| 摘要: | 摘要
本研究以最高行政法院107年度判字第445號判決書內容所提及校園性侵害事件為中心，透過法釋義學、個案研究方法，以性別平等教育法、學生輔導法為評析依據，探討行政程序是否正當，是否符合學生輔導專業倫理規範。
壹、研究結論
一、 系爭學校心理系成立工作小組，同時對被害人進行輔導與調查工作，除其組織未符合性別平等教育法相關規範外，且在學生輔導專業倫理角度上，並未站在被害人立場，考量其最佳法律利益、輔導人員與被害人之多重關係可能造成其角色混淆與傷害、避免對被害人重複詢問造成二度傷害。
二、 系爭學校性別教育平等委員會調查小組，當獲得本案校園性侵害事件新證據後，未另組調查小組，重新展開調查，未符合性別平等教育法第32、33條規範，違背正當法律程序。
三、 系爭學校未於24小時進行法定通報，且誤報為性騷擾事件，未符合性別平等教育法第21條規範。
四、 系爭學校未直接聯繫到被害人，告知其主張權益及救濟途徑，其中包含申請學校性性別教育平等委員會調查程序、提供專業心理諮商輔導、法律諮詢等相關權益，未符合性別平等教育法24條規範。
五、 系爭學校人員第一時間知悉本案校園性侵害事件發生後，未主動向學校性性別教育平等委員會檢舉申請調查，未符合性別平等教育法第28條規範。
六、 系爭學校未依據性別教育平等委員調查小組建議，提供加害人8小時性別平等教育與諮商輔導，未符合性別平等教育法第25條規範。
七、 系爭學校心理系教師協助被害人過程中，其不當言語與行為造成被害人二次傷害，未考量教師有輔導學生培養健全人格、學生「免受傷害權」之學生輔導專業倫理規範。
八、 系爭學校心理系教師不斷透過網路媒體造成被害人二次傷害，未考量教師有輔導學生培養健全人格，被害人有「學生隱私權」、「免受傷害權」之學生輔導專業倫理規範。
九、 系爭學校心理系召開師生討論會，造成被害人恐懼與傷害，未考量「學生隱私權」、「免受傷害權」之學生專業輔導倫理規範。
貳、研究建議
一、 各級學校應重視性別平等教育、處置校園性侵害事件之組織適法性及行政正當性，打造友善性別平等校園環境。
二、 各級主管機關及學校應監督學校輔導人員，其協助性侵害被害人是否具備足夠專業能力與倫理概念，能妥善評估被害人及相關當事人之心理創傷，協助被害人復原過程中能遵守保密原則、免受傷害等專業倫理規範，避免協助被害人過程中造成其二次傷害。
三、 教育部與各級學校性別平等委員會調查校園性侵害事件，應仿效現行政府跨領域團隊合作方案，性別平等委員會調查小組應聘請協助被害人之警察、社工、醫師等專業人員為調查小組成員共同偵辦，實質達到減少對被害人重複詢問目的。
四、 校園性侵害事件被害人應具備國家賠償與民事賠償意識，若學校協助被害人處置上有權益受損或二次傷害情況發生，其被害人應透過法律途徑增取國家或民事賠償。
Abstract
This study using the Doctrinal Study of Law and Case Study as research methods, investigates the due process of college campus sexual abuse case from the perspectives of the Gender Equality Education Act and Student Guidance and Counseling Ethics, derived from the Supreme Administrative Court's Judgment No. 445 in 2018.
I. The research findings are as follows:
1、 On the Department of Psychology, which establish an informal working group for investigation and provide guidance for the victims, we find the working group does not meet the relevant regulations of the Gender Equality Education Act, and from the perspective view of Student Guidance and Counseling Ethics, they did not stand by the victim’s side to consider their best legal interest. We believe the multiple relationships between the victims and the teachers may have caused confusion and harm. As such, this prior process should be avoided in the future including repeatedly inquire the victims to prevent and minimize secondary damage.
2、 Research to the investigation team of the Gender Education Equality Committee finds that after they obtained new evidence of the campus sexual assault incident, they did not set up another investigation team to re-investigate. This does not meet the requirements of Articles 32 and 33 of the Gender Equality Education Law. Therefore, this is not consistent with legal standards and current laws.
3、 Reviewing the school’s conduction, we find that they did not follow the law to notify the higher authorities within 24 hours and misreported the raping event as only a sexual harassment incident. These findings indicate they did not meet their legal requirements of Article 21 of the Gender Equality Education Act.
4、 Notably the school did not directly contact the victim to inform them of their rights and remedies including the right to submit their case to the school’s sex education equality committee investigation procedure, which would have provided professional psychological counseling, legal counseling and other related rights. All of this shows they did not meet Article 24 of the Gender Equality Education Act.
5、 A review of the school’s staff finds that when they were made aware that a sexual assault incident occurred at the school, they did not take the initiative to first report to the school’s sex education equality committee report. That means they did not meet the requirements of Article 28 of the Gender Equality Education Law.
6、 Additional research finds that the school did not follow the recommendations of the Gender Equality Commissioner's Investigation Team to provide 8-hours of gender equality education and psychological counseling for the perpetrators. This means they did not meet the requirements of Article 25 of the Gender Equality Education Act.
7、 Reviewing the conduct of teachers within the Department of Psychology finds during the process of assisting the victim, teachers showed inappropriate speech and behavior causing secondary damage to the victim. We believe those teachers did not display prudent profession Student Guidance and Counseling Ethics, which would focus on conducting effective guidance to help students develop a healthy personality and protect them from additional harm.
8、 We also note the teachers at the school's psychology department brazenly talked about the rape event publicly even arguing with the victims on internet online forums and social media causing serious secondary damage. The teachers truly ignored and failed to live up to their obligations to protect students left in their charge. As such, they seriously ignored the victims’ “privacy rights” and failed to follow the core principle of Student Guidance and Counseling Ethics—do not harm.
9、 When the Psychology Department held a seminar for teachers and students, which caused additional fear and injury to the victims. The department truly ignore the victims’ “privacy rights” and “rights of free from harm”, that is not in consistent with professional standards and the core principle of Student Guidance and Counseling Ethics.
II. The Suggestions are as follows:
1、 Schools at all levels should pay attention to gender equality education. When dealing with campus sexual assault incidents, we should pay attention to organizational legality and administrative legitimacy to create a friendly gender-equal campus environment.
2、 Competent authorities and schools at all levels should supervise school counsellors. When assisting victims of sexual assault, they should have enough professional competence and use sound ethical concepts to properly assess the psychological trauma of victims and related parties. During the whole process of assisting victims in recover, they should strictly follow professional ethics such as confidentiality and protection from injury to avoid secondary damage caused by assisting the victim.
3、 It is recommended that the Ministry of Education and the Gender Equality Committee through all levels within the schools should follow the government's current cross-disciplinary teamwork program when investigating campus sexual assaults. The investigation team of the Gender Equality Commission should employ professionals such as police, social workers, and physicians who can assist the victims as investigative team members jointly investigate the incident to substantially reduce repeatedly questioning victims.
4、 It is suggested that victims of school sexual assault should be provided with accurate information regarding their rights to seek both state and civil compensation through gender educational programs. If the school assists the victim inappropriately then the situation may develop in which the victim's rights are damaged and/or secondary damage occurs. The victim should seek state compensation or civil compensation through all prudent legal channels. |
