Adultery as criminal offense ruled unconstitutional (update)

05/29/2020 08:27 PM
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Taipei, May 29 (CNA) Provisions in Taiwan's laws that treat adultery as a criminal offense have been ruled unconstitutional and declared invalid effective immediately, Constitutional Court Chief Justice Hsu Tzong-li (許宗力) announced Friday.

Hsu and the Constitutional Court determined that the laws that punish adultery infringe on the privacy of individuals and the right of people to make their own decisions, Judicial Yuan Secretary-General Lin Hui-huang (林輝煌) said following the announcement.

The adverse effects generated by treating adultery as a criminal offense have clearly exceeded its public benefit and violated the principle of proportionality in a narrow sense, Liu said.

The court's decision, Interpretation No. 791, was made after 15 grand justices heard arguments on the case and reviewed the provisions in the Criminal Code and the Code of Criminal Procedure that came under scrutiny.

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

In Interpretation 791, the court ruled that Article 239 of the Criminal Code was not consistent with Articles 22 and 23 of the Constitution that protect the freedom and rights of people that are not detrimental to social order or public welfare.

Article 23 stipulates that people's freedom and rights cannot be restricted by law "except by such as may be necessary to prevent infringement upon the freedoms of other persons, to avert an imminent crisis, to maintain social order or to advance public welfare."

The court believed that adultery was not detrimental to social order or public welfare.

The court also ruled that the provisions of Article 239 of the Code of Criminal Procedure violated the principle of equal protection in the Constitution.

The Code of Criminal Procedure provision says that in cases chargeable only upon complaint, withdrawing a complaint against one of several co-defenders has the same effect as withdrawing the complaint against all such co-offenders, except in the case of adultery.

In practice, that has meant that if a spouse withdraw a complaint against the other spouse, the third party involved could still be, and in many cases has been, prosecuted.

That violated Article 7 of the Constitution, which says "all citizens of the Republic of China, irrespective of sex, religion, race, class, or party affiliation, shall be equal before the law," the Constitutional Court said.

In Interpretation 791, the court declared void the laws that punish adultery as a criminal offense, effective from the release of the interpretation on Friday, and also overturned Interpretation 554.

Interpretation 554, 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, however, is legally protected only if it is not detrimental to the social order or public interest as provided in Article 22 of the Constitution, and the freedom of sexual behavior is subject to the restrictions put on it by marriage and the family system, it said at the time.

At the Friday's press briefing, Lin also said the Grand Justices felt that treating adultery as a criminal offense played a limited role in maintaining marriage relations or the system of marriage.

Treating adultery as a criminal offense not only limited the right of people to have sex with each other, it also infringed on the privacy of the individuals involved during the process of discovery and prosecution, Lin said.

The Grand Justices believed that state intervention in marriage relations could negatively impact those relations, even if criminally punishing adulterers is seen as a "punishment" on those betraying the loyalty of marriage, he said.

(By Lin Chang-shun and Elizabeth Hsu)

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