| 摘要: | 性侵害犯罪向來皆是各國政府所面臨相當棘手之難題，尤因近年來透過新聞媒體及社群網站大量報導，使得性侵害議題迅速浮上檯面，成為社會大眾所關注之焦點。
然而，性侵害加害者於服刑期滿後終須回歸社會，因此對其刑後治療及管控再犯等處遇，即成為刑事政策上相當重要之課題。根據現行刑法規範，犯罪行為之處罰大致上可分為刑罰與保安處分兩種類型，前者主要係為懲罰犯罪行為，使行為人感到身心痛苦為目的；而後者則係以協助犯罪行為人再社會化，並透過相關處遇措施，藉以降低犯罪行為人對社會之危害程度，達到防衛社會安全之目的。然根據我國刑法第91條之1規定，性侵害加害者之刑後強制治療，為拘束人身自由之保安處分，依法應受罪刑法定原則之拘束；另關於其處分期間係以「再犯危險顯著降低為止」，形成不定期保安處分之情形，恐有違明確性原則之虞。
除刑法刑後強制治療處遇外，我國依特別法另設有如身心治療輔導、登記報到查訪及電子監控設備等社區處遇措施，其內容雖多參考國外制度，然因考量各國文化背景、思想觀念與風俗民情等差異，故立法者於引進各該制度時曾為部分修正，惟亦同時致生些許問題及疑義。此外，因我國對於性侵害相關法制之發展較歐美各國晚，因此不論係於性犯罪之成因、特徵、性犯罪防治或刑後處遇制度之發展上，皆具相當大的進步空間。
是以，希望藉由本研究，一方面能夠重新思考現行制度對性侵害加害者之處遇意義，另一方面，冀能透過本文所提出之反思，作為未來處遇修正之參考。
Sexual assault crime has always been a difficult problem for governments. Especially in recent years, the issue of sexual assault has gotten massive media coverage, which makes it quickly become the focus of public attention.
However, the sex offenders will eventually return to society after execution of imprisonment, so the successive treatment and the effective intervention of preventing repeat offenders have become fairly important issues in criminal policy. According to the current criminal law, sentences for sex offenders include both punishment and rehabilitative measure. The main purpose of the former is to punish the offenders of crimes, which makes them suffer from great pain and affliction physically and mentally; the latter is based on assisting the offenders in re-socialization, and reducing the social harmfulness by taking related measures, for providing safe social environment. According to the Article 91-1 of criminal law of Taiwan, the mandatory treatment after execution of imprisonment is the rehabilitative measure which puts restrictions on personal freedom. As a result, it should be abided by principle of a legally prescribed punishment for a specified crime. On the other hand, the punishment period of the provision is regulated as “till the risk comes significantly reduced“, leading situation of irregular rehabilitative measure, which may violate the principle of legal certainty.
In addition to the mandatory treatments after execution of imprisonment in criminal law, there are other community measures, such as psychosomatic treatment, registration and visitation, and electronic monitor. Although most of the contents were referenced from foreign countries, legislature made several revisions due to the cultural differences. However, these revisions had also occurred some problems and disputes. Besides, the related law of sexual assault in our country developed later than Europe and America. We still have considerable room to improve the comprehension of the causes, the features, and the preventions of sexual crime, as well as the system of the measures after execution of imprisonment.
Therefore, we can reconsider the meaning of the existing law for sex offenders through this study; on the other hand, I expect it would serve as a valuable reference for any future revisions that might be made to the relevant laws. |
