NGO-Proposed Amendments Position Paper | What to Do When Threatened with the Distribution of Intimate Images

In 2018, the South Korea Burning Sun (Nth Room) case was brought to light, shocking the world and serving as a wake-up call for governments everywhere to attach importance to digital sexual violence. In 2022, Mirror Media published an investigative report titled Purgatory of Youth: Network Hunting and Deception of Sexual Intimate Images Incident Book, exposing Taiwan's own version of the Nth Room case and further confirming that such incidents of rampant abuse are by no means restricted to specific regions. In our modern digital technological era, various issues surrounding the leakage of intimate sexual images and ensuring victims no longer have to live in constant panic urgently need to be resolved.

On March 10, 2022, the Executive Yuan passed draft amendments to the Criminal Code, the Act for Prevention of Sexual Exploitation of Children and Youths, the Crime Victim Rights Protection Act, and the Sexual Assault Crime Prevention Act (collectively known as the "Four-Act Joint Defense") to curb the frequent occurrence of digital sexual violence, protect victims' rights, and provide timely assistance.

The aforementioned Four-Act Joint Defense draft amendments entered their first caucus consultation on November 9, 2022, during which various agencies responded respectively to the opinions raised by civil society organizations. Civil society organizations have issued this position paper to specifically explain the various advocacy positions and reasons of NGOs, alleviate concerns raised by various agencies, and look forward to exchanges with the responsible agencies. Regarding the Four-Act Joint Defense draft amendments, NGOs expect various agencies to continue listening to civil opinions, take the protection of people's rights as the keynote, and make appropriate revisions and adjustments.

This position paper outlines the NGO-proposed legislative demands below section "I.", and details the NGO-proposed provisions, legislative grounds, and responses and explanations to differing opinions under section "II."

I. The Executive Yuan's Draft Four-Act Joint Defense Remains Inadequate

Drawing on frontline experience in contacting victims of digital sexual violence, women's organizations conducted a detailed review of the Four-Act Joint Defense draft amendments and found that the current provisions still have limitations concerning "penalties" and "remedies," which may fail to genuinely respond to social problems and the urgent needs of victims. The remaining issues in the Four-Act Joint Defense draft are as follows:

• (1) The Criminal Code chapter on offenses against sexual privacy and non-consensual intimate images lacks provisions penalizing the criminal pattern of "intimidation by threatening to distribute lawfully acquired intimate images"

  Intimate sexual images that are lawfully acquired can be "voluntarily captured by the victim" or "captured by mutual consent." According to statistics on digital sexual violence cases received by the Taipei Women's Rescue Foundation, nearly 60 percent of victims voluntarily provided intimate sexual images to the other party, only for those images to later become tools used by perpetrators for intimidation (Appendix 1, page 4).

  However, the Executive Yuan's draft amendments to the Criminal Code target only offenses such as "non-consensual or anti-will capture" and "non-consensual distribution" regarding intimate sexual images. Meanwhile, situations where victims "consent or voluntarily provide" images, only to be subsequently threatened with them (without actual distribution having taken place yet), can only be addressed by resorting to the general offenses of intimidation, extortion, or coercion. This creates a major regulatory loophole in the landscape of digital sexual violence crimes, which will likely fail to achieve the aforementioned legislative objectives.

  Although "intimidation by threatening to distribute intimate sexual images" shares similarities with the current Criminal Code offense of intimidation, given that the perpetrator clearly holds the "weakness" of the victim, the content of the perpetrator's intimidation has a very high possibility of realization from the very beginning. This subjects victims to immense fear and psychological pressure, and even reduces them to tools for the perpetrator. In practice, the content of these threats varies widely, frequently including demands to engage in sexual relations, capture more images, or even coerce assistance in other criminal acts. Failing to confront the specific nature of this offense, and assuming that subsequent offenses can be dealt with via heavier charges (such as compulsive sexual assault), amounts to an indifference toward victim protection.

  Furthermore, digital sexual violence has become an emerging and massively proliferating crime pattern in contemporary internet society. The malicious nature of these offenses is even diluted by unhealthy subcultures that "demand the sharing of images," making it imperative to explicitly legislate and penalize them.

  At the same time, the penalty for the general offense of intimidation is imprisonment for not more than two years. Aside from insufficient deterrent effect, Article 11-1 of the Communication Security and Surveillance Act stipulates that prosecutors may retrieve a perpetrator's communication records only when investigating offenses carrying a "maximum principal punishment of imprisonment for 3 years or more." Consequently, relying solely on current laws will impair investigative efficacy, failing to effectively investigate crimes and protect victims. Moreover, because current provisions on intimidation and related offenses cannot apply protection orders under the Crime Victim Rights Protection Act and supporting measures under the Sexual Assault Crime Prevention Act, victims receive inadequate protection.

• (2) The Crime Victim Rights Protection Act lacks sufficient protective force and fails to provide mechanisms for removal/takedown/prohibition of distribution/redistribution, which may restrict victims' willingness to seek judicial recourse

  The current draft amendments to the Crime Victim Rights Protection Act are insufficient in terms of the protective force afforded to victims.

  First, regarding protection orders in the draft amendments, they can only be issued upon a prosecutor's application or by the court ex officio. In other words, victims themselves cannot proactively petition the court to issue orders regarding matters concerning their own rights and interests, but can only do so by "urging" a prosecutor to apply.

  Second, there are inherent limitations in the content of the draft amendments to the Crime Victim Rights Protection Act. Because intimate sexual images spread rapidly once distributed, and the damage caused to a victim's personality rights and ordinary social life is ongoing, the protection orders that the current draft can mutatis mutandis apply are limited to measures such as "prohibiting the defendant from committing acts infringing upon the body or property of the crime victim and their family members" and "prohibiting the defendant from stalking the crime victim and their family members." There are no provisions ordering defendants to surrender intimate sexual images, ordering the removal of intimate sexual images published on internet platforms, or prohibiting their distribution or redistribution, which severely limits victim protection. If courts could order perpetrators to prohibit (re)distributing or to remove and take down intimate sexual images, it might reduce instances where victims—threatened with distribution or already suffering image distribution—prefer to endure in silence rather than seek external assistance.

  Third, even with Article 13 of the draft Sexual Assault Crime Prevention Act, when intimate sexual images circulate to overseas websites, our competent authorities are constrained by territoriality and find it difficult to demand that certain overseas websites take down the content. The only viable method is for the uploader to proactively remove the images. However, in the absence of relevant regulations in current law, expecting uploaders to remove images may prove to be a fruitless endeavor. Consequently, intimate sexual images will continue to be distributed and viewed on foreign websites—a problem that the current draft fails to regulate.

II. NGO-Proposed Recommended Provisions and Legislative Grounds

To address the inadequacies of the current "Four-Act Joint Defense" draft amendments, the Taipei Women's Rescue Foundation, the Garden of Hope Foundation, the Awakening Foundation, and the Taiwan Association for Safe Internet, leveraging their deep understanding of digital sexual violence incidents and case-handling experience, collaborated with Professor Lu Ying-chieh of National Chung Cheng University and the Judicial Reform Foundation (hereinafter referred to as NGOs) to jointly formulate the NGO-proposed recommended provisions as follows:

• (1) Addition of the "Offense of Intimidation by Threatening to Distribute Intimate Sexual Images" in Chapter 28-1 of the Criminal Code

  In addition to the recommended provisions added below, NGOs consider the legislative direction of adding this offense by inserting a new paragraph into Article 319-3 to be equally viable.

  NGO-Proposed Recommended Provisions

  Article 319-X of the Criminal Code A person who commits intimidation by distributing, broadcasting, or otherwise exhibiting another person's intimate sexual images to others, causing people to feel fearful and affecting their daily life or social activities, shall be sentenced to imprisonment for not less than six months and not more than three years, and may be concurrently fined not more than 30,000 NTD. A person who commits the offense in the preceding paragraph in order to compel another person to perform an act they have no obligation to perform or to obstruct another person from exercising their rights shall be sentenced to imprisonment for not less than six months and not more than five years. A person who commits the offense in the first paragraph in order to compel another person to deliver their own or a third party's property or to obtain property benefits shall be sentenced to imprisonment for not less than six months and not more than seven years, and may be concurrently fined not more than 50,000 NTD.

  Legislative Grounds (Also Responding to the Ministry of Justice's Opinions)

  In contemporary society, victims often originally capture intimate sexual images voluntarily; however, after perpetrators acquire or hold these intimate sexual images, they use the distribution, broadcasting, or other exhibition of these intimate sexual images as the content of intimidation to demand reconciliation, extort property, or even force sexual relations upon the victim, plunging victims into fear and property loss.

  Such circumstances have a far greater impact on victims than general offenses of intimidation, coercion, or extortion, leaving victims living in daily fear of having their intimate sexual images exposed to the public. Therefore, it is deemed necessary to establish special provisions. Furthermore, this offense serves as a special provision relative to the offenses of intimidation, coercion, or extortion; when the constitutive requirements of this offense are met, this offense should take precedence, and supporting measures applied mutatis mutandis under Article 7 of the Sexual Assault Crime Prevention Act should be simultaneously amended.

  Admittedly, the Ministry of Justice mentioned during the caucus consultation on November 9, 2022, that acts of "intimidation using intimate sexual images" can be handled through general offenses such as intimidation and extortion. However, do Criminal Code provisions enacted as far back as 1934 align with the new crime patterns under the current digital technology era as originally foreseen by legislators?

  1. Overlap of Protected Legal Interests Among Criminal Code Offenses Is Common

     In the Criminal Code, protecting the same legal interest across different provisions is commonplace, with varying constitutive requirements and legal consequences established based on the degree of unlawful content of each act. Observing the Ministry of Justice's current legislative proposal to add Articles 319-1 to 319-3 of the Criminal Code, these provisions inherently possess overlapping and concurrent relationships regarding protected legal interests with existing Criminal Code offenses. Therefore, even if the freedom legal interest infringed upon by "intimidation using intimate sexual images" is identical to that of the "offense of intimidation," this does not automatically exclude the grounds for such an addition.

     The intent of adding Chapter 28-1 in this legislative amendment is to impose heavier penalties on acts of digital sexual violence to achieve the effects of deterrence and enhanced prevention. According to statistics from the Taipei Women's Rescue Foundation (Appendix 1, page 4), nearly 60 percent of victims voluntarily permitted another party to acquire intimate sexual images, only for those images to later become tools used by perpetrators for threats. Thus, whether failing to incorporate this common offense into the provisions of this chapter can achieve legislative objectives and social expectations is truly questionable.

  2. Carrying Out Intimidation in Conjunction with Other Criminal Means May Serve as Grounds for Heavier Penalties

     Although some may argue that "intimidation endangering life," as the most severe type of behavior, is already regulated by offenses of intimidation endangering safety, utilizing intimate images as a means of intimidation should not exceed its regulatory scope, rendering special or heavier penalties unnecessary. However, looking at Article 346 of the Criminal Code on extortion, it similarly regulates intimidation acts while adopting "causing another person to feel terrorized and deliver property" as the basis for heavier penalties, and penalizes attempted offenses. Similarly, Articles 347 and 348-1 on kidnapping for ransom also use "placing another person under one's own sphere of control" as the method of crime to establish heavier penalties.

     Therefore, when intimidation is paired with different criminal means and objectives, the heightened unlawfulness resulting from its combination with other acts may indeed be considered to enact special legislation imposing heavier penalties.

  3. Using the "Distribution, Broadcasting, Delivery, or Public Exhibition of Intimate Sexual Images" as a Means of Intimidation Necessitates Special Penalization

     Using the "distribution, broadcasting, delivery, or public exhibition of intimate sexual images" as a means of intimidation inherently presumes that the perpetrator holds the victim's intimate sexual images. Given this fact and the convenience of technological transmission in contemporary society, the perpetrator's conveyance of harm possesses specific and easily realizable characteristics, such that the infringement faced by the victim is no longer within a controllable domain that the victim can guard against or monitor in daily life; rather, it is entirely controlled by the perpetrator and can be swiftly executed at any time. Moreover, once the perpetrator distributes the images, neither the perpetrator nor the victim can control the escalation of the damage, causing continuous, severe, and irreparable harm to the victim.

     Consequently, in practice, when facing the aforementioned offenses, victims often suffer extreme fear and psychological pressure, placing them in a vulnerable state susceptible to control, making them prone to yielding and cooperating with the perpetrator's subsequent serious crimes. According to statistics from the Taipei Women's Rescue Foundation (Appendix 1, page 4), the contents of these threats vary widely, with 6.09% aiming to coerce sexual relations; 12.17% aiming to demand "reconciliation"; and 5.76% aiming to capture more sexual images to continuously dominate the victim. This is also the reason why paragraphs 2 and 3 of the NGO proposal impose heavier penalties based on the perpetrator's demands or criminal objectives. If handled by adding paragraphs to Article 319-3, this need should likewise be taken into consideration.

  In summary, to prevent the common crime pattern in intimate image offenses of "intimidation by distributing lawfully acquired intimate sexual images" from being omitted in this legislative amendment, it is necessary to add provisions in Chapter 28-1 of the Criminal Code.

• (2) Addition of Matters to Be Ordered Complied with by Defendants under Article 35, Paragraph 5 of the Crime Victim Rights Protection Act

  To strengthen the effectiveness and immediacy of victims seeking protection, NGOs previously conceived the idea of adding civil protection orders to the Sexual Assault Crime Prevention Act. However, the current direction is to improve the system of criminal protection orders or protection orders within the Crime Victim Rights Protection Act.

  Executive Yuan Draft Provisions	NGO-Proposed Recommended Provisions
  Article 35 of the Crime Victim Rights Protection Act When a court grants a stay of detention to a defendant in a case involving an intentional criminal act resulting in death, severe injury, or infringement upon sexual autonomy, if it deems necessary upon balancing human rights protections and the public interest, the court may, ex officio or upon a prosecutor's application, set a reasonable period of not more than two years and order the defendant to comply with the following matters: Prohibiting acts endangering the body or property of the crime victim or their family members. Prohibiting acts of intimidation, harassment, contact, or stalking against the crime victim or their family members. Prohibiting unjustified approach within a specific distance of the residence, school, workplace, or other specific locations frequently frequented by the crime victim or their family members. Prohibiting other matters endangering the crime victim or their family members. The provisions of the preceding paragraph may be modified, extended, or revoked upon application or ex officio. Each extension period shall not exceed one year. A person who violates the matters to be complied with prescribed by the court pursuant to the first paragraph may be directly taken into custody. After the stay of detention, if the defendant violates any of the matters to be complied with prescribed by the court pursuant to the first paragraph, the court may order the re-execution of detention. Cases involving offenses under Chapter 28-1 of the Criminal Code shall mutatis mutandis apply the provisions of this chapter.	Article 35 of the Crime Victim Rights Protection Act When a court grants a stay of detention to a defendant in a case involving an intentional criminal act resulting in death, severe injury, or infringement upon sexual autonomy, if it deems necessary upon balancing human rights protections and the public interest, the court may, ex officio or upon a prosecutor's application, set a reasonable period of not more than two years and order the defendant to comply with the following matters: Prohibiting acts endangering the body or property of the crime victim or their family members. Prohibiting acts of intimidation, harassment, contact, or stalking against the crime victim or their family members. Prohibiting unjustified approach within a specific distance of the residence, school, workplace, or other specific locations frequently frequented by the crime victim or their family members. Prohibiting other matters endangering the crime victim or their family members. The provisions of the preceding paragraph may be modified, extended, or revoked upon application or ex officio. Each extension period shall not exceed one year. A person who violates the matters to be complied with prescribed by the court pursuant to the first paragraph may be directly taken into custody. After the stay of detention, if the defendant violates any of the matters to be complied with prescribed by the court pursuant to the first paragraph, the court may order the re-execution of detention. For cases involving offenses under Chapter 28-1 of the Criminal Code, the court, upon balancing human rights protections and the public interest and deeming it necessary, may ex officio, or upon the application of a prosecutor or the victim, set a reasonable period of not more than two years and order the defendant to comply with or undertake the following matters: The matters set forth in Paragraph 1, Subparagraphs 1 to 3. Prohibiting the reproduction, distribution, broadcasting, delivery, public exhibition, or otherwise exhibiting of the victim's sexual images to others. Delivering the victim's sexual images in their possession to the victim. Delivering the victim's sexual images in their possession to police or prosecutorial authorities. Removing or applying to internet platform providers, internet application service providers, and telecommunications enterprises to delete the victim's sexual images leaked by the opposing party. Regarding procedures such as the application for and issuance of protection orders, the provisions of this chapter shall apply mutatis mutandis.
  Article 36 of the Crime Victim Rights Protection Act: The provisions of the preceding article shall apply mutatis mutandis when a prosecutor directly orders bail, custody in the charge of a designated person, or restriction of residence pursuant to the proviso of Article 93, Paragraph 3 or Article 228, Paragraph 4 of the Code of Criminal Procedure, or when a court or judge directly orders bail, custody in the charge of a designated person, or restriction of residence pursuant to Article 101-2 of the same Code.	None.
  Article 41 of the Crime Victim Rights Protection Act: A person who without justifiable reason violates the matters to be complied with prescribed by a court, judge, or prosecutor pursuant to Article 35 or 36 under Article 35, Paragraph 1, Subparagraphs 1 to 3 shall be sentenced to imprisonment for not more than three years, detention, or a fine of not more than 300,000 NTD, or both.	Article 41 of the Crime Victim Rights Protection Act: A person who without justifiable reason violates the matters to be complied with prescribed by a court, judge, or prosecutor pursuant to Article 35 or 36 under Article 35, Paragraph 1, Subparagraphs 1 to 3, or fails to undertake the matters ordered pursuant to Paragraph 5, Subparagraphs 1 to 5, shall be sentenced to imprisonment for not more than three years, detention, or a fine of not more than 300,000 NTD, or both.

  Legislative Grounds (Also Responding to the Ministry of Justice's Opinions)

  1. The Content of Protection Orders Should Be Clarified

     Regarding "protection orders" under Article 35 of the Executive Yuan's draft Crime Victim Rights Protection Act, Paragraph 5 applies mutatis mutandis to cases involving offenses under Chapter 28-1 of the Criminal Code. However, looking at the content of protection orders, although there is a catch-all provision in "IV. Prohibiting other matters endangering the crime victim or their family members" that can encompass prohibitions on intimate sexual images or orders requiring defendants to perform certain acts, Article 41's criminal liability for violating protection orders fails to include circumstances of violating the aforementioned catch-all provision, thereby creating a problem of inadequate protection.

     In response, the NGO proposal suggests that relevant orders protecting victims of digital sexual violence—such as provisions prohibiting "reproduction, distribution, broadcasting, delivery, public exhibition, or otherwise exhibiting the victim's sexual images"—need to be specified. If a defendant distributes another person's intimate sexual images to overseas websites making regulation difficult, to avoid actual execution lacking reach, defendants should also be ordered under appropriate circumstances to remove them themselves.

  2. To Provide Victims with Prompt and Effective Protection, Victims Should Be Able to Proactively Apply for Protection Orders under Appropriate Circumstances

     According to Article 35 of the official draft Crime Victim Rights Protection Act, protection orders are initiated by the court ex officio or upon a prosecutor's application, and cannot be applied for by victims directly to the court or prosecutor. As for criminal compulsory measures undertaken by police and prosecutors at the first instance, their purpose is to investigate crimes; while initiated by agencies in principle, under appropriate limitations, it is not precluded for victims to apply to prosecutors or courts to prompt them to exert immediate effects. For instance, Article 219-1 of the Code of Criminal Procedure stipulates that when evidence is in danger of being destroyed, forged, altered, concealed, or difficult to use, an accuser may apply to a prosecutor during the investigation for necessary preservation dispositions such as search and seizure. If the prosecutor rejects the aforesaid application or fails to make preservation dispositions within the prescribed period, the applicant may directly apply to the competent court for evidence preservation.

     Regarding criminal protection orders, their primary purpose is the forward-looking protection of victims' safety and rights; there appears to be no natural reason to exclude victims from the right to apply under appropriate circumstances, and the intent of Article 219-1 of the Code of Criminal Procedure should be referenced to properly consider victims' immediate practical needs. To take a step back, at least those who have actual needs but fail to be promptly initiated after reporting to the police and transferring to the prosecutors' office for investigation should be granted a fallback right of application.

In summary, the NGO-proposed recommended provisions suggest that for cases involving offenses under Chapter 28-1 of the Criminal Code, the content and application procedures of protection orders should be appropriately adjusted to facilitate the protection of victims' safety.

Related Issues Requiring Clarification

1. How can the efficacy of preventing the distribution of intimate sexual images at the first instance be enhanced? How should the procedures and efficiency from when police agencies receive a report to applying for compulsory measures from a prosecutor be refined?
2. In cases involving intimate sexual images, how should prosecutors handle applications received from individuals pursuant to Article 219-1 of the Code of Criminal Procedure? Should opinions from grassroots prosecutors be gathered to study and formulate guidelines?

Advocacy Organizations

Taipei Women's Rescue Foundation
Judicial Reform Foundation
Garden of Hope Foundation
Taiwan Association for Safe Future (Taiwan Digital Feminist Alliance)
Taiwan Association for Safe Internet

Bill Advisor

Lu Ying-chieh, Professor, Department of Law, National Chung Cheng University

Spokesperson

Tu Ying-chiu, Executive Director, Taipei Women's Rescue Foundation
Phone: 02-2555-8595
Email: tuyingchiu@twrf.org.tw

Special Thanks

Li Ling-wei, Attorney, Jing Kuan Law Firm

Staff

Li Ming-ju, Deputy Executive Director, Judicial Reform Foundation
Hsiao I-min, Office Director, Judicial Reform Foundation
Lu Cheng-yen, Director of Legal Policy Department, Judicial Reform Foundation
Chen You-chia, Legal Researcher, Judicial Reform Foundation