Description

In this presentation, I critically examine the intriguing criminalization of religious fraudulent sex in Taiwan and make three contributions. First, I introduce the relevant Taiwanese forcible-sex provision in the comparative context of the equivalent in English criminal law and the Indian Penal Code (i.e., rape), with particular focus on whether fraud would constitute forcible-sex/rape. Second, I engage in a detailed doctrinal analysis of recent Taiwanese cases and identify that there is a de facto falsity requirement in the judicial application of the forciblesex provision to religious fraudulent sex, even if such a requirement is not ostensibly required under the statutory language, academic theory, or the courts’ articulated jurisprudence. More disturbingly, I find that that the courts’ assessment of the falsity is in practice underpinned by a conceptualization of legitimate religion that categorically rejects any purported supernatural/religious claims that stipulate sex acts as integral to the ritual or otherwise necessary for divine intervention. Third, I argue that this approach is an unconstitutional violation of religious freedom, and propose an alternative approach for criminalization that is not only more likely to survive constitutional challenge, but is also more effective in deterring criminals and informing victims.

About The Speaker

Jianlin grew up in Singapore and Taiwan. He obtained his LLB from National University of Singapore, and his LLM and JSD from the University of Chicago. He is qualified to practice in Singapore and New York. He joined the Melbourne Law School in 2017 after starting his academic career at the University of Hong Kong in 2011. Bilingual in English and Chinese, Jianlin publishes widely, with a monograph from Cambridge University Press, and in law journals such as Columbia Journal of Asian Law, Law & Social Inquiry, 北大法律评论, among many others. His publications’ seemingly diverse subject matters (e.g. corporate law, securities regulations, insurance law, tax law, property law, natural resources, criminal law, administrative law, law & religion) is united by his research agenda of drawing on a combination of comparative perspectives and economic analysis to critically examine the unarticulated jurisprudential assumptions inherent in many areas of legal discourse.