Chen Jianzhou (black) lost the case.
On December 19, according to media reports, in the case of Taiwanese artist Chen Jianzhou v. artist Daya (Zhou Yipei) for criminal aggravated defamation, the prosecutor determined that Daya was not fabricated facts and would not be prosecuted.
Photo / Weibo @Sina Entertainment
On June 27 this year, Daya posted an accusation against the artist Chen Jianzhou, accusing the other party of sexually harassing him 11 years ago when he was on a business trip; Chen Jianzhou denied this, and sued Daya with his wife Fan Weiqi for compensation of NT$10 million (about RMB 2.33 million), and asked Daya to apologize on social media for three days.
After that, a number of women came forward to accuse Chen Jianzhou of sexual harassment and show solidarity with Daya. Among them, female artist Guo Yuanyuan said, "We all want rotten people to kick the iron plate, but we don't dare to become that iron plate...... It's not easy to be that iron plate, it's too painful to be that iron plate, and it's admirable, distressing, and admirable to be every person on that iron plate."
After following the lawyer's advice, Chen Jianzhou withdrew the civil compensation lawsuit and filed a criminal aggravated defamation lawsuit instead.
Although Chen Jianzhou lost the lawsuit this time, in the judicial practice of sexual harassment-related cases, there are not a few counterattacks from the accused, and there have been cases in which the complainant has been judged to lose the case. This situation has undoubtedly added more obstacles for victims to defend their rights – unlike the "high rate of false accusations of sexual harassment" that many people imagine, sexual harassment cases have always been known for their low complaint rate and low success rate.
For example, according to a 2022 survey by Taiwan's Ministry of Labor, only about 20% of victims of workplace sexual harassment filed complaints. According to a 2018 China Workplace Sexual Harassment Survey Report, less than 30% of victims of workplace sexual harassment seek help.
To become an "iron plate", it is necessary to face the status quo: evidence, environment, culture, public opinion...... In front of the victim is a road full of thorns.
Photo / Weibo @ Luo Serious
Why are sexual harassment cases so difficult to charge?
"TA is voluntary", "I didn't do it at all", "Just a joke", "I accidentally bumped into it", ...... Behind these common arguments is a very core legal concept - the presentation of evidence.
In civil litigation, most cases follow the rule of "whoever asserts it, who bears the proof", and the burden of proving sexual harassment is entirely on the plaintiff. Specifically, under Article 1010 of the Civil Code, the plaintiff must prove the following elements: (1) there was an objective act carried out "by means of words, words, images, physical acts, etc.", and (2) it was against the will of the victim.
At the same time, to win the case, the plaintiff must present more evidence than the defendant.
In court, this is not so easy to achieve.
According to the Case Study Report on Prevention and Control of Sexual Harassment Law and Judicial Trials (2019-2021), the success rate of cases related to sexual harassment determination is less than 30%.
The Report points out that in many cases of sexual harassment, the environment in which the situation takes place is in a closed space, the concealment and secrecy are strong, or the time of occurrence is relatively short, and it is extremely difficult to retain physical evidence, so only the victim's statement is the court's determination of sexual harassment. In limited circumstances, the court will sometimes combine the defendant's usual words and deeds, witness testimony, post-incident communication records, and written guarantees at the police station, but it is still difficult to make a single victim statement.
In addition to the evidence, the statute of limitations is another issue. The statute of limitations for the right to claim damages provided for in the Civil Code is three years, calculated from the date on which the victim knew or should have known that the infringement had been suffered. More than 3 years after the occurrence of a sexual harassment case, even if it goes to court, the defendant can defend that the statute of limitations has expired and ask the court to dismiss the plaintiff's claim, so that the substantive rights are deprived of legal protection.
In the Taiwanese drama "She and Her Her", the character played by actor Wu Kangren sexually harassed a female colleague, and then shouted to catch the thief, making everyone think that the female colleague loved him but couldn't do it, and he was a victim of constant harassment.
Outside of the law, the attitudes of relatives and friends, cultural influences, the lack of support and support systems, and even the fact that the person may not be aware that their rights have been violated are preventing victims from seeking justice in the judicial process, all of which contribute to the low rate of complaints in sexual harassment cases.
What is "reversal of the burden of proof for sexual harassment"?
In civil law, the burden of proof is a rule that proves the existence of facts. Because facts that have already occurred are not automatically presented to the public and the courts, this needs to be proved through the evidentiary process.
So, who is going to prove that something happened, and what does TA have to prove? It is the burden of proof that determines this.
In ordinary civil cases, the basic principle of the burden of proof is that "whoever asserts the claim shall bear the burden of proof", which is borne by the person who makes the claim (usually the plaintiff). The reason for this rule is that it is very difficult to prove that an event "did not happen" and would unreasonably increase the liability of the defendant.
However, there are also some special circumstances, such as when the expertise, resources, and distance from valid evidence of both parties are not equal, and it will be obviously unfair to let the plaintiff present evidence. At this time, the law no longer completely adopts the evidence distribution rule of "who asserts and who presents evidence", but puts the defendant on the burden of proof, which is "reversal of the burden of proof".
The more common reversal of the burden of proof is stipulated in environmental pollution lawsuits, medical lawsuits and other types of litigation, and all of them are expressly stipulated in the law.
An April 2018 article published by the Inspection Daily, titled "Dealing with Sexual Assault Cases, You May Try Reverse the Burden of Proof," pointed out that how to properly and fairly handle rational assault cases is a weakness of the law, and the key lies in the improvement of the design of the law and judicial procedure system.
Judicial practice in mainland China still supports the maintenance of the rule of "whoever asserts the claim shall present the evidence" in sexual harassment cases, because the Civil Procedure Law does not list sexual harassment infringement litigation as an exception to the basic principle. However, many experts and scholars have called for reducing the burden of proof on the plaintiff in sexual harassment tort disputes, so as to alleviate the problem of difficulty in proving sexual harassment.
One proposition is a complete reversal of the burden of proof, that is, the defendant proves that the sexual harassment incident did not occur, and the other proposition hopes that the judge will reasonably allocate the burden of proof in a specific case, and after the plaintiff has presented prima facie credible evidence, the defendant is required to provide evidence to refute it, and if the defendant only denies the accusation but cannot provide evidence to prove it, the court presumes that the sexual harassment has existed.
From a global perspective, there are still a few countries that have reversed the burden of proof for general sexual harassment, and the second type is more common, where the burden of proof is shifted between the original defendants.
Under this rule, victims of sexual harassment often only need to prove that the sexual harassment occurred and caused damage to themselves, while the defendant needs to prove that he did not do it or that the act was not against the victim's will. This shift in the burden of proof is often stipulated in campus sexual harassment or workplace sexual harassment, because compared with ordinary sexual harassment, these two types of sexual harassment have the characteristics of unequal power, and are more likely to occur in closed and hidden places, making it more difficult for the victim to provide evidence.
Countries such as the United Kingdom, the United States and France have adopted this approach, with France, for example, where a victim of sexual harassment in the workplace only needs to prove that sexual harassment has occurred, and then the burden of proof shifts to the defendant, who needs to prove that the act was not motivated by sexual considerations.
In France, sexual harassment is a crime punishable by 2 years in prison and a fine of 3,000 euros. In aggravated circumstances, the penalty can be increased to 3 years' imprisonment and a fine of 45,000 euros.
In addition to the general perpetrator of sexual harassment, society often ignores another person responsible for sexual harassment, that is, schools, enterprises and other units. According to Article 1010 of the Civil Code, government agencies, enterprises, schools and other units shall take reasonable measures such as prevention, acceptance of complaints, investigation and handling, etc., to prevent and stop sexual harassment by taking advantage of their authority and subordinate relationships.
Although Article 25 of the Law on the Protection of Rights and Interests of Women, which came into effect on January 1, 2023, enumerates some obligations, it is still on paper and has not yet been put into practice, and its operation and effectiveness still need more practical tests.
For example, Australian law stipulates that if sexual harassment occurs in the workplace, the employer needs to prove that it has taken all reasonable measures to avoid the sexual harassment, otherwise the employer will be liable for the sexual harassment of the employee.
The 2005 film "No Concessions" depicts a female mine worker in the United States who filed a class action lawsuit against a steel company for failing to address and protect female employees from sexual harassment. The film is based on a real-life 1988 case, Jenson v. Eveleth Taconite Co., the first sexual harassment class action lawsuit in the United States, which eventually settled with the plaintiffs in late 1998 and paid $3.5 million in compensation to 15 female workers.
The reversal of the burden of proof on employers needs to be paid attention to and paid attention to in the entire sexual harassment prevention and control system, which is conducive to forcing campuses and enterprises to establish a reasonable and effective sexual harassment complaint mechanism and form a gender-equal working environment.
In the allegations related to sexual harassment, many victims have said that they do not feel well "caught" in the face of trauma and injury, and still have to face a sense of powerlessness from the mechanism and a secondary injury from public opinion.
How to make victims of sexual harassment "catch" is a problem that every member of society has to face, and the reversal of the burden of proof can certainly alleviate the dilemma of sexual harassment victims, but if there is no other systemic support, it will only be difficult to speak alone.
Sexual harassment prevention and control is a large-scale social project that integrates sexual harassment complaint verification, gender equality education, social and cultural advocacy, and special sexual harassment regulation laws (campus sexual harassment and workplace sexual harassment), and it cannot be achieved overnight.
The premise of all these projects is that society must be able to see the plight and pain of victims of sexual harassment and admit the existence of sexual harassment.
There are still a large number of vacancies in the legal system for the prevention and treatment of sexual harassment in the mainland that need to be improved, and in the gray and irregular areas, individual victims still lack the support of social system resources, and can only choose to forbear, privately, or moral complaints.
The improvement of the legal system is only one step. In order to achieve a social consensus on the issue of sexual harassment and make victims feel better supported, it is necessary to popularize the concept of sexual consent, implement gender equality education, and establish support centers for victims of sexual crimes......
All of this requires sustained action and effort.
Photo / Weibo @ Luo Serious