Failing to Achieve the Goal: A Feminist Perspective on Why Rape Law Reform in Taiwan Has Been Unsuccesful

It has been more than ten years since feminists and legal scholars drove the first wave of rape law reform in Taiwan. Reform in the 1990s included the passage of the
Anti-Rape Act and significant amendments to the Taiwanese Criminal Code that changed the definition of rape. This Article uses empirical data and case law analysis to show that the reform has not yet reached its goals. Two factors have led to its failure. First, the legal framework is poorly designed and does not adequately protect sexual
autonomy. Second, the culture of rape trials in the Taiwanese courtroom is conservative and patriarchic. The requirement of utmost resistance no longer exists in law but is still alive in judges' holdings. In light of feminist legal theories and rape law reform in the
United States, this Article argues that rape is a crime against personal sexual autonomy as well as a crime against women as a group. A new reform is proposed to focus on the protection of sexual autonomy and to take into account the unequal power between perpetrator and victim. By shifting from the traditional focus on the "physical compulsion model" toward the "affirmative consent model" and recognizing unequal
power in the sexual relationship in the substantive criminal code, the new law would ensure women's sexual autonomy and reduce judicial bias and stereotypes in rape trials.