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Adultery still a criminal offense

"A legitimate marriage and family system are the foundation of a society. They are definitely protected by the Constitution. Adultery does not fall within the scope of that protection."

Yang Ren-shou, Judicial Yuan secretary-general

The Council of Grand Justices ducked the opportunity to decriminalize adultery yesterday when it ruled that the offense was in line with the Constitution because it threatens "the social order."

"A legitimate marriage and family system are the foundation of a society. They are definitely protected by the Constitution. Adultery does not fall within the scope of that protection," said, Judicial Yuan Secretary-General Yang Ren-shou (楊仁壽), speaking on behalf of the Council of Grand Justices and quoting from Interpretation No. 554 yesterday.

Under Article 239, of the Criminal Code convicted adulterers may be sentenced to up to one year in prison if sued by their spouse. Yesterday's interpretation was requested two years ago by Kaohsiung District Court Judge Yeh Chi-chou (葉啟洲) who, in his submission, stated his view that sexual intercourse between consenting persons was protected by the freedom of personal behavior as enshrined in Article 22 of the Constitution. He further submitted that it would not adversely affect social order or public welfare and therefore could not be restricted by legislation under Article 23 of the Constitution.

Article 22 says, "All other freedoms and rights [than those listed in the previous articles] of the people that are not detrimental to social order or public welfare shall be guaranteed by the Constitution."

Article 23 says, "All the freedoms and rights enumerated in the preceding article shall not be restricted by law except by such means 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."

Continuing his recitation of the interpretation, Yang said, "There is no doubt that sexual intercourse should be regarded as `personal behavior' and therefore as an individual freedom protected by the Constitution.

"But a relationship outside a legitimate marriage will not be protected because it concerns at least two separate families and will disturb the social order and create a lot of social problems, in breach of the spirit of Article 22 of the Constitution," he added.

Local women's groups voiced objections yesterday, accusing the judiciary of being overly conservative and impeding progress by refusing the opportunity to change the law so that it may reflect the needs of a modern society.

"I must say, unfortunately, that the interpretation seems to me to be a product of the last century," said Wu Wei-ting (伍維婷), the director-general of the Awakening Foundation. "They [judicial officials] did not realize that interaction between men and women has become a lot more complicated than it was decades ago. Our laws have not moved with the times. It is pathetic."
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