Obscenity, Sex and Morality:An Argument Started with the Controversy in Gin Gin Gay Bookstore Case

• Main Authors: Jia-Yi Lin, 林佳儀
• Other Authors: 陳妙芬
• Format: Others
• Language: zh-TW
• Published: 2009
• Online Access: http://ndltd.ncl.edu.tw/handle/75989910390118504408

碩士 === 國立臺灣大學 === 法律學研究所 === 97 === What is the meaning of “obscene material or objects” in the article 235 of the criminal code? Actually, the concept of “obscene” in itself is unclear. The two interpretations of the justice of the constitutional court (J.Y. Interpretation No. 407 and No. 617) tried to answer this question. They defined the concept of obscene to avoid violating the principle of clarity and definiteness. However, both of them can’t solve this question successfully. What’s more, their effort they made in this issue may even cause more problems when applied in real cases, like, the controversial Gin Gin gay bookstore case. This thesis will indicate that all of the problems and difficulties mentioned above actually result from the legal interest that the article 235 of the criminal code intends to protect, the “social decency”, which the definition of the concept of obscene is involved in and can’t be divided easily. In order to avoid this traditional myth, this thesis here won’t try to find out the best definition of “obscene material or objects”. Instead, it will deal with the most fundamental issue: Whether it is reasonable to use the criminal law to remain the social morality, or better to say, the sexual morality. This thesis will use the famous “Hart- Devlin Debate”, to discuss in which condition the government has right using criminal law to restrain the personal liberty and thereby derive the “harm principle” of liberalism as the limitation of personal liberty and the line between criminal norm and moral norm. However, when the harm principle is applied, it might sometimes not be so clear, especially in the case of “sexual morality harm”, typically result in the ashamed or disgusting feeling of average people, which is generated by the obscene material or objects. Could these feelings also be recognized as harm? To answer the question, this thesis will adopt the analysis in Martha C. Nussbaum’s book “Hiding from Humanity: disgust, shame and the law”, and point out some feelings, like shame and disgust, are not appropriate to be considered as the harms on criminal law. For this reason the protected legal interest “social decency”, which based on these feelings above, is also not legitimate-- otherwise the criminal code would just be taken as an instrument to oppress and discriminate against the sexual cultural minority. This thesis will also review the “hard core pornography”, which is absolutely forbidden in J.Y. Interpretation 617, to prove that it is harmless by facing its context of sexual culture. Finally, this thesis will use the theories mentioned above to respond the main issue in Gin Gin gay bookstore case. I would like to make the conclusion by stating that the criminal code’s regulation of sexually explicit language or material should be based on the protected legal interest of “sexual autonomy” instead of the “social decency”, and we should not use the word “obscene” in criminal law for the sake of it in itself is already discriminated.