Constitutional Court hears debate on decriminalization of adultery

03/31/2020 07:00 PM
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Deputy Justice Minister Tsai Pi-chung (蔡碧仲, center) at the Constitutional Court on Tuesday.
Deputy Justice Minister Tsai Pi-chung (蔡碧仲, center) at the Constitutional Court on Tuesday.

Taipei, March 31 (CNA) Grand justices heard arguments at the Constitutional Court on Tuesday on whether a criminal law that punishes adultery is unconstitutional, after several judges asked for an interpretation of the law.

Article 239 of Taiwan's Criminal Code stipulates that a married person who commits adultery and the other party to the adultery shall be sentenced to prison for less than one year, but there can be no trial without a complaint from the alleged victim.

Eighteen judges and a male who was convicted of adultery have asked the Constitutional Court in recent years to overturn Interpretation 554, which determined that Article 239 was constitutional.

The most recent one was a judge surnamed Chen (陳) from the Miaoli District Court who mainly hears cases related to "offenses against marriage," who felt Article 239 may violate the Constitution of the Republic of China (Taiwan).

The court finally agreed to hear the case and heard arguments Tuesday, some of which centered around Interpretation 554.

The interpretation, which was made in 2002, ruled that the freedom of sexual behavior is inseparably related to the personality of individuals, and every person is free to decide whether or not and with whom to have sexual affairs.

Such freedom is, however, legally protected only if it is not detrimental to the social order or public interest as provided in Article 22 of the Constitution, and therefore the freedom of sexual behavior is subject to the restriction put on it by marriage and the family system, the ruling said.

One of the judges arguing for decriminalization, Wu Chih-chiang (吳志強), said adultery is not the only factor that shakes a marriage and therefore there was no need to intervene with "national punishment."

He argued that Article 239 could lead to unfairness and inequality in administering punishment, forcing people to maintain an unwanted marriage.

Wu was referring to complaints by supporters of the decriminalization of adultery that under Article 239 the crime of adultery cannot be prosecuted without a complaint by the victim, and if one spouse withdraws charges against the other, the withdrawal does not apply to the outside party.

That has led in practice to women likely to be pressured by their husbands to drop the charges against them during the proceedings, yet the cases against the mistresses go ahead.

Judge Chang Yuan-sen (張淵森) argued that the purpose of criminalizing adultery was to protect the family and social morals and prevent people from suffering in a miserable marriage.

Yet while the law gives people the ability to get married and divorced freely, it cannot use criminal law to "threaten" people into acting faithfully in a marriage, he contended.

Many factors cause suffering in a marriage, including the relationship between the wife and her mother-in-law, child education problems, financial issues, and sexual relations, Chang said.

"If one person suffers in a marriage, it does not mean the other party has to be punished. Suffering should not be a reason for punishment in the Criminal Code," he said.

Chi Hui-jung (紀惠容), a former executive director of the Garden of Hope Foundation who attended the Constitutional Court as a friend of the court to present her opinions, called Article 239 a law that punishes women.

Although there are more men charged for adultery than women, in the end more women, most of them the mistresses in the cases, are convicted, she said.

At the same time, she argued, the crime of adultery uses the Criminal Code to deter people from having affairs, but in a society that now frowns on using corporal punishment to discipline children, it is inappropriate to use "threats" to keep marriages together.

Deputy Minister of Justice Tsai Pi-chung (蔡碧仲) argued, however, that the criminalization of adultery is aimed at safeguarding the marriage and family system.

To support her position, Tsai cited Interpretation No. 544, which says the root of the nation's marital system lies in the freedom of personality, with such social functions as the maintenance of the order of human relationships and gender equality, and the raising of children.

To insure an enduring and unimpaired system of marriage, the state may of course enact relevant rules to require a husband and wife to be mutually bound to each other by the duty of faithfulness, the interpretation says.

The freedoms of individuals should still be restricted by the need to maintain social order, Tsai argued, and therefore Article 239 is not unconstitutional.

(By Lin Chang-shun and Elizabeth Hsu)

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