Constructing the Regulatory Scheme of Obscene Materials in Criminal Law

This thesis is a research mainly on Article 235 of the R.O.C. Criminal Law, which makes it a crime to disseminate obscene materials. Because the proscription of the dissemination of obscene materials implicates restrictions on the freedom of speech proctected by the Constitution, it is necessary, at the outset, to discuss whether obscenity is within the scope of constitutionally protected speech. In this thesis, the author takes the “self-fufillment” approach as to why free speech is proctected, and therefore proposes that all forms of sexually-oriented speech should enjoy free speech protection, regardless of whether it is obscene or not. Accordingly, the proscription of the dissemination of obscene materials necessarily constitutes an interference with the exercise of the freedom of speech, and is therefore subject to constitutional scrutinies such as the Prescribed by Law Test, the Forseeability Test, and the Proportionality Test. The exact justification for proscribing the dissemination of obscene materials has been a highly controversial issue. In general, there are five approaches to this question: proctection of moral, protecting the well-being of minors, protecting human dignity, preventing the induction of sexual crimes, and protecting unwilling captive audiences. According to this thesis’ analysis, the first, the third, the fourth, and the fifth approach are all unpersuasive. In the author’s opinion, in light of Article 156 of the R.O.C. Constitution, Judicial Interpretation No. 623 and No. 664, and Article 17(2)(e) of the Convention on the Rights of the Child, the state is deemed to play a more active role regarding the protection of children, and should not overlook the fundamental differences between an adult and a minor. Because imperical studies have shown that pornography does have detrimental effects on minors, in the absence of substantial scientific rebuttals, it is reasonable to conclude that protecting minors against these harms should suffice a legitimate justification for proscribing the dissemination of obscene materials. Estabishing an unequivocal test for determining legal “obscenity” has always been an intractable task. Initially, the legal test for obscenity assumed by the R.O.C. courts focused mainly on whether the material has the effect of inducing lustful thoughts. Later on, Judicial Interpretation No. 407 added the “offensiveness” element to the legal obscenity test, and also emphasized on discerning obscenity from publications with artistic, medical, or educational merit. A few years later, Judicial Interpreation No. 617 finally established a landmark decision for the legal obscenity test. On the basis of the No. 407 test, No. 617 further divided obscenity into two categories----“hard-core” obscenity and “soft-core” obscenity, and, upon this seperation, placed different regulation rules on each category. As to comparative studies, the U.S. Supreme Court had made landmark decicions such as the Roth Test, the Memoirs Test, and the Miller Test in its attempt to establish the legal obscenity test. This thesis proposes that, if we take the child protection approach as being the justification for proscribing the dissemination of obscene materials, then the legal obscenity test should adhere to the definition of “pornography” described in the imperical studies on how pornography harms children. Under the child protection approach, the dissemination of obscene materials will be punishable only under the condition that the recipient is, or may possibly be, a minor. In this sense, Article 235 of the R.O.C. Criminal Law, making it a crime to disseminate obscene materials anyhow regardless of whether the recipient is or could be a minor, has a high chance of being condemned as unconstitutionally overbroad. This thesis suggests that Article 235 of the R.O.C. Criminal Law should be amended to a more narrowly-tailored form, under which only when the recipient is or could be a minor will the purveyor of obscene materials be punished. Under this legislation, if the purveyor took necessary steps in preventing minors from gaining access to the obscene materials, he will be immune from criminal sanctions. As to the question of what exactly suffices a “necessary step” for immunity, this thesis proposes that this question turns on the type of “media” by which the purveyor disseminates his obscene materials. In traditional types of media such as publications, caset tapes, movies, broadcast television, broadcast radio, or telephone, zoning obscene materials and discriminating the recipients is relatively easy. But in cyberspace, its anonymity and borderlessness makes zoning obscene materials and discriminating the recipients quite difficult. There are two types of regulatory models regarding the regulation of internet pornography----the “zoning” solution and the “filtering” solution. In the author’s opinion, the zoning solution is a more legislatively feasible solution, which means the onus of preventing minors from gaining access to internet pornography should be placed on the transmitter, not the receiver. But also note that, what types of blocking method can be sufficient to discharge criminal liability necessarily depends on the development of information technology.