從美英紐德荷之性侵者刑後強制治療看臺灣之困境與出路

The Dilemma and Solution of Compulsory Commitment of Sex Offender in Taiwan from the Perspective of America, U.K., New Zealand, Germany, and Netherlands

我國性侵者刑後強制治療的規定被兩法官因無限期之爭議而聲請釋憲，以致部分高危險性侵者在監獄或社區治療無效後只能釋放。本文的目的在探索先進國家的作法以作為國內參考。作者在探索美英紐德荷5國的政策之後，發現有民事收容與預防收容（各由民／刑事庭裁定）兩種處理高危險性侵者的強制收容模式，雖然都有人權上的爭議，但美國的民事監護已由大法官會議在1997年確認其屬於治療而非處罰且由民事庭裁定，故合憲而落幕。德國的預防收容在2004年被歐洲人權法院因沒期限而判定違反歐洲人權公約後，2011年改為最多10年而每年第9個月刑事庭審判一次，判定可提早結束或再繼續10年。筆者提出可參考美或德二擇一之修法，並建議法院應諮詢專家意見，以衡平性侵者與社會大眾的人權。

Taiwan passed compulsory commitment of sex offender law in 2005 and 2011. However, 2 judges considered it is unconstitutional and call for constitutional review. The purpose of this article is to explore how other developed countries deal with this difficulty. After comparing the related programs in America, U.K., New Zealand, Germany, and Netherlands, it was found that there were two systems among these countries. They are civil commitment and preventive commitment. Even though both had human right dilemma, the problem of civil commitment had been settled by the U.S. Supreme Court in 1997. The preventive commitment in Germany was viewed as violation to the European Convention on Human Rights and Fundamental Freedoms (“ECHR”) in 2009 and set a ten-year maximum and reviewed by court every 9 month of a year in 2011. But Netherland and New Zealand continued the preventive commitment without limitation. In the end, the author suggested that civil commitment is a better way in Taiwan. Based on that, the compulsory commitment should be decided by civil court, and it is better to include the reevaluation by expert to balance the human right between the offenders and community people.