| Summary: | 碩士 === 國立臺灣大學 === 法律學研究所 === 107 === This thesis aims reflects on the appropriateness of Article 221 of Taiwan Criminal Code from a feminist perspective. Over the past few decades, the rise of feminism along with the prosperity of feminist movement have given rise to critiques against gender biases in existing laws as well as suggestions of reform approaches to those biases. Accordingly, this thesis will start with the feminist discourses on rape issues, including how power relations are understood from a gendered lens, as well as rape law reforms triggered by the rise of feminist movement. Moreover, this thesis will look into the significant amendment of Sexual Offenses Chapter of Taiwan Criminal Code in 1999.
The amendment of Criminal Code in 1999 has shifted the legal interest of Sexual Offenses Chapter from protecting public morality to safeguarding individual sexual autonomy. Nevertheless, what exactly is the definition of sexual autonomy? This thesis tries to depict a more concrete and vivid definition of sexual autonomy based on the concept derived from social constructivism such as negative freedom, sexual integrity, sexual subjectivity and objectification. Meanwhile, this thesis argues that the difference between the freedom of sex and that of other general actions lies in the degree of autonomy repression.
Even though the existing law views the violation of will as an element of sexual offenses; in reality, rape myths still leave the cases such as date rape unsolved by Criminal Law. Therefore, feminists around the world propose four different legislative models, which are force, non-consent, affirmative consent and coercive circumstances, to answer the needs of amending sexual offense law. Among these different approaches, the amendment based on these various models processing in Japan, Germany and Canada are worthy of references.
Finally, this thesis attempts to provide feminist interpretation and legislative suggestion for Article 221 of Taiwan Criminal Code. For one thing, the argument for interpretation is based on the objectification of consent, and the means adopted by the person to repress sexual autonomy. For another, the legislative suggestion targets at differentiating sexual offenses through forcible means and those against the will of the victims with an anticipation to find a path that will free women from the shackles composed by the struggle between gender and power. To conclude, may the interpretation and suggestion allow women to find a way out of the oppression intertwined with sex and power.
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