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.