Sex offender post-sentence mandatory therapy 'mostly constitutional': court

12/31/2020 10:30 PM
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The Constitutional Court. CNA photo Dec. 31, 2020
The Constitutional Court. CNA photo Dec. 31, 2020

Taipei, Dec. 31 (CNA) Taiwan's Constitutional Court on Thursday declared that current laws allowing convicted sex offenders to be held in a designated facility for therapy after completing their sentence are "mostly constitutional."

However, the court ruled it "unconstitutional" that the laws do not give convicted sex offenders a chance to express their opinion before making them undergo inpatient treatment after completing their prison term.

The Ministry of Justice (MOJ) should also ensure such therapy is undertaken as a form of rehabilitation rather than a punishment, it said. Currently the only such facility in Taiwan is inside Taichung Prison.

The court instructed the ministry to make adjustments to the current process within three years to protect the rights of ex-convicts.

The court made the constitutional interpretation after four petitioners asked the Grand Justices to rule on the constitutionality of holding convicted sex offenders after completing their sentence at a designated facility for mandatory therapy.

The argument revolved around Article 91-1 sections 1 and 2 of the Criminal Code and Article 22-1 of the Sexual Assault Crime Prevention Act, which states that sex offenders can be ordered to undergo inpatient treatment after completing their prison terms, if a medical evaluation concludes there is a danger of recidivism.

While the laws specify that offenders held at such facilities must be evaluated annually to determine their progress, they do not set a maximum period for such therapy, meaning that in principle individuals can be held indefinitely.

The lead petitioner in the case, surnamed Lu (盧), was sentenced to three years in jail for a sexual offense and fraud but was held in the psychiatric facility in Taichung Prison for nine years because he was deemed a threat to the public, based on his annual medical evaluations.

After his release from the facility in September, Lu filed for a constitutional interpretation as he found it unacceptable that he had served nine-years mandatory therapy after receiving a three year sentence.

The petitioners argued that the laws on the issue violate Article 8 of the country's Constitution, which guarantees personal freedom, and also Article 23 on the principle of proportionality.

One of the co-petitioners, Judge Chang Yuan-sen (張淵森), praised Thursday's constitutional interpretation with the Grand Justices ruling that these sex offenders' opinions should be heard before they are subject to mandatory therapy.

However, Chang expressed regret that the Grand Justices ruled out a maximum limit for mandatory therapy because such decisions should be made on a case-by-case basis.

Chang argued that while the risk of recidivism among sex offenders is well known, many cases involving ex-convicted sex offenders demonstrate a clear lack of proportionality, given that many spend much longer in psychiatric detention than in prison.

According to Chang, if there is no limit on mandatory therapy people can be locked away for life, regardless of the severity of their crimes.

In response, the MOJ on Thursday said it respected the constitutional interpretation, while pledging to make adjustments to the existing process as soon as possible.

According to the ministry, there are around 60 ex-convicted sex offenders currently receiving therapy.

The MOJ has previously argued that compulsory therapy is a form of rehabilitation rather than a punishment.

The ministry stressed that the system is being used judiciously, saying that of the 9,049 individuals convicted under the Sexual Assault Crime Prevention Act between 2010 and September 2020, only 158, or 1.74 percent, have been ordered to receive compulsory treatment, and most have since been released.

(By Lin Chang-shun, Liu Shih-yi and Joseph Yeh)

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