Petitioner Hong-Yi Tseng was prosecuted by the public prosecutor for the crime of forcible sexual intercourse with a minor. The Taiwan Taipei District Court sentenced him to six years’ imprisonment by the Taiwan Taipei District Court Criminal Judgment 95-Su-Chi-110 (2006). After the Petitioner appealed, the Taiwan High Court commuted the sentence to three years and ten months of imprisonment by the Taiwan High Court Criminal Judgment 96-Shang-Su-220 (2008). The Petitioner appealed further but the Supreme Court considered the appeal unlawful and rejected it by the Supreme Court Criminal Judgment 99-Tai-Shang-1975 (2010). Hence, this petition argues that the definitive final judgment should be the above Taiwan High Court’s Criminal Judgment. The Petitioner claims that, applying Article 17, Subparagraph 1 of the Sexual Assault Crime Prevention Act, the definitive final judgment infringed upon the Petitioner’s right to judicial remedy and due process guaranteed by the Constitution, due to the fact it took the statement made by the victim to the judicial police as one of the pieces of evidence for determining the Petitioner’s guilt. He sought a constitutional interpretation from this Court. The petition is consistent with the requirements for a petition for constitutional interpretation under Article 5, Paragraph 1, Subparagraph 2 of the Constitutional Court Procedure Act and, thus, should be accepted. Hence, this Interpretation was made for the reasons outlined below.
According to the liberty and security of person and the right to judicial remedy guaranteed in Articles 8 and 16 of the Constitution, the criminal defendant shall enjoy the right to a fair trial by the court in accordance with the principle of due process of law. In particular, the defendant shall enjoy the right of full defense in litigation (J.Y. Interpretations Nos. 654 and 762). This includes the right to confront and question witnesses (J.Y. Interpretations Nos. 384, 582, and 636). In order to implement the principle of due process of law under the Constitution, the criminal trial system constructed by the Code of Criminal Procedure should adopt the principle of evidentiary adjudication and the strict rule of evidence. A court may determine a defendant’s crime only if lawfully-investigated evidence with evidentiary value forms conviction sufficient to show that the defendant has committed a crime.
Based on the constitutional right to defense in litigation, a defendant’s right to confront and cross-examine witnesses at trial should be protected to the fullest extent possible. For this reason, out-of-court statements by victims who are not cross-examined in court shall be, in principle, inadmissible as evidence. In cases of sexual assault, the legislator, for the sake of the victims’ interests such as reducing secondary victimization, has made an exception in legal provisions which recognizes that the victims’ statements to the judicial police have an evidentiary effect. If such provisions sufficiently ensure that the extrajudicial statement is the last resort to secure evidence and that there is appropriate and equitable compensation for the loss of defense rights that the defendant may suffer as a result, so that the defendant still enjoys the protection of full defense rights, then these provisions present no conflicts with the requirement of due process in law under Article 8 and the protection of the right to judicial remedy under Article 16 of the Constitution.
Most sexual assault cases occur in private and closed environments with few third parties present. In criminal proceedings, defendants often need to rebut the credibility and truthfulness of the victim’s testimony through confrontation and cross-examination. The victims in sexual assault cases, however, may suffer from aggravated physical and mental trauma as they may have to face the defendant, reveal personal and private information, and repeat the story of their victimization. Article 17, Subparagraph 1 of the Sexual Assault Crime Prevention Act, as amended and promulgated on February 5, 2005, stipulates the following: “In a trial, a victim’s statement made during an investigation by a prosecutor investigator, a judicial police officer, or a judicial policeman under any of the following circumstances shall be admissible as evidence if it is proven to demonstrate credible special circumstances and is necessary to prove the existence of the crime: 1. The victim is unable to give a statement due to physical or psychological trauma resulting from the sexual assault.” (This Subparagraph was amended and promulgated on December 23, 2015, and was only a textual amendment. It is hereinafter referred to as the Dispute Provision). It takes into account the characteristics of sexual assault cases while fulfilling the purpose of discovering the truth in criminal proceedings and protecting the victims of sexual assault. It specifies that, if the victim is unable to make a statement at the trial due to physical or mental trauma caused by sexual assault, the court may endow with evidentiary power the victim’s statement made during the investigation by prosecutor investigator, judicial police officer, or judicial police (the "Police-Inquired Statement") ——if the statement demonstrates credible special circumstances and serves as the premise to prove the existence of the crime. This is a special provision of Article 159, Paragraph 1 of the Code of Criminal Procedure, and is, in nature, an exception to the Code, and, therefore, its interpretation and application shall strictly follow the abovementioned constitutional principles.
To this end, the section which states that the victim is “unable to give a statement due to physical or psychological trauma resulting from the sexual assault” refers to the victim’s inability to present the case at trial due to the physical and mental trauma caused by the sexual assault as disputed in this case. Based on the constitutional protection for the criminal defendant’s right to defense in litigation, the protection of the criminal defendant’s opportunity to cross-examine witnesses should be protected to the fullest possible extent. These options should apply only in cases where, objectively, it is impossible to reasonably expect the victim to appear in court to make a further statement about the circumstances of the victimization due to the victim’s traumatized physical and psychological state. In the event of a dispute, the court shall conduct a necessary investigation based on the prosecutor’s evidence (such as professional appraisal procedures and mailing investigation on relevant information on the victim’s physical and mental status). The defendant should also be able to exercise the defense rights to present opinions, debate, and interrogate relevant witnesses and experts regarding the methods, procedures, and results of the investigation in order to confirm that the victim is indeed unable to present at the time of the trial due to the physical and psychological trauma resulted from the sexual assault. If the specific condition of the victim is yet to be ascertained, the court should still summon the victim to court whenever possible upon request. For individual cases, if it is possible to secure appropriate trial protection measures such as examination or interrogation of the victim outside the courtroom, or use of audio or video transmission technology and like isolation measures (Article 16, Paragraph 1 of the Sexual Assault Crime Prevention Act), which considers both the effective protection of the victim and the need to discover the truth in criminal proceedings, then there is no room for the application of the Disputed Provision.
Secondly, the clause "proven to demonstrate credible special circumstances" found in the Dispute Provision refers such a situation——an overall determination on the sexual assault case is formed through proper investigation based on the temporal and spatial environment and relevant factors at the time when the victim’s Police-Inquired Statement was made. Such a determination should be capable of proving that the Police-Inquired Statement is not generated out of violence, coercion, inducement, fraud, fatigue interrogation, or other improper external interference, and whether the inquirer of each incident, on the premise of avoiding gender-stereotype bias, is professionally trained, whether or not there is an escort system, the time interval between the victim’s statement and the crime, the attitude and emotional response when making the statement, the manner of expression and the level of detail of the content, and so forth, with sufficiency to evidence that the statement demonstrates the special circumstances of assured credibility without prior confrontational interrogation. In this regard, the burden of proof is on the prosecutor, who should show how to prove this. Based on the constitutional protection for the criminal defendant’s right of defense in litigation, the above Police-Inquired Statement shall be recorded or videotaped continuously throughout the entire process. During the process of investigating evidentiary value, the defendant shall be allowed to exercise the right to examine the interrogator of the victim’s Police-Inquired Statements, the makers of the transcripts, or witnesses and experts thereto related. The defendant may express their opinions during the inspection of the Police-Inquired Statement and videotapes to dispute and verify whether the victim’s Police-Inquired Statement is indeed credible.
To discover the truth and to protect human rights, criminal proceedings, unless otherwise provided by law, oblige everyone—including the victim of the crime—to be a witness in others’ cases (Article 176-1 of the Code of Criminal Procedure). To ensure the defendant’s right to defense in litigation, a witness who is called to testify shall, in principle, be present to give a statement under oath in accordance with the law and be interrogated by the defendant before the witness’ statement can be used as a basis for determining the facts of the defendant’s crime. If a witness fails to appear at the time of trial after being subpoenaed, the defendant will not be able to confront or interrogate the witness, which may be detrimental to the defendant’s right to defense. In the sexual assault case before us, the victim was unable to appear in court to make a statement and be cross-examined, and the exception was to use the Police-Inquired Statement that is consistent with the aforementioned intent as evidence. The court should, based on the constitutional principle of fair trial, adopt effective remedial measures in subsequent proceedings to appropriately balance the defendant’s loss of the right to defense due to the inability to cross-examine the victim. This includes strengthening the defendant’s right to confront and examine other witnesses in the process of investigating the evidence. In terms of evidence evaluation, the court should particularly refrain from relying on the victim’s Police-Inquired Statement as the sole or primary evidence of the defendant’s guilt. Moreover, it should have other corroborating evidence to support the truthfulness of the criminal facts that the Police-Inquired Statement mentions.
To summarize, the Dispute Provision is intended to consider both the discovery of truth and important interests such as effective protection of sexual assault victims; thus, its purpose is justified. If the victim’s Police-Inquired Statement, on the premises that it meets the above-mentioned intent, has gone through the necessary court’s investigation, and the defendant can exercise various defense rights to fully debate and verify its statutory requirements; and, if it has been taken as an exception and the last resort for evidence in the litigation, with appropriate and equitable compensation for the defendant’s loss of the right to examine in the litigation, and is not the sole or primary evidence of the defendant’s conviction, then within this scope, the Dispute Provision is consistent with the requirement of the due process of law in Article 8 and the protection of right to judicial remedy in Article 16 of the Constitution.
Victims in sexual assault cases already suffer greatly from the need to provide a detailed account of their victimization and thus violating their privacy in criminal proceedings. If they are required to state the details of their victimization repeatedly in the process, it often causes great suffering and torture to their body and mind. This is particularly true for juvenile victims. At the same time, it is worthwhile to clarify that based on the State’s obligation to protect crime victims, in cases of sexual assault, especially those involving minor victims, prosecutors should start relevant criminal investigation procedures as early as possible and conduct the first interrogation in an appropriate way. This will help the victims avoid repeatedly stating the details of their victimization before the trial.
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*Translated by Mong-Hwa Chin