The Council of Grand Justices’ in Constitutional Interpretation No. 791 delivered on May 29 declared that sexual autonomy is a basic right protected by Article 22 of the Constitution, and it is unconstitutional to impose criminal punishments on adulterers based on the Criminal Code.
According to the interpretation, Article 239 of the Criminal Code and a proviso clause in the Code of Criminal Procedure (刑事訴訟法) for the crime of adultery are unconstitutional and were to be considered null and void, effective immediately.
Following Constitutional Interpretation No. 748, which said that the Civil Code’s prohibition of same-sex marriage was unconstitutional, this ruling is another profoundly enlightening interpretation, but goes against mainstream public opinion.
Since the right to sexual autonomy is a basic human right, should a married person who visits a prostitute still face fines in accordance with Article 80 of the Social Order Maintenance Act (社會秩序維護法)?
Under the article, anyone “engaged in sexual transactions” shall face a fine of “not more than NT$30,000.”
In this case, could a married person caught soliciting a prostitute cite the latest constitutional interpretation to argue that they cannot be punished based on the Criminal Code for exercising their right to sexual autonomy?
The person visiting the prostitute could argue that it is a matter of sexual autonomy, both for the client and for the prostitute.
If punishing a person who visits a prostitute serves the purpose of maintaining a moral code, a spouse’s betrayal of their wedding vows is a much bigger breach of such a code and also contravenes the sanctity of marriage.
The justices determined that imposing restrictions on people’s right to sexual autonomy through criminal punishment is a breach of the principle of proportionality, but their sense of proportionality is clearly different from that of the majority of the public.
After Interpretation No. 791, the next topic of discussion could address the constitutionality of fining people who solicit a prostitute in accordance with the Social Order Maintenance Act. The issue also involves whether local governments should establish red-light districts.
More than eight years have passed since the promulgation of Article 91-1 of the act, which authorizes local governments to “enact self-government ordinances governing the establishment and management of sex districts,” but none have dared stir up public anger by establishing such districts, and only a few city and county councilors have advocated doing so.
During the peak of the COVID-19 pandemic, the government ordered hostess bars and dance venues to close.
As the pandemic subsides, local governments — with the exception of Tainan — have been vague about whether they would allow these businesses to resume, with some passing the buck to the central government.
This examplifies Taiwanese’s attitude to the sex industry: They turn a blind eye to private and informal premises, but legal establishments are still considered taboo.
Many problems in secret and informal sex businesses remain unresolved, such as exploitation, armed bodyguards, poor hygiene and corruption.
As Taiwan is on the way to implementing transitional justice, while paying particular attention to good governance, perhaps it is time to follow up on the decriminalization of adultery by also thinking about how to establish legal districts for the sex industry.
Jeng Shann-yinn is an honorary professor at Kainan University’s law department.
Translated by Chang Ho-ming
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