A little more than three years after the Council of Grand Justices issued its historic Constitutional Interpretation No. 748 ruling that Civil Code provisions defining marriage as between a man and a woman contravened the Constitution, the grand justices have declared that treating adultery as a criminal offense is unconstitutional and that such laws were immediately terminated.
With yesterday’s ruling, Interpretation No. 791, the justices have once again gone where elected politicians and the Ministry of Justice have too long feared to tread — hiding behind pedantically worded opinion polls, whether government or privately commissioned, showing that a large majority of respondents were opposed the decriminalization of adultery.
Interpretation No. 791 overturns Interpretation 554, issued in 2002, which upheld Article 239 of the Criminal Code on offenses against marriage and family, and declared “the freedom of sexual behavior is subject to the restriction put on it by marriage and the family system.”
The grand justices’ ruling also pushes the ministry and the Executive Yuan to fulfill their obligations under the Act Governing Execution of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights (公民與政治權利國際公約及經濟社會文化權利國際公約施行法), passed by the Legislative Yuan on March 31, 2009, stipulating that government agencies must conform to the two covenants’ human rights guarantees and formulate, amend or abolish those laws and regulations that are not in compliance with the covenants within two years of the act entering into force.
Under the 2009 law, the government was required to establish a reporting system to monitor its compliance with the two covenants. Two reviews by groups of international experts of the government’s rights reports, in 2013 and 2017, both found fault with the government’s implementation of various elements of the covenants. Both reports recommended the government abolish the criminalization of adultery on the grounds that it violates the right to privacy and did not conform to Article 17 of the International Covenant on Civil and Political Rights.
The 2017 report placed the onus for changing the laws on marriage, the family system and adultery on the government, not society, stating: “It is the responsibility of government to bring its legal system in line with international human rights law and to take the lead … to dispel concerns among the general public.” The grand justices recognized the landmark nature of their decision, appearing in the Constitutional Court for the first time in a live streamed reading of the ruling.
Decriminalizing adultery is not synonymous with encouraging it or eliminating legal remedies or punishments for a spouse straying from their vows, as those can be sought through civil courts, and in reality, the threat of a criminal record, a jail term or a hefty fine provide scant protection against the break-up of a marriage. The grand justices’ decision recognizes that marriages and families cannot be held together by laws that require gross violations of privacy laws to collect the level of evidence needed to prove a criminal offense, be they photographs, video footage, used condoms or hotel receipts, and that the government should not be intervening in marriages.
Many of the groups that opposed the legalization of same-sex marriages have been the loudest defenders of the adultery laws, but the breakdown of social mores and Taiwanese culture they predicted would follow Interpretation No. 748 have not come to pass.
Interpretation No. 791 too is unlikely to damage the fabric of society; the only real losers will be the private investigators who have made a living out of married couples’ miseries by tracking allegedly errant spouses, planting spy cameras or breaking into homes and hotel rooms trying to catch people having sex with someone other than their spouse.
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