• BY Wu Ching-chin 吳景欽

The New Taipei City District Court on Aug. 16 heard a case of a mother accused of suffocating her six-year-old child. A collegiate bench of three professional judges and six citizen judges found the woman guilty and sentenced her to 16 years and five months in prison.

While the court rejected the defense’s plea for an exemption or reduction of the woman’s sentence, the court’s finding that the defendant was able to bear full responsibility for her actions leaves room for further discussion.

If the victim of an intentional homicide is a child or youth younger than 18, Article 112, Paragraph 1 of the Protection of Children and Youths Welfare and Rights Act (兒童及少年福利與權益保障法) stipulates that the sentence should be increased by half, thereby increasing the statutory penalty for homicide to 15 to 20 years in prison, life imprisonment or the death penalty.

Although the defendant attempted to kill herself and left a suicide note confessing her guilt, the crime in this case was not “an offense not yet discovered,” which under Article 62 of the Criminal Code allows for a reduction of a sentence for offenders who turn themselves in.

The key to determining whether a sentence can be reduced or exempted is whether the perpetrator was fully capable of bearing responsibility for the crime at the time it occurred.

Under Article 19 of the Criminal Code, if a person, at the time of the act, has a mental disorder or disability that makes them unable to recognize the illegality of their actions or control their own behavior, they are considered to be incapable of bearing responsibility and therefore would not be punished. Similarly, if their ability to recognize the illegality of their actions or control their own behavior is impaired, they are considered to have a limited ability to bear responsibility, in which case their punishment may be reduced.

Since judges are not experts in psychiatry, they should appoint a mental health expert to determine the presence or absence of any mental disorder. As to whether the accused is able to recognize the illegality of their actions and control their behavior, or whether their ability to do so is impaired, that involves an assessment of the law and should therefore be judged by members of the judiciary.

This division of responsibility appears to be a matter of mutual assistance, but in practice it tends to create a state of confusion. Now that citizen judges can participate in some trials, it is not certain whether this innovation can create a clearer distinction between the rights and responsibilities of psychiatric experts on the one hand and judicial personnel on the other.

In the case of the mother, the defendant had depression, but whether that affected her ability to recognize the illegality of her actions or control her behavior is an important point of contention. The problem is that, faced with such difficult legal jargon, and with interpretations of the law being the exclusive province of the three professional judges, it is questionable whether the citizen judges can have full autonomy in their rulings.

A second problem is that psychiatric assessments cannot be as precise as DNA testing and must involve some degree of subjectivity. However, to reduce the burden on citizen judges, and given that defendants do not have the right to request a psychiatric assessment of themselves, citizen judges have to rely on a single assessment with no other for comparison, which puts them in a quandary with regard to specialist understanding.

Even if the assessor testifies in court, if the citizen judges keep asking questions, it might detract from their role as an impartial third party, in which case they would again need to seek assistance from the judges. It will be interesting to see whether this will enable citizen judges to adjudicate independently.

Wu Ching-chin is a professor in Aletheia University’s Department of Law and director of its criminal law research center.

Translated by Julian Clegg