Family and marriage values have been hot topics of discussion in Taiwan recently. Aside from the proposal to amend the law to recognize diverse families, the question of whether to decriminalize adultery has also sparked debate.
Taiwan’s legislature in 2009 ratified two key UN human-rights covenants — the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights.
A group of international experts came to Taiwan in February to review the country’s initial report on its implementation of them. One of the conclusions of the review is that the classification of adultery as a criminal offense is a violation of human rights.
The Ministry of Justice held a public hearing on Nov. 28 on the question of whether adultery should be decriminalized, and various arguments — both in favor and against — were put forward.
Unfortunately some of the ideas at the meeting were reminiscent of the debates over the decriminalization of adultery that took place when the Criminal Code was being drawn up in the 1940s. The sense of being in another time and place was really quite eerie.
Some people see the decriminalization of adultery as being part of the sexual liberation movement. They think that those who advocate decriminalizing adultery are the culprits behind the breakdown of families and marriages.
There are others who venture to equate victims of adultery with victims of sexual abuse. These people think that the state has a duty to defend a married person’s spouse against the outrageous behavior of a third party — the married person’s lover.
There are even those who say that the existing penalty under the Criminal Code is not strong enough, and that the third party in such an affair should not be allowed to get married, enjoy property rights or have parental rights over children born out of wedlock.
Some officials whose job it is to enforce the nation’s laws say that women who enter into marriage should be immaculate and obey their husbands, and that people who have broken the commandment of fidelity are in no position to demand human rights and equality for themselves.
These arguments against decriminalizing adultery are always presented under the pretext of safeguarding marriages and families and protecting children.
However, it should be asked whether we are still in an age in which it is considered necessary to trample on equality and human rights for the sake of marriage and the family.
The law that makes adultery a punishable crime violates gender equality. An analysis of data provided by district prosecutors’ offices throughout Taiwan for the years 2008 to 2012 shows a statistically significant gender difference in the handling of adultery cases, both at the investigation stage (including the lodging of accusations, the withdrawal of accusations and indictments), and during the trial stage, (including the withdrawal of charges and convictions).
From the perspective of the number of cases ending in a conviction, more women than men are found guilty of adultery. When compared with other crimes, for which an average of six times as many men are convicted as women, it is clear that women are disproportionately liable to be punished for adultery.
The reasons more women than men are punished for adultery can be inferred from the proportion of accusations that are withdrawn after being made against various categories of people.
Whereas 51.9 percent of accusations against husbands are withdrawn, the withdrawal rate for accusations lodged against wives is 43 percent. This figure falls to 31.7 percent for accusations filed against female third parties, and just 22.8 percent for those lodged against male third parties.
An analysis of the statistics further reveals that wives are more willing than husbands to simultaneously withdraw accusations against an allegedly adulterous spouse and the other allegedly adulterous person.
These figures correspond with the way society views husbands’ and wives’ affairs, and with the choices society expects people to make about whether or not to forgive third parties.
The gender prejudice that causes this discrepancy in punishment makes the law discriminatory in practice, even though the prejudice is not written into the terms of the law.
The spirit of the UN’s International Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) is concerned with “practical” or “actual” gender equality. Given the way the adultery law is implemented, it does cause a breach of the principle of equality in practice.
Taiwan’s plan for implementing the CEDAW, which is dubbed “big strides ahead for gender equality,” says that if there is a gender discrepancy of 3 percent or more in the results of implementing any law, then that law should immediately be seen as violating gender equality in practice, and it should be put on the agenda for improvement through amendment or abolition.
The figures quoted above show that the gender discrepancy in punishment for the offense of adultery carries a ratio of 54 percent to 45 percent. Accordingly, the law that makes adultery a criminal offense should immediately be put on the agenda for legal review.
Of the females punished for adultery, 40 percent are married women — the very group people think is protected by making adultery a criminal offense.
Married women who are accused of adultery, and those who are punished for it, tend to be economically disadvantaged and are often the victims of domestic violence.
Many of their cases have sad stories behind them. It is often said that having an affair is a mistake that any man could make, but when a woman does it, she is called a “slut.”
If women make such a mistake and get found out, they not only lose their children and their dignity, but also get saddled with a criminal record.
The differing attitudes that people have toward men and women who have extramarital affairs cause such women to be abandoned by the social majority.
The opprobrium accorded to them discourages them from speaking out, and there are even some people of a patriarchal inclination who say that lawbreakers have no right to human rights.
At this point, we must ask whether it is really necessary to employ the harshest means available to state authority to prevent and punish a mistake that both men and women can make, all for the sake of safeguarding marriage.
As longstanding advocates of gender equality, are we really willing at this time to make a united front with those patriarchal types who are always telling women to maintain their sexual purity and be meek and obedient?
Kuan Hsiao-wei is an assistant professor of law at National Taiwan University.
Translated by Julian Clegg