Reconstruction Vol. 15, No. 2
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For Whom Are Child Protection Provisions Intended? An Argument about the Taiwan Railways Public Sex Event / Ya-fei Hsu
<1> At the end of 2011, a group of people on the Internet planned a sex party on an online forum. The participants were the organizer, Tsai Yu-Lin (hereafter referred to as Tsai); a girl known as "Hsiao Yu" who was alleged to be nineteen-years-old, but was later confirmed to be underage (hereafter referred to as Yu), twenty-one men who each paid NT$800 to participate, three of whom were accused of having served as security personnel, and two women who served as assistants. The day after the party, several participants posted feedback on the forum, expressing their gratitude to the "Goddess." She replied that having satisfied these men's sexual fantasies was very easy. The sex party took place in a Taiwan Railways Administration (TRA) carriage and became a media sensation that drew substantial interest among the general public and heated debate among sexual equality and civil rights organizations.
<2> On February 23, 2012, Ye Yijin, a legislator from the opposition Democratic Progressive Party, revealed that someone had booked a train carriage to hold a "1-woman, 18-man" sex party. The event burst into the public consciousness when the Chinese-language Apple Daily newspaper reported the case on its front page on February 24, 2012, sparking widespread concern over allegations that an inappropriate sex party had taken place on the public transportation system. Competing perspectives on the event reveal entrenched moral and cultural distinctions among social groups. Some decry the fact that photos from the live-sex party had been posted on the Internet. Ye argues that the event had explicitly endangered public safety, and lambastes the TRA for not having taken responsibility for passengers' safety. She accuses the TRA of having been imprudent and asserts, "If it had not been a sex party but a narcotics party or even a terrorist attack, I am afraid that the consequences would have been disastrous" (Zheng and Chen). Public views on the event's legal impact are inconsistent, leading to a great deal of speculation. Indeed, some commentators point out that if Tsai profited from the event, then according to the Penal Code, he could be sentenced to as many as five years in prison if convicted. Conversely, others observe that even without a profit the Social Order Maintenance Act could still apply, meaning that he may be detained for up to three days and fined up to NT$30,000.
Crime and punishment
<3> Media reports emphasize the fact that a single girl had engaged in sexual activity with eighteen men. Tsai and ten of the men were questioned by the Taipei City police. Two members confessed in their initial interviews that they had had sex with the young lady in a "harmonious atmosphere" ( China Post). An initial investigation revealed that Yu was an underage, seventeen-year-old girl. Although Yu, a vocational school dropout, states that she had engaged in consensual sex, the case was referred to the juvenile department of the Banqiao District Court as a violation of the Children and Youth Welfare Act, making Yu a sex offender. What was considered extremely shocking was that an underage girl had volunteered herself for a sex party and had lied about being nineteen. "If I can make guys' dreams come true with my body, why not? It is no big deal to me, anyway," she was quoted as saying (Quan). Shortly afterward, however, Yu was reclassified as a victim under Article 19 of the Child and Youth Sexual Transaction Prevention Act but was still sent to a correctional institution.
<4> On February 27, Tsai was arrested by the railway police on charges of violating public decency because of his orchestration of the sex party. His case was transferred to the Banqiao District Prosecutor's Office. In March 2012, prosecutors requested a six-month prison sentence for Tsai for attempting to profit from the sex trade, under Article 231 of the Act on Offenses against Sexual Morality in the Penal Code. The prosecutors argue that Tsai had been paid ahead of the event and did not return the remainder of the funds to the participants after spending the majority on the event itself. Tsai was taken into custody. However, after considering his detailed confession, the judge determined that there was no danger of collusion and he was acquitted by the court.
<5> Since sexual transactions with an underage girl had taken place, many were quick to conclude that the participants deserve legal consequences. However, as Wang Ping, secretary-general of the Gender/Sexuality Rights Association Taiwan, argues, "The sex party took place in a private coach, the participants did not do anything to harm others, they had security personnel on the scene to make sure everything was okay, they even cleaned the coach before they got off the train, they were more organized than a lot of other parties [. . .] So I think the problem is sex: apparently, a lot of people still think of sex as something horrible" (Asia One News). She points out that most people believe that sexual contact with an underage person presents a risk to the moral norms of the nation. Accordingly, anxiety over the incident became a cognitive and affective response that was viewed as "socially necessary" given the prevailing cultural imperative.
<6> After sitting on trial for over a year, in April 2013, Tsai was convicted of violating communal standards of sexual morality by the New Taipei City District Court and was sentenced to six months in prison. However, the five other defendants in the same case were found not guilty. In delivering its verdict, the court "stated that Tsai had elicited Yu to engage in sexual acts with some of the male participants and collected NT$20,000 in total from all those involved [. . .] The court found Tsai guilty, judging him to have profited from the event and to have a likelihood of organizing similar parties in the future" (Taipei Times). According to Article 231 of the Criminal Code, a person who intends to profit from arranging sexual intercourse or obscene acts between a man and a woman shall be sentenced to imprisonment for not more than five years. At least from a legal standpoint, the decision effectively dismisses the view that consensual sex had occurred and asserts that Yu was a victim of child sexual abuse.
<7> In his defense, Tsai alleges that he had no profit motive, and that almost all of the money went to pay for renting the train carriage and outfits, purchasing condoms, and cleaning up after the party. On April 30, 2013, he and his supporters held up a rainbow-colored banner with the slogan, "Defend people's freedom of assembly for sexual activities" (捍衛人民情色集結自由), outside the New Taipei City District Court as he appealed his conviction and sentence. However, he lost his suit in a ruling by the Taiwan High Court. After an appeal, on December 11, 2013, the Supreme Court upheld Tsai's six-month prison sentence and conviction for attempting to profit from sex, asserting that he had committed a crime involving moral turpitude. However, these decisions do not fully address the extent or meanings of protections under the law. Furthermore, the decision s may serve to condition the kinds of sexual autonomy upon which the decisions were based, particularly in terms of the systemic and historical restriction of women's sexual freedom.
The implications of historical advances in "Offenses against Sexual Morality"
<8> "Offenses against Sexual Morality" are included in the sixteenth chapter of Taiwan's Criminal Code, which came into legislation in the 1920s with the rise of the mooi-jai liberation movement in South China. Mooi-jai is a Cantonese term that was used to refer to trafficked servant girls. At that time, many girls from poor families were sold when they were seven or eight-years-old. For their new foster mothers, the girls were an extremely worthwhile investment. Once they grew up, they could be sold again as concubines or "pig flowers," a Cantonese term for women sold to the overseas sex trade. With the increasing number of overseas Chinese labors in San Francisco and Singapore, a strong demand for pig flowers emerged. During the 1920s, intellectuals in Hong Kong and progressive feminists in London launched the mooi-jai liberation movement to rescue underage girls and prevent them from falling prey to trafficking in order to reduce the number of victims of sexual violence, child laborers, and avoidable tragedies. Child-centered legal reform, following the template of the liberation movement to protect girls' freedoms that emerged in Hong Kong in the 1920s to 1930s, became oriented toward nurturing girls fit for the perpetuation of society.
<9> The number of kept maids in Hong Kong continued to increase until the early Republic of China period. The preoccupation among reformers with kept maids reinforced the belief that the social consequences of child abuse arose from a lack of civilization and decency. During the 1920s, the call for stricter standards and more effective enforcement was a reminder that the provisions for protection developed by progressive reformers were not simply an offer of sexual autonomy or personal freedom, but a commitment to regulation and instruction. <10> Notably, opponents of reform, who were primarily from wealthy Chinese families, considered the keeping of slave girls a Chinese family tradition that was an act of philanthropy toward displaced girls from poor families. Sexual abuse was the main reason that some reformers argued for greater state involvement in the lives of the mooi-jai. As a result of debates concerning the mooi-jai in the 1920s, underage sexuality became linked with the law.
<11> In Hong Kong, intellectuals of the mooi-jai liberation movement took the lead in developing measures that would simultaneously assuage the sexual anxieties of society and mute political resistance from rich Chinese families. They pressed their arguments regarding child protection, and interpreted problems related to sexual morals, the exploitation of labor, and feudal bondage in light of the old tradition. Meanwhile, the reporting of certain events in the media associated these social problems with the structure of slavery and characteristics of needy families, throwing modern intellectuals' emphasis on fulfilling social responsibility into sharp relief.
<12> Child sexuality gained social attention as a result of the experiences of maltreated girls, and arguments over child sexuality became a form of class war. The exploitation of labor, feudal bondage, and sexual inferiority combined to take girls' lives; reformers argued that the majority of girls could have been future citizens had they been properly cared for as girls.
<13> Though the opponents of reform viewed women's sexuality as requiring conformity with the regulations of the state, certain opponents did not seem to believe that sexuality was given or mutable. As Shou-son Chow explained in 1922 in testimony on the history of the child-oriented provisions in Offenses against Sexual Morality, "I doubt whether it is really better for the mooi-jai to obtain sexual freedom at the age of 18, when they are still in need of protection" (Welsh). For the nation, supervision of girls was always considered necessary. From the beginning, arguments about girls' sexuality distinguished girls deserving of protection from those who were undeserving. But in the reformers' view, even deserving girls required continuing direction and oversight. The reformers reviewed provisions for the protection of the mooi-jai during the 1920s to generate recommendations that could be subdivided into two groups. The first group of recommendations addressed problems pertaining to the social inequality of gender: for the most part, these recommendations insisted that the law be much more active in the legal supervision of sexual crimes. The second group of recommendations emphasized protecting girls' virginity until they were married as a goal. The second group of recommendations clearly bore the mark of the introduction of Christian civilization to Chinese society, and it argued in favor of the enforcement of national rules barring girls' sexual autonomy. The mooi-jai liberation movement achieved provisions for underage sexual autonomy through cultural reform; these provisions were thought to benefit the underage girl, under the model of the middle-class family and the social goal of the modern citizen.
<14> Whereas the protection of decency extended to every part of the agenda of the mooi-jai liberation movement in Hong Kong , progressivism began as an effort to enable the universal participation of all people who identified with its ideals. Legal reforms were promoted by labor unions and intellectuals. In turn, these were shaped by literate and sympathetic upper-middle-class women. Simply put, most people in most social strata benefited from the implementation of such reforms. The mooi-jai liberation movement and legislation regarding offenses against sexual morality were a chance to establish provisions pertaining to underage girls.
<15> Toward the end of the 1980s, with increasing interest in the sexual politics associated with child prostitutes, reforming laws pertaining to underage sex was pushed to the top of the political agenda. A number of religious and women's organizations conducted a campaign against prostitution that again transformed the concept of sexual autonomy. Through their efforts, people under the age of 18 were defined as children and protected as such by law. Article 231 of the Criminal Code, originally written to combat traffickers, was gradually transformed into a law that specified penalties for sex trafficking and sex industry workers, even sex workers who had chosen their professions. For those who claimed to be social reformers, however, the impetus to regulate underage sex coincided with an impulse to reshape all of society. In correctional institutions and among women's organizations, social agencies, and legal reformers, purity was contingent doctrine for sex. Thus, the special responsibilities of underage people in modern society to maintain this standard were accordingly emphasized.
<16> The issue of underage sexuality is closely related to the issue of sexual abuse by adults. It was considered necessary that legislation identify harmful practices that are child abuse-clearly defining what constitutes a sexual crime-and that laws to protect children were created or amended as necessary. Monitored and managed by middle-class women's groups, the criminal and juvenile justice systems came to severely regulate sexual behavior, targeting the "public decency" of the underprivileged and demanding a return to an emphasis on sexual morality. This legislation, facilitated the adoption by some women's groups of a heterosexual, child-centered, middle-class model of gender relations and family life, was ultimately made possible by the moral and cultural articulation of sexuality. Revived and expanded over the past twenty years, through the regulation of sexuality, the cultural conformity that continues to dominate public discussions of sexual morality was codified.
<17> Women's organizations have stressed the importance of protecting underage sexuality, but have not recognized their need to explore or experience sex. Underage people are forbidden to have sexual contact with strangers. From the end of the 1980s to 2012, the protective regulation of underage sex was an essential aspect of so-called "feminist reform," which sought protective laws to defend underage people against unscrupulous men in order to guard core family values and thereby preserve public decency. These organizations carried on the tradition of protecting the development of underage people to meet the needs of the middle-class family. Far from teaching them to stretch their ambitions in the world of sexuality, provisions for their protection have focused attention among minors on fear, hate, and the innocence of sex, in the service of cementing political order through a strong state and the control of the family.
Conclusion
<18> Why does the Criminal Code in Taiwan specify stiffer penalties for sexual offences against children? Local discourses on gender and sexual politics traditionally have been about gender roles and the sexual order. Sexual hierarchies, then, have been established based on the behaviors of underage people. The view that children who are rather open about sex are abnormal has always been entangled with the social stigma stamped upon child prostitutes. However, in notable ways, the sexual debate in the present-day differs sharply from debates that took place during the mooi-jai period. Previously, the necessity and legitimacy of sexual regulation were assumed and political conflict pivoted on when an underage person was considered to come of age. Now, one cannot question the legitimacy of any provision that ensures the purity of underage girls and that encourages abstinence as a way of life. Previously, mooi-jai were a domestic servant, sent to a different household from the one in which she grew up; now, underage girls are required to restrict their sexuality to the domestic sphere. Previously, mooi-jai could have sexual relations with men; now, all sexual contact is forbidden for underage girls. Dramatic changes in attitudes toward underage girls over the last 100 years notwithstanding, these attitudes continue to mark the stances of some women's organizations regarding sexuality today.
<19> In the Taiwan Railway public sex event, conservatives understood the victimized girl as proof that underage people need more protection against evil men, denying her sexual autonomy in the process. Instead of encouraging dialogue, discussion and education, the response was greater restrictions, regulations and controls. In contrast, it might be argued that Tsai unwittingly calls into question the notion of erotic freedom in a democratic society. At the very least, by speaking in public, he employed a form of political provocation distinct to the new generation. In this regard, his claim is indubitably a strong one, though the question remains as to whether it is radically unacceptable as a vision of democratic politics.
Works Cited
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China Post News Staff. (2012, February 28). Police take organizer of train 'sex party' into custody. Retrieved from http://www.chinapost.com.tw/taiwan/local/taipei/2012/02/28/333026/Police-take.htm
Chung, J. (2013, April 30). Man convicted of sex party on train appeals sentence. Taipei Times. Retrieved from http://www.taipeitimes.com/News/taiwan/archives/2013/04/30/2003561088
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Quan, I. (2013, December 14). Taiwan man sentenced 6 months after hosting 'train sex party' with teen. Shanghaiist. Retrieved from http://shanghaiist.com/2013/12/14/taiwan-sex-train.php
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http://data.book.hexun.com.tw/chapter-446-16-7.shtml ,
http://data.book.hexun.com.tw/chapter-446-16-8.shtml
Yang, K.W. & Pan, J. (2013, September 15). Most defendants found not guilty in train sex party. Taipei Times. Retrieved from http://www.taipeitimes.com/News/taiwan/archives/2013/09/15/2003572198
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http://life.chinatimes.com/2009Cti/Channel/Life/life-article/0,5047,11051801+112012022500041, 00.html
Notes
Work Cited
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