Bio:
Law professor, Taiwan
Title of paper:
‘A Due Process Reform Causes an Undue Outcome: A Feminist Critique of Rape Trials and Injustice in Taiwan’
Abstract:
Taiwan reformed its rape statute in 1999 by focusing on the protection of sexual autonomy. However, many critics argue that changing substantive law cannot change rape myths in the courtroom. The worst problem is this: Taiwan reformed its criminal procedure rule in 2003 to adopt the ‘merits’ of the adversarial system – And such a new system has caused large disadvantages and discrimination to rape victims. The most critical change brought about by this procedural reform has been the introduction of a Taiwanese-style cross-examination at trial. However, such a new ‘refined trial system’ is more like an awful translation rather than a transplant: It ignores the social context of male dominance to such an extent that the power imbalance between the defendant and the victim needs to be readdressed to be equalized in the court. In the name of promoting defendant’s rights, the reform completely overlooks women’s experience in its gender-neutral regulations, and has thus led to the perpetuation of women’s subordination in Taiwan’s justice system. For example, rape victims are required to be confronted by the defendant’s counsel, but do not have the benefit of rape shield laws. Thus defence counsel can humiliate rape victims by asking questions about victims’ intimate relationships or sexual history directly. Such gender-biased interrogations and cross-examinations not only harass rape victims in the procedure, but also reinforce gender stereotypes in the courtroom. A rape law reform which only focuses on the substantive law is not enough. A new system of procedural and evidentiary provisions for use in rape trials is imperative to make the past incomplete reform more engendered and more complete.