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Theory and Practice of Constitutional Right to Sex Autonomy-An Analysis on Code Revision of Related Laws
Dr. Wen Cheng Chen
Yin Hua Chen
Principle of Neutrality
Abstract Athough Taiwan is a democratic society, sexual autonomy remains an issue. Even though the government has lifted the Martial Law by the end of 1980, sex culture remains in the state of isolation. For example, article 235 of the Criminal Law states that any form of public display, including distributing, broadcasting, or selling pornographic writing, picture, video, or any other materials, or allowing others to view or hear such materials in any way, will be sentenced up to two years of imprisonment and/or a fine of up to 30,000 dollars. However, the lack of definite guidelines to define "obscenity," the balance between public welfare and freedom of speech becomes an issue. Sales of pornographic publications, self-taken sexual photographs over the internet, and other pornographic or obscene materials in general are also related to freedom of speech, according to article 235 of the Criminal Law. The problem thus lies within choosing between the balance of public order and sexual autonomy, which should precede the other? Should killing be permitted in the name of morality? Such controversy is the focus of this research. In order to co-exist in our modern multicultural society where moral values clash with one another, we must learn to respect cultural diversity, where the choice of value is not absolute but with an equal respect to such cultural variety. We should examine and experience the phenomenon with a receptive approach, while holding a critical eye to any theory with only one value. We should assume a broadened thinking perspective and put individuals in perspective of the society. The accepted moral values change constantly in our modern society: what is considered to be acceptable may vary from one generation to another. There is an old saying, "the law itself will not govern the people." In the process of establishing a legal legislation, the public opinion will, and should, inevitably exert the revision or abolishment of legislations. This thesis paper is an attempt to examine the nation's old and new legislations relevant to "sex" and explore the implementation of sex autonomy protected by the Constitution. We may also catch a glimpse of the clashing and compromising processes between different moral values. This research is motivated by Article 235 of Criminal Code, article 29 of Prostitution Prevention Code for Minor and Teenager, and article 80 of Social Order Maintenance Code. There are four purposes of this research: First, the theoretical basics of sex autonomy protected by the constitution right will be discussed. It begins with the discussion of human dignity followed by two sub-issues of subjectivity and human free will. Cultural conservatism and civic liberalism will be discussed as support to the theory, in order to further illustrate the two main ideas as to why human free will needs to be protected and civic liberal rights must be implemented. Second, based on the decree of sex autonomy protected by the constitution and the implementation of such rights, the nation's legal norm will be discussed: Supreme Court Congress Interpretation, Criminal law, Prostitution Prevention Code for Minor and Teenager, Social Order Maintenance Code and their specific contents. Third, legal issues regarding sexual autonomy protection will be examined, as well as the influence of such legal issues have on the protection of sex autonomy. Finally, further discussions regarding how the above legal issues may beresolved through code revision, in order to implement sex autonomy protected by the constitution. This research concludes three suggestions to code revision: 1. Amendment of loophole in the Criminal Law: article 235 revision We suggest to revise article 235 of Criminal Law to establish offense only when suspects are targeting minors, meaning anyone under the age of 18 who are not willing to be exposed to any pornographic or obscene materials, speech or publications. It is simpler and also easier to be made into custom to narrow the conditions in which to file charges only when the suspect is distributing, broadcasting, selling, displaying or allowing others to view or hear obscene publication in any way to a person under 18. E.g. we can first revise article 235 of Criminal Law to "distributing, broadcasting, or selling obscene writing, picture, audio, video or, displaying or allowing others to view or hear obscene publication to anyone under 18, or to display in public, or in any way for a person under 18 to view or hear..." We can then make a second amendment: "Producing, possessing obscene writing, picture, video, and any other publication with intentions to distribute, broadcast, or sell to a person under 18 will also be charged with criminal offense." 2. Amendment of loophole in Prostitution Prevention Code for Minor and Teenager: article 29 revision Article 29 of Prostitution Prevention Code for Minor and Teenager states individuals who use enticing, mediating, suggesting or promoting prostitution in advertisement, publication, commercial, television, electronic publication, internet, or any other medium, will be sentenced up to five years of imprisonment with a fine up to one million dollars NTD. Amendment for article 29, "enticing, mediating, or promoting persons under 18 for prostitution with others in advertisement, publication, commercial, television, electronic publication, internet, or any other medium, will be sentence up to five years imprisonment and fine up to one million dollars NTD. Generally speaking, we omitted "suggesting" and added "promoting persons under 18 for prostitution with others." The word “suggesting” has been omitted for the reason that by definition, “suggesting” has no consistent standard, but a mere way of conveying a message content. Such a word should therefore be avoided in order to maintain clarity in defining the crime. In addition, the reward system and bonus reward by the National Police Agency for policemen who seize minors involved in sex crime or large scale sex crime should also be abolished. 3. Amendment of loophole for Social Order Maintenance Code: article 80 revision The Social Order Maintenance Code has a status higher than three other prostitution management codes, which results in a conflict between the administrative decree and the law. Therefore, "unapproved by authority" should be added to the article 80 of Social Order Maintenance Code to differentiate. Key words: Human Dignity, Self-determination, Sex Autonomy, Principle of Neutrality
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