In December 2001, this newspaper ran an editorial with a headline similar to this one. Taiwan, along with the rest of the world, has changed immeasurably since then, but adultery remains a criminal offense in Taiwan under Article 239 of the Criminal Code.
This nation is one of the few in the world to still consider adultery a criminal, rather than civil, offense, with punishment of up to one year in prison, but hopefully this could finally change in the foreseeable future.
The Council of Grand Justices on Tuesday is to begin hearing arguments on the constitutionality of that article, following petitions from 14 judges and a defendant in an adultery case.
While previous reforms have failed, a ruling by the grand justices could once again be the impetus for the Legislative Yuan to change the law, much as the justices were with Constitutional Interpretation No. 748 on May 24, 2017, which ruled that prohibitions against same-sex marriage were unconstitutional.
As with that ruling, the grand justices will be reviewing Article 239 in light of the legislature’s 2009 ratification of the UN International Covenant on Economic, Social and Cultural Rights and the UN International Covenant on Civil and Political Rights, and the government’s implementation of those laws.
The Ministry of Justice tried to overhaul the law in the mid-1990s, supported by the Awakening Foundation and other civic groups. There have been other campaigns since then, but defenders of the “status quo” have argued that changing the law would only encourage extramarital affairs, leading to the breakdown of more marriages and families, and that the law gives wives leverage against errant husbands in divorce cases.
The only real change to the idea that adultery should be punished under criminal law since the early years of the Republic of China was that in 1934, the Legislative Yuan amended the law so that both men and women could be held criminally liable; prior to that, only women were. And yet, it is women who have continued to suffer disproportionately under the law: They have been prosecuted at a higher rate than men, and therefore have higher rates of conviction.
This is because under the law the “innocent spouse” must file charges against both the errant spouse and the spouse’s partner in adultery. Data from district prosecutors’ offices show that while more than half of accusations against a husband end up being dropped, the withdrawal rate for accusations against a wife is a little more than 40 percent, and a little more than 30 percent for accusations against female third parties.
Women have been more willing to withdraw charges against their husbands — be it for the sake of their family or for financial reasons — than men are against their wives, and while women might be willing to forgive their husbands, they are more likely to continue to push for charges against their husbands’ mistresses or lovers.
Yet to win such convictions, there must be evidence of adultery, which has led to salacious media reports over the years of police and private detectives breaking into hotel rooms to catch allegedly errant spouses in flagrante delicto, and gather evidence, such as video footage, photographs or used condoms.
Police have better things to do than try to catch errant spouses, and criminal prosecutions are no solution to marital woes.
A change to the law is long overdue: Not just because Article 239 is a violation of human rights, but because criminalization of adultery — much like the imposition of the death penalty in murder cases — has failed to deter illegal behavior.
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