Constitutional court to hear debate on decriminalization of adultery

03/26/2020 08:47 PM
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Taipei, March 26 (CNA) Taiwan's constitutional court will hear arguments March 31 on whether an article in the Criminal Code that punishes adultery is unconstitutional, after receiving requests from 14 judges and a defendant in an adultery case to do so.

Article 239 of the Criminal Code stipulates that a married person who commits adultery shall be sentenced to prison for less than one year, with the other party to the adultery subject to the same punishment, though there can be no trial without a complaint from the alleged victim.

According to one of the judges who applied for a constitutional interpretation, the article could be at odds with the Constitution of the Republic of China (Taiwan) and infringes on people's rights, including an individual's right to privacy and bodily autonomy.

Women's groups in Taiwan have also voiced their support for the decriminalization of adultery, as they believe the article fails in its stated purpose of keeping marriages intact.

"During the court proceedings, people's intimate acts need to be laid bare in court, which destroys the last piece of emotion and trust between a couple," said Chuang Chiao-ju (莊喬汝), chairperson of the women's rights group Awakening Foundation, at a Thursday press conference.

This leads to a breakdown in communication, which could have led to the couple deciding to work on their marriage or an uncontested divorce, Chuang said.

The article has also disproportionately punished women, said lawyer Lin Shih-fang (林實芳), another member of the Awakening Foundation.

Men and women are sued for adultery on a ratio of 111 to 100, Lin said, but the ratio of men to women who end up convicted is 81.3 to 100.

This indicates that women are likely pressured by their husbands to drop charges against them during the proceedings, yet the charges against the mistresses go ahead, Lin said.

In most legal cases, if a plaintiff wishes to drop charges against one party in a lawsuit, the charges for the remaining parties are also dropped, though that is not true for adultery cases.

In this situation, the complainant can choose to drop charges on their spouse but still sue the other party, though they cannot decide to drop charges on the other party and only sue their spouse.

This particular rule has another inadvertent consequence, said Humanistic Education Foundation Director Feng Chiao-lan (馮喬蘭), which is that it is often used to threaten victims of rape.

Feng gave the example of a case in which a teacher allegedly raped a student, but the student didn't press charges due to the fear of being sued for adultery.

In these instances, the adultery article becomes a protective shield for rapists, Feng said.

Feng was likely referring to the high profile case of Lin Yi-han (林奕含), a budding writer who committed suicide a few months after the publication of her first novel, which was about a 13-year old girl who was raped by her teacher.

After her death, her parents released a statement saying that the story was actually Lin's own experience, and alleging that she was raped by a cram school teacher when she was in high school.

The reason why the family chose not to press charges was due to the fear of Lin being countersued for adultery, they said.

According to two polls conducted by the Ministry of Justice (MOJ) in 2013, around 80 percent of Taiwanese are opposed to decriminalizing adultery, while a poll conducted in 2017 by the Taiwanese Public Opinion Foundation found that 69 percent of Taiwanese are opposed.

(By Lin Chang-shun and Chiang Yi-ching)

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