Adultery laws do not save marriages

By Lin Shih-fang and Lin Shiou-yi 林實芳,林秀怡  / 

Sat, May 11, 2013 - Page 8

How you ask a question often influences what the answer will be. The Ministry of Justice has released the results of an opinion poll that showed that more than 80 percent of respondents oppose removing adultery from the Criminal Code. This is a far cry from the results of similar polls on the subject carried out by media outlets and academic institutions, and the key to these differences lies in how the questions are phrased.

Throughout the questionnaire, the ministry refuses to mention the negative practical consequences to women of keeping adultery in the Criminal Code. It also fails to mention the reality that doing so will not save, but rather speed up the dissolution of marriages. Instead, the questionnaire ignores social context, plays word games and asks obviously leading questions.

For example, the questionnaire mixes up the concepts of removing adultery from the Criminal Code with removing penalties for adultery, intentionally blurring Criminal Code, Civil Code and moral concepts, and using specious terminology and phrases without explaining in detail that “abolishing adultery” means to remove it from the Criminal Code; it would still be possible to demand compensation and sue for divorce under the Civil Code.

Removing adultery from the Criminal Code means to stop issuing penalties for adultery based on the Criminal Code; it is not a suggestion that adultery should have no consequences, either morally or under the Civil Code. Given the biased language of the ministry’s questionnaire, it is not surprising that respondents overwhelmingly felt that decriminalization implied allowing or even endorsing adultery.

Such a leadingly framed poll is unhelpful and even directly harmful to the deliberation of the issue by society.

The Awakening Foundation has held forums in Taipei, Greater Kaohsiung, Greater Taichung and in Pingtung, Yunlin and Hualien counties, where it found that many people oppose removing adultery from the Criminal Code because they have not had an opportunity to give more in-depth consideration to the complex power relationships and gender equality issues that often lie behind adultery.

After detailed explanation and discussion, many people who originally questioned the measure to remove adulterty from the Criminal Code changed their minds and agreed to sign a petition proposed by the foundation. Many people at the forums shared their own experiences and told of how they had been cheated by private investigators. The sums they had lost and the manner in which they had been cheated made many of the participants curse private investigators for making money off of other people’s misfortune.

The questionnaires completed during the meetings showed that more than 80 percent of respondents supported striking adultery from the Criminal Code, and they urged the foundation to push for reform of the law as soon as possible.

The ministry’s questionnaire stressed the deterrent posed by the offense of adultery, saying that keeping adultery in the Criminal Code deters people from having extramarital affairs and that it was the only thing that maintained social moral standards. Not only is this claim completely detached from the experiences of the general public, it also runs counter to the views of many legal experts.

The campaign started by the Awakening Foundation to remove adultery from the Criminal Code has been supported by many legal academics. Experts on the Criminal Code, including Huang Jung-chien (黃榮堅) and Hsu Yu-hsiu (許玉秀), both law professors at National Taiwan University, point out that the existence of adultery in the Criminal Code does nothing to help save marriages.

When charging someone with adultery under the Criminal Code, details of the adultery must be provided that satisfy Criminal Code evidence requirements, or a CD or DVD recording of the adultery must be provided. This only serves to further fuel animosity and distrust.

Private investigators charge high fees and then take advantage of the Criminal Code to extort money from the other party, without mentioning that their client could be charged with violating privacy laws, which can result in up to three years’ imprisonment, a harsher punishment than the maximum one year imprisonment for adultery.

When addressing the issue of decriminalizing adultery, the ministry can no longer avoid the issue by saying that it is neutral. If the Cabinet wants to use this one opinion poll to endorse the government’s position and ignore the fact that the offense of adultery has had practical negative consequences for women and for the institution of marriage, it will only serve to once again show that the sincerity of this Cabinet, which Premier Jiang Yi-huah (江宜樺) calls a “communicative Cabinet,” continues to plummet to new depths.

The ministry must stop playing devil’s advocate, pretending to be neutral while using underhand means to mislead the public. Instead, it should provide information to let the public deliberate the issue and take into consideration the claims from legal academic circles, human rights and women’s organizations that designating adultery as an offense creates gender inequality and will not guarantee the continuation of a marriage.

It should give serious thought to striking Article 239 and the offense of adultery from the Criminal Code.

Lin Shih-fang is secretary-general of the Awakening Foundation and a lawyer. Lin Shiou-yi is director of the development division at the Awakening Foundation.

Translated by Perry Svensson