The Problematic Application of Article 225 of the Criminal Code - a view of the right to sex of the mentally-disabled
Date Issued
2012
Date
2012
Author(s)
Liao, I-Ning
Abstract
Abstract
The interpretation of Art. 225 of the criminal code has not received due attention from academic studies. Since after the last modification of the Criminal Code in 2005, Art. 225 has generally been considered as meant to intensify the protection of individual sexual autonomous right as it extended the protection of sexual autonomy from “proper inroads of sexual right” to “the legal fictional inroads of sexual right”, and emphasized “sexual contact is illegal with the absence of the victim’s consent”, protecting absolutely the individual’s sexual self-consciousness. Accordingly in the case when a victim consents to the sexual behavior, the court should decide first that if the victim has the ability to consent. If the victim is found to have no sexual cognitive ability equal to ordinary people due to mental disorder or intellectual disabilities, their consent on sex would be regarded as invalid, and the sexual contact defined as a crime under the law.
This Article attempts to analyses Art. 225 and review this rationale. It focuses first on the purpose of the law, defining it as to protect individual sexual image and sexual autonomy, which is broader than the protection of individual sexual “liberty”. Protection of such as defined in this Article has been considered extremely important because it bears strong ties to individual subjectivity and human dignity.
Second, this Article, in the light of the similar critique from Martha C. Nussbaum and Michal Foucault, points out the relativity of sexual autonomous right and the practice of subjectivity, and stands for the point of view that each person should be allowed to realize their ideal sexual image in their own ways. What the state should do is to provide more possibilities of choice, not to defend for a content-specific sexual image. In addition, liberty of the person who would probably face criminal prosecution should also be considered.
Finally, this Article discusses solutions under the law to realize the sexual right of the mentally disabled. It proposes that the ability to consent on sexual behavior of the mentally disabled should be comprehensively admitted by law. Their consents are valid under the law regardless of why they said “yes”. Even when a victim showed neither consent nor refusal to the sexual contact, as long as there is no evidence to prove their sexual images derogated by the sexual conduct, the person who had committed sex with him/her ought not to be convicted. Eventually the application of Art. 225 should be confined only to those cases in which the victims had temporarily lost their consciousness or the ability to resist.
Subjects
sexual autonomy
taking advantage of
mental retardation
intellectual defect
disability of refusal
ability to consent
individual sexual image
subjective consciousness
Type
thesis
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