Flipped the bird, charged under Taiwan's "public insult" law

I’ll try to keep this brief.

In less than 2 weeks I must return to a Taipei District court for the second time to face trial for “insultment.” Yes, it’s a real word still found in some dictionaries, and it is apparently used when translating this law. It is also frequently called the “public insult” law. The law is, I believe, Article 309 of the Code of Criminal Procedure, commonly referred to in English as the Criminal Code of Taiwan.

I am still looking for an English translation of this law. If anyone can provide one, I’d be very grateful.

My goal in posting here is to perhaps attract some free legal help or advice, and to inform others of this weird law and its repercussions.

A good introduction to the law is this 2008 China Post editorial titled, Insulting law needs repealing.

The penalty, if I am found guilty, is a very small fine of NT$300. The free lawyer I met today seems to think I’ll be found guilty because in most cases the accused are found guilty. The law, as I understand things (none too well without actually reading the law itself), is quite simple and judges tend to just apply it literally not taking into account motives of the accused.

Here is the situation:

In the community where I used to live, there is a maintenance road providing easy access to a stream along which there runs a “gu-dao” (ancient trail). The trail is certainly public. The stream banks are also public, and I have been told (not with certainty) that Taiwan allows for harmless access rights for fishermen, etc. The maintenance road, I believe and have been told by the community guanli staff, belongs to a company that is now bankrupt and whose owner lives overseas but employs a person to continually attempt to gain profit to the company by insisting on their ownership of roads, water pipes and other infrastructure in the community. This person has, in the past, I have been told, stopped Taipower vehicles and water department vehicles from entering the community. The situation is quite well-known as it has been on the news in the past.

One afternoon in late 2009 I was walking my dogs along the maintenance road toward the stream and ancient trail. The mentioned employee accosted me and told me in rapid-fire Chinese that I was trespassing on private land and had to turn around. I didn’t understand much, but got the gist of it. I explained that I would continue on my way since the employee had no papers to show, wore no uniform, and I didn’t know who this person was. I proceeded along and s/he called after me. I turned and s/he was pointing a camera at me. I did not feel I was engaged in any criminal act, so I wasn’t going to hide my face or run. Instead I posed in the fashion commonly known as “flipping the bird.”

There were four other people with the employee being escorted out of the same natural area I was heading toward. The employee charged them with trespass as well, but their case was not linked to mine – because of my gesture and second charge I suppose. I don’t know if they saw my gesture (possibly important to determine if it was a public gesture).

An hour later, as I finished my hike, I chanced upon the same person who had summoned police to file charges. I had to later go to the police station to begin the investigation. I waived my right to silence and explained my story and point of view. My wife translated and the police report was filed. A few months later I had my hearing in front of the prosecutor. I will refrain from saying my opinions on the prosecutor’s demeanor, but he seemed very displeased by my rude gesture. (I looked somewhat like DeNiro’s mean mug in [strike]Deer Hunter[/strike] Taxi Driver in the photo of my gesture. I asked for a copy, but they wouldn’t give it to me.) He seemed equally displeased with the trespass claim after I showed him a screenshot of the Hsintian City website inviting people to access the natural area around the stream by the same maintenance road.

A couple of months later I got another letter summoning me to court over the public insult. The trespass charge against me was dropped, and I’ve heard the same charges against the other four people were dropped.

I went to my first trial and agreed to apologize to the plaintiff. The judge seemed pleased to end the case, and he neglected to specify parameters of the apology. I wrote a craftily worded apology saying I was sorry for breaking the law of Taiwan and that I was unaware my rude gesture was not a matter of free expression in Taiwan. The plaintiff didn’t like the wording and has proceeded to press the case further rather than dropping it as had been agreed.

The lawyer I saw today said I likely will be found guilty and then the plaintiff would be able to use a civil suit to claim restitution. I asked how this legal status quo can be valid since it allows anyone to goad a stranger into a rude outburst and then charge the victim. She said the fairness was in that I could have charged the employee with harassment, but not now since it happened over 6 months ago. :bluemad:

I’ll post this now and put my thoughts regarding strategy in a follow-up post.

Thoughts and advice is most welcome. I don’t want to hire a lawyer, but I hope some young lawyer might be interested in this case to make a name for him/herself. The media in Taiwan are usually very interested in this public insult law, especially when it is thrown at foreigners. I’m perfectly willing to keep appealing if found guilty with the intent to take up a constitutional challenge to the law’s validity – until talked out of this approach, that is.

I’m seeing a legal aid lawyer on Tuesday.

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Criminal Code Article 309

A person who publicly insults another shall be punished with detention or a fine of not more than 300 yuan.

A person who by violence commits an offense specified in the preceding paragraph shall be punished with imprisonment for not more than one year, detention, or a fine of not more than 500 yuan

Please note that one yuan = NT$30. So you could be fined up to NT$9000.

Not really.

Flipping the bird, as in giving him the old two finger salute?

C’mon, your defence is plain as anything: you were simply enumerating the reasons that made you think he was a twat. One, he was carrying on like a rat with his nuts in a mousetrap, and two, he was really really ugly.

What’s insulting about that?

You’re probably going to find yourself in deeper “insultment” shit by referring to the woman in question as a man.

Man, and to think that I flipped the bird to Dearpeter just the other day outside Athula’s – behind his back, of course. If only he’d turned round at the right moment, he could have charged ME, then he’d be able to at least break even.

I’ve never heard this. The “insultment” law is bizarre enough; how could 1 yuan = 30 yuan?

I believe that’s the one finger salute in NA, and the two finger salute Down Under (and sometimes in SA).

Where cameras are present I feign ignorance of Chinese or English and jabber on all smiley faced and imbecile looking in Afrikaans.
No cameras? I smile and use some choice “adjectives” that are usually only heard uttered by fisher folks down any docks in the Cape. :thumbsup:

A silly law in Taiwan! :astonished:

I think the lesson here is to immediately launch a harassment case against anyone daft enough to try to have you charged with public insult. That should take the wind out of their sails.

And find yourself slammed with a harassment countersuit? I think not. The clear lesson is not to insult anybody publicly. Do it in private.

Now, for my legal thoughts…

My basic defenses:

(1)
I could challenge the implicit claim of public. A maximum of 4 people saw my gesture. These 4 people were already prejudiced against the plaintiff, and I knew this because they voiced their support for my initial objections when the plaintiff accosted me. (I keep typing that word just in case I need to be mysterious - It’s an effort to avoid identifying the person by gender.) Thus my gesture didn’t lower the plaintiff’s social standing in any way, so by the spirit of the law I should be found not guilty. The insultment law (309), and the libel/defamation law (310) are in the same chapter of laws. The theme of the chapter is that the laws exist to protect people’s reputations.

(2)
I could challenge the claim of obscenity. This was most people’s first advice – to say the meaning of the gesture is unclear and thus not necessarily obscene. Recently, a prosecutor dropped a case in which an Australian had said "fucken"to a person because the word “fucken” couldn’t be found in the dictionary. My gesture, similarly, cannot be found in a dictionary. (Does this help me legally?) I could, and did suggest to the prosecutor, that it meant, “Don’t take my picture,” as I used it. Personally, I find this defense a bit wishy-washy.

(3)
I intend to ask the judge (well, my legal aid lawyer first) how it stands to reason that a malicious person with lots of free time could accuse a stranger of trespass on a public pathway, then goad him into swearing or gesturing rudely, take his picture, and charge him with public insult. The victim may well be too busy to launch a harassment “counter-charge” in self-defense, and the using of a public pathway for such a trick is a ruse. This seems fundamentally unjust. In Taiwan, where the prosecutor backs the plaintiff and the state funds the proceedings, it seems bizarre, even Kafkaesque. In my case, the guanli will testify that the employee was fully aware of the fact that the use of the maintenance road had already been declared public through the result of legal proceedings due to the bankruptcy of the company. So, she set me up, in effect. I was the victim of deceit and cunning, therefore not guilty.

My human rights defenses:

Now, if I am found guilty anyway, I can appeal. If I were to fully exhaust 3 appeals at this level and the two higher levels, then the case would go to the Grand Judicial Council (?) to rule on the constitutionality of the law. As much as being part of a constitutional test case would be exciting, that seems like a loooong trek and every appeal at every level must be used. If the insultment law were ever examined constitutionally, IMHO, the law would stand a very good chance of being nullified.

The Council did rule on C.C. Article 310 (defamation)and upheld the law, noting that it “does not exempt a public or private prosecutor from his/her statutory burden to prove that the accused has intended to damage another person’s reputation, a burden mandated by the criminal procedures…” This is the American derived, so-called test of “actual malice.” (Reference: law.upenn.edu/journals/jil/j … g-Yuan.pdf Pages 8,10,47

(4)

It could be presumed that Article 309 also should be seen as subject to an analogous actual malice test. Here, I believe I could argue that the actual malice in an insultment case would be the intention to make the insult public rather than private i.e. to humiliate somebody. In other words, the spirit of A.310, the High Judges have ruled, is that it is OK to be angry with or politically opposed to someone, but it is unlawful to spread lies about him/her. Therefore, analogously, it should be OK to get angry at someone and maybe cuss a bit (communicate strongly), but it is unlawful to publicly berate someone to the point of being “bian-tai.”

In my case, this is very hard to claim I’m guilty by this standard. Westerners are totally accustomed to making the same rude gesture on an almost daily basis in some areas. Taiwanese do it a bit too. They certainly will swear at people when provoked. The gesture is a normal reaction to ones perception of being unjustly inhibited by another, as for example, when driving in traffic. There was no attempt on my part to humiliate the plaintiff socially; it was just an unchecked, but commonplace, reaction. She was taking my photo (which is also a crime, so I’ve just learned - now checking the time limitations on it) and accusing me of being criminal. I guess this could be a relevant defense on October 4th, so I’ll number this argument as (4) and then move on to human rights points in a later post.

That’s similar to the quote from the China Post editorial, but I wanted to be more sure. My friend, a law student here, dug this up for me. The whole criminal code in English can be found on this blog. It’s a good link to bookmark I think.

So, I might be stretching things to say my anger was bona-fide self-defense (of my honor perhaps?), but insultment, come on. My wife suggested playing the TV show, Hell’s Kitchen, for the judge to demonstrate how Westerners and obscenity celebrate a joyous marriage together.

Again, I remind all readers that I am seeking your legal or not-so-legal opinions on these arguments and any other approaches you might suggest. Human rights defenses, which I love and will get to in a moment, probably won’t prove useful. Please tell me I’m wrong someone, but unless my judge feels like being the judge to refer a law for constitutional testing, I don’t think I’ll be found guilty and appeal nine times (Gawd, what a steep road to legal amendment!), so I’ll never be able to question the rationality of this law.

Finally, my HR defenses. This is quite simple really. The Constitution of the ROC simply states that: (Article 11) The people shall have freedom of speech, teaching, writing and publication. My gesture would be speech (expression).

According to the principle of proportionality that this person says Taiwanese high justices subscribe to, the insultment law is void because it is ineffective (everyone swears anyway), is overly restrictive (people can be hauled into court for normal behavior and entrapped through trickery like myself) and doesn’t yield benefits proportional to costs (few people refrain from swearing due to the legal penalties, however, the cost to the government of the relatively small but growing number of insultment cases is a clear waste of money and resources that could be used to actually make the streets safer in the face of rising crime.)

That’s a slam dunk, I think. So maybe some lawyer wants to try to push this case along. It appears to me that the plaintiff will never give up. And I’m pretty stubborn myself. We could try to be found guilty at each level, or beg the judge to url=http://www.law.upenn.edu/journals/jil/jilp/articles/1-1_Yeh_Ching-Yuan.pdf directly refer the case to the Grand Council[/url] each time. For me it would be an honor to help smite an unjust law before I die. :bow:

I hate to say it, and maybe I will get flamed, but I think you and the employee were both wrong. Wake up and smell the cultural coffee. You caused the employee – admittedly, a person everyone was ready to dislike and take sides against – to lose face. Huge no-no.

  1. She was wrong to order you off public land.
  2. You were wrong to refuse to listen to her, even though her request was stupid. It would not have harmed you to comply.
  3. You were really wrong to do something YOU KNOW to be rude and insulting.

In the Judge Judy world of rough justice, I fine you NT$3000 and ask you to apologize directly to the employee.

I do think it’s worth it to then work through whatever local channels are appropriate to get that access REALLY declared public land, signed correctly and all.

Why not increase goodwill and public access through working for change instead of being a prick through multiple legal challenges where honestly, you were wrong and you’re likely to lose? It’s not like there’s the first amendment here, there’s a law that says you can’t insult people. And I think the courts are nearly never going to say, “You’re right, Mr. Foreigner, we have silly rules and we’re sorry, show us the right way to live” – no, they are going to railroad you every way they can, to avoid losing face themselves. Even if they were clearly and totally wrong, you are never going to be right. I say accept it, smile and nod, apologize in a way that doesn’t cost you any face, and move on.

P.S. I don’t believe in capital punishment, but I was really REALLY glad when Singapore caned that American kid who chewed gum there despite his cry-baby parents. When in Rome, do as the Romans do, and if you don’t, be prepared for Roman justice. If you don’t like it, by all means, stay home.

Sorry to be harsh.

Capital punishment is the death penalty! I think you meant corporal punishment? Further, if you are talking about Michael Fay, then he was found guilty of theft and vandalism, not chewing gum!
:roflmao: :roflmao: :roflmao:

Please. Many of us are residents and even citizens of this country. We pay taxes, own businesses, raise children and contribute as much as anyone. We are Romans, to extend the analogy, which gives us every right to challenge the unfairness of patently, I repeat, patently, unjust laws.

This a legal anachronism and nothing more, and judges have been shown to be very happy when they can toss the cases out.

As for knowing it to be wrong, most of us have only very recently become aware of this law as no one was so fucking stupid to try and apply it before. Taiwanese in recent years have started to become litigious in an absurd way. This is not, I repeat, not something that used to commonly happen. Read the article dearpeter linked to:
chinapost.com.tw/editorial/t … ng-law.htm

What’s happening is a vague statute if being absurdly interpreted. It needs to be struck down and given how it is being unjustly applied to westerners we have every right to complain about it.

As for stay home. That’s an exceptionally rude thing to say on this forum. This is home for many of us.

I disagree. You’re new here, and understandably view yourself as a visitor, but me, Peter, and many others here already consider ourselves at home. Complying with stupid requests isn’t always necessary, and in fact, should be avoided whenever possible. And this “losing face” business is not something that should be pandered to. If this is a free society, then there is a price that we pay, including the possibility of being offended. Just paying lip service isn’t enough - society has to have the courage of its convictions when the going gets tough. If freedom is negotiable, or only available at whimsy, then it’s of no use at all.

Oh, and for future reference, my favourite insult is “Ni hao ke’ai!” (You’re so cute!) It steams up the recipient something fierce, but it’s not legally actionable.

Face

holding back progress for 5000 years.

Public insult much?

Stray Dog’s retort made me grin. I do appreciate and commend guardedly JuliaZ’s effort to avoid an ethnocentric Western perspective that is all too common, but this law is really bizarre and would have been expunged years ago if Taiwan’s legal system functioned more healthily. Think of the slippery slope that is offered up for literally anyone to compel the state to entertain frivolous charges of insult. No thought seems to have been given to A.309 when A.311 (exceptions) was written, so there are no defenses spelled out. If someone seduces my wife and ruins my marriage, must I keep my composure to do my part for keeping Taiwan a polite society or else face the prospect of a criminal record and days, possibly expensive, wasted in court? This law panders to the worst among us and it is simply too vague. It undermines public respect for the judiciary, and that’s the bottom line. If I could plead guilty and then appeal, I would.