It doesn’t matter what we think. Taiwan’s legislators for better or for worse have enacted laws against insulting people.
We don’t have these in the US. “Against a large part of the frictions and irritations and clashing of temperaments incident to participation in a community life, a certain toughening of the mental hide is a better protection than the law could ever be.” That is a good summary of American legal thinking on this issue, and I agree with it.
But Taiwan’s legislature has taken a different approach:
They are not alone.
Here is the German Criminal Code:
Some more nanny-ish states criminalize insults. Other do not. Taiwan is one of the former. RobininTaiwan is right. This ‘protest’ is infantile. This law is not going to be changed to meet liberal Anglo-American sensibilities.
I’m amazed that otherwise sensible adults can believe that a baby would have the whereabouts to make a legal stance. If you think something is infantile, you believe it to be something that only occurs among infants. I guess you had very different upbringings to me.
best thing to do is keep your trap shut.
if you can’t do that, look at them straight in the eye, speak calmly without using any key words, and remember to shake your head as you do it…nothing better a han likes is a crazy laowai yelling and ranting …that way you are setting yourself up…
If that were the case, lively, mature debate would be impossible. I can tell you why I think a course of action is stupid and infantile, and you can tell me why you think it isn’t. What you can’t do is go cry to mommy because you don’t like to hear my opinion.
Basically, the lesson here is that it is not wise to use overt insults in public or at least not to gift people with photographic evidence of an insulting gesture.
I discussed the German law with a German-lawyer colleague, and he points out that the punishments for insults in Germany tend to be very, very low and the cases filed tend to be very, very rare – except where there’s a complicating factor like the insult came in the midst of a physical altercation, property damage, or where the insult ties in with race, ethnicity, religious beliefs, etc. According to my colleague, the prosecutors and court have broad latitude to toss out cases in which an insult is not too serious or where the insult was in an exchange of insults, and of course there needs to be some sort of proof that the insult occurred.
With regards to Swiss law (which is a civil-code system with many similarities to those of German and of Taiwan), apparently there’s a great decision somewhere out there that my Swiss colleague recalls in which a court provided an insult-by-insult analysis of all the major cuss words to eliminate many from contention as true insults. If I get that, I’ll try to get it translated one of these days.
My unscientific analysis of Taiwan’s enforcement is as follows:
Criminal insult cases are often filed as a form of harassment. Sometimes they are filed as such against locals, but with foreigners there’s often more-complex overall stories, face issues, bizarre bits of retribution, as well as attempts to get settlement money. Foreigners do not enjoy a home-court advantage, of course, and there’s a tendency for a case that a foreigner would initially think of as baseless, ridiculous, clear harassment, etc. to suddenly proceed through the system to indictment or conviction because the foreigner didn’t retain legal counsel, did not receive or understand the prosecutor or court notices, or because the foreigner ran across the wrong police unit, the wrong prosecutor, the wrong judge, etc.
With regards to foreigners the seeming unfairness is compounded by the failure of the supposed victim to speak the language in which they were supposedly insulted. The case a while back where a university’s English department head pursued a criminal insult case against an American teacher over an utterly bizarre combination of words unlikely to be spoken by any native speaker of English (e.g., “You are the most barbarian Chinese.”) is an illustrative example. I’ve also seen cuss words used in a non-insulting situation form the basis for complaints – e.g., “Why the fck did you do that?" or "What the fck is going on here?” To paraphrase the Beatles: All you need is f*ck.
Police, prosecutors and courts often do a poor job of getting rid of cases at an earlier phase:
a) Police often do a poor job of recording contradictory or inconsistent statements by the complainant. Although this goes outside the area of insults, I recall a case from a little ways back where police forwarded on for prosecution a “trespassing” case in which the local Taiwanese complainant admitted he’d invited the foreigner into the premises while at a post-complaint meeting in the police station. And yet this admission never showed up in any of the files sent on. And so the prosecutor treated the trespassing case as if it were a serious matter.
b) Prosecutors often do a poor job of clearing out insult cases through their substantial powers simply not to indict, to move cases into “simplified” proceedings, to issue a “suspended indictment” or to use the other procedural means at their disposal that are often used to allow leniency for locals accused of more-serious crimes. But then, perhaps they’re often not inclined to do so because foreigners often assume that the case is “ridiculous” and that the prosecutor will of course see through it. Hint to the wise – they won’t.
c) Judges are often quite passive about false testimony from complainants or in getting actual proof of an insult or in trying to understand the complex linguistic points of insultology.
Foreigner defendants often do a poor job of getting rid of cases at an earlier phase. Check your mail, and get help if you need it to find out what’s going on. Hire legal counsel at an earlier stage. Show up to hearings, and show up sober, respectful and dressed nicely. If the complaint is utterly fabricated, consider the standard local move of counterattacking via malicious prosecution charges against the false accuser. if your accuser insulted you as well, do consider your own rights to file against them. This is just my gut feeling, but a failure by defendants to stick up for their rights will often be read against them – as if the thinking of prosecutors and judges were something like: “Well, if he really thinks that the other complainant is lying and insulted him, then why hasn’t the defendant filed a complaint as well?!?”
Although not directly relevant to point 4, above, a few years back I had worked with some colleagues to do some analysis on a huge pile of Taiwan criminal district-court and appellate matters that had been transferred over. The result generally shored up the idea that if only one side appealed a case they stood a statistically higher chance of getting an improved result at the High Court level, but if both sides appealed a case then the High Court was statistically just a little more likely to just uphold the District Court result. This matches a bit with common sense – most appellate judges don’t like to reinvent the wheel and if only one side makes a good argument for a change they might get what they want in line with “squeaky wheel” concepts. I suppose my larger observation here is that if you think you’re about to get screwed by the scales of justice, it’s time to get serious about putting up some heavyweight material to change the balance.
I think you should quit while you’re ahead Rob. You’re now simultaneously holding the postion that one should be tough enough to take harshly worded opinions, such as “your actions are idiotic” yet should also be allowed to seek criminal prosecution should those hash words include a fuck as in “your actions are fucking idiotic” or “for fuck’s sake, is that what you plan to do?”
There was also a very interesting op-ed piece (Chinese) in today’s China Times by a Taipei District Court judge arguing that while the Republic of China may be 100 years old, its judicial system is still stuck on Year One.
One point he makes is that the Criminal Code was at first based on the reformed Qing Criminal Code and the debate at the time between the ‘moralist’ school (li3) and the ‘legalist’ school (fa3) about the aims of criminal law. Perhaps Taiwan’s public insult law has something to do with that old debate in the sense that the the moralist school might have wanted a public insult law to police social mores rather than as a means for society to punish those who have transgressed against its most fundamental values.
After reading a few convictions, I’m struck by how broadly the Taiwanese courts construe what is an insult. Calling someone crazy in public is enough to get a conviction! Taiwan’s prissy, conservative judges seem to take this as a license to enforce their ideas of decency and ‘civilized’ behavior. Foreigners beware!
Both those sentences are addressing the actions, not the person. In the first sentence, fucking is an adverb open to various interpretations, and in the second sentence, it’s just a vulgar idiom.
I know what you and the dog person are saying, Mucha Man. Of course a diverging opinion can be offending. You have the right to your own opinion, though, so don’t go crying to mama, is what I’m saying.
In comparison with a genuine opinion, saying fuck you or flipping the bird serves no good purposes. They are just mindless insults.
Yes, thanks John. Your input is much appreciated from my end, and I guess from lots of others’ too since this law has attracted a lot of interest now.
I just thought of one thing I should add that might help RobinTaiwan understand my “stupidity.” When I was first charged, I thought the only punishments I would face were a minor fine or optional jail time. So, I wasn’t so concerned about myself and more concerned with principle.
It wasn’t until after she filed a civil suit (or, more correctly, shortly before my second trial when the free legal adviser told me she probably would do this) that I became very concerned for the effect of all this on my own pocketbook. Perhaps I would have been more falsely apologetic and shown a higher level of mock contrition had I then believed that it would save me several $NT10,000.
And, now I will go silent on matters of my own right/wrongheadedness. Really, I want to discuss measures and legal principles, not my own temperament.
Put me down as the guy who thinks it’s stupid to flip the bird at strangers in a foreign country and who thinks it’s even more stupid to fight, in a Taiwanese court, for the right to freely behave as such. I’ll wear the badge. Principles?
I think there are some similarities with Japan where a similar law is also on the books, but as this article points out very very rarely gets enforced:
Put me down as the guy who thinks it’s stupid to flip the bird at strangers in a foreign country and who thinks it’s even more stupid to fight, in a Taiwanese court, for the right to freely behave as such. I’ll wear the badge. Principles? [/quote]
Can I make you a badge with ‘hypocrite’ on it? Will you wear that one too?
Well. what about a mindful insult, then? Those are illegal, too. If I tell an irate man that he’s cute, he would be insulted, but is it prosecutable? What if I tell someone they drive like a fucking idiot? Not saying they in fact ARE fucking idiots, just that they drive like one. Is it better to be told one is an idiot or like a fucking idiot? The former is more direct but lacks the intensifier, while the latter is metaphorical but has the vulgar intensifier. Who decides the degree of insult? Am I allowed to swear at a person in a Taiwanese aboriginal language? How about in a Chinese aboriginal language? Considering that the R.O.C. encompasses all of China, surely even Tibetan curses are off-limits? How about Sanskrit? Esperanto? Pig Latin? What if I call someone a [wikipedia]schmuck[/wikipedia]? Or a schlemiel? It’s good enough for Bugs Bunny, but would Bugs be sued if Yosemite Sam were Taiwanese? Gestures are language also, right? What if a hearing impaired person signed an insult? Is it actionable? Does it make a difference if one signs in [wikipedia]American Sign Language[/wikipedia] or in [wikipedia]Chinese Sign Language[/wikipedia]?
My point is that the whole thing becomes arbitrary and whimsical. You can not legislate niceness. Even in China, [wikipedia]Grass Mud Horse[/wikipedia] (草泥馬), a defiant workaround to Internet censorship, has become an Internet meme. It’s best if dearpeter’s case and hundreds more like it go to court until it gets struck down. This won’t likely happen with one case. It will take many, many cases. I think fighting for free expression in a free country is laudable, and I support dearpeter in his fight, Quixotic as it may be.
This is the second time you’ve been unhelpful, judgemental and very vocal against someone going through a genuine, real-life hard time. IMO, your views are strange and you take some perverse pleasure in a country’s backward laws meshing well with these peculiar moral views. You have a problem with a guy flipping a bird in the heat of a dispute, but have seemingly no problem insulting a stranger who has not wronged you and with whom you have no dispute. Which is worse? To hell with human rights, just as long as you agree, I guess.
