court convened all judges of the criminal courts and passed a resolution categorizing sexual assaults against children under the age of seven as aggravated rape, a crime that is punishable by a minimum imprisonment of seven years.

The seven-year minimum sentence will apply regardless of whether the assault is concluded to have been made against the children’s volition or not. The Supreme Court reasoned that children under the age of seven should be considered as lacking the ability to consent to sex.

The resolution takes into effect immediately upon promulgation and has quasi-precedential value, which binds not only the criminal judges of the Supreme Court but also those judges at the first and second instance courts.

In order to make the said resolution law, the Judicial Yuan has advised the Ministry of Justice to amend the Criminal Law. However, even if the Criminal Law is not amended, based on the resolution, where a victim of sexual assault is under the age of seven, criminal judges are required to sentence convicted defendant to at least seven years in prison.