When a man surnamed Chen discovered that his wife, surnamed Chang, was having an affair with a foreign national surnamed James, he hired private investigators to catch them having sex. Chen and three private investigators staked out James’ apartment and, when they heard moaning sounds coming from Chang, burst in and filmed the couple in flagrante delicto. A judge later found the pair guilty of adultery and sentenced them to four months in prison, and ordered the foreign national to be deported.
Like anywhere, adultery is a daily occurrence in Taiwan, and rarely a day passes when an adulterous couple are not sentenced to jail time. According to Article 239 of Taiwan’s Criminal Code, “A married person who commits adultery with another shall be sentenced to imprisonment for not more than one year; the other party to the adultery shall be subject to the same punishment.”
In practise, few people are jailed because the sentence can be commuted to a fine of about NT$900 per day of jail time. They are, however, stuck with a criminal record. Taiwan is the only developed nation in the world with such a law (South Korea struck down its adultery law in 2014).
Illustration: Yi-chun Chen
The law’s original purpose was to ensure harmony in the marriage and maintain social stability. And with divorce on the rise, marriages in decline, hostess bars dotting the cityscape and the ubiquitous availability of hook-up apps, it may seem that the continued criminalization of adultery might be more necessary than ever before. A 2013 poll showed that 82.2 percent of Taiwanese support the law.
But legal scholars and human rights activists say that the law does nothing to deter adultery.
“It’s a joke,” Wang Ping (王蘋), secretary general of the Gender/Sexuality Rights Association, tells the Taipei Times. “There’s a law here so I won’t commit adultery? That’s absurd.”
Moreover, the manner in which evidence is often gathered is a violation of privacy that results in all sorts of absurd behavior, and is a human rights issue because the lion’s share of suits are brought against women, even though men are more likely to commit adultery.
The Council of Grand Justices will hold a public hearing today to hear opinions about whether the law should be scrapped. They will announce their decision on whether the law is constitutional within two months.
VIOLATION OF PRIVACY
A man surnamed Lee suspected his wife of having an affair with a Japanese businessman and hired private detectives to gather evidence. They followed the wife and businessman to a hotel, broke down the door and videotaped them in bed. Lee threatened to go to the police with the evidence unless the businessman signed a contract agreeing to give Lee NT$7 million. The businessman signed the contract.
Adultery cases follow a common pattern. A spouse suspects or learns of an affair, hires private investigators to stake out the adulterers’ love nest and then gather evidence — often illegally.
There are reasons for this. Under Taiwan law, adultery requires that sexual intercourse exists between a married individual and someone other than his or her spouse, which makes adultery difficult to prove. Reported court cases show that one of the best ways to secure a guilty verdict is to provide video evidence of the adulterers having sexual intercourse (a man committing adultery with another man cannot, under current law, be tried for adultery). Forensic evidence can be admitted, but without video evidence a guilty verdict is far from certain.
After paying Lee NT$2 million, the businessman sued him and the private investigators for unlawful entry and assault. The judge determined that the husband and private investigators did unlawfully enter the room and ordered them to pay the businessman NT$100,000.
The judge also ruled that the businessman had to pay Lee the remaining NT$5 million from the original contract, which the judge determined was not signed under duress.
In the case of the foreign national, Chen and the private investigators were sued for unlawful entry. The judge found them guilty and sentenced them to three months in prison, which they could convert to a fine.
As the above cases show, violations of privacy are rampant when it comes to proving adultery. Aggrieved spouses and the private investigators that they hire also engage in other crimes such as fraud and extortion — crimes that are far more serious than adultery.
A doctor surnamed Chang thought his wife was having an affair with a real estate investor surnamed Yan. He hired private investigators, who installed six pinhole cameras in Yan’s mansion and later filmed him having sex with a woman — but it wasn’t Chang’s wife. The private investigators then sent Yan the footage and threatened to make it public if he didn’t pay them NT$1 million. Yan immediately went to police and told them that the private investigators were trying to extort him. The police arrested the private investigators and the case is ongoing.
The law also leads to all manner of absurd defenses.
In one case, the mistress claimed she stuck a hot dog into a condom along with her lover’s sperm and put the “fake penis” inside herself so as to get pregnant by standing on her head.
Another found a wife filming a noisy romp in a car between her husband and his alleged mistress. When shown the recording in court, the adulterous pair claimed that they were praying loudly and discussing Christian teachings.
A third involved a husband sending his wife’s used sanitary pads to be tested for sperm. The test came back positive — but the sperm wasn’t her husband’s. The wife claimed that she had “borrowed” the sperm from a man surnamed Tang, who admitted that he “lent” it to her, but had no idea what she was going to do with it.
Grace Kuan (官曉薇), a legal scholar at National Taipei University, says that decriminalizing adultery is, like abolishing capital punishment and legalizing marriage equality, part of a broader push to bring Taiwan’s legal system in line with international human rights law.
Although not part of the UN, the legislature in 2009 ratified two UN human rights covenants: the International Covenant on Economic, Social and the Cultural Rights and the International Covenant on Civil and Political Rights ICCPR). In 2013, a group of international human-rights experts came to Taiwan to review the implementation of these covenants and wrote a report, Review of the Initial Reports of the Government of Taiwan on the Implementation of the International Human Rights Covenants.
In its “concluding observations,” the experts found “that criminalizing adultery is not in conformity with Article 17 of the ICCPR. The experts recommend that the government should take steps to abolish this provision from the Criminal Code.”
In response, the Ministry of Justice (MOJ) held an opinion poll in 2013, which revealed that 82.2 percent of respondents supported the law. But the poll was a ruse. As the competent authority, the MOJ could have asked the legislature to scrap the law, but instead used the poll as a justification for its inaction.
The MOJ also held a public hearing in the same year, inviting several groups that “oppose the idea that it is a human rights violation,” Kuan says. “And after that, they did nothing.”
In 2017, the international experts issued a second report, Review of the Second Reports of the Government of Taiwan on the Implementation of the International Human Rights Covenants, where it wrote that Taiwan “should take steps to abolish the crime of adultery as this constitutes a violation of the right to privacy.”
The international experts didn’t buy the MOJ’s reason for not taking action, explicitly citing the poll as an excuse.
“It is the responsibility of [Taiwan’s] government to bring its legal system in line with international human rights law and to take the lead, by means of awareness raising and other initiatives, to dispel concerns among the general public related to the protection of marriage and the family system,” they wrote.
The international working group “reiterates its recommendation to decriminalize adultery and expresses its concern about its disproportionately negative impact on women.”
VIOLATION OF WOMEN’S RIGHTS
As late as the 1990s, some women’s rights activists believed that adultery should remain a criminal offense because it could be used as a bargaining chip for women in the event of divorce. These activists reasoned that, in the absence of alimony and the fact that men were usually given custody of the children and control over the assets, women would be in a better position to make demands of their wayward husbands by threatening them with a criminal record.
After the Civil Code was amended in the early aughts, divorce laws ceased to discriminate against women — and women today have far more control over their financial situation than they did two decades ago.
Today, in addition to privacy issues, legal scholars say the law discriminates against women. Children born out of wedlock also become pawns in the legal drama.
A woman surnamed Wang learned that her husband was having an affair with a woman surnamed Chang. Wang sued her husband and Chang for adultery, but later dropped the suit against her husband so as to protect the identity of their two children. A month after dropping the suit, Wang and her husband divorced. Chang was still prosecuted for adultery.
Kuan, who will submit a report to today’s public hearing, says that although the law is written to be gender-neutral, in practice women are 20 percent more likely to be convicted than men, even though men commit adultery more often.
“In practice it is usually women who have been punished,” Kuan says.
Chuang Chiao-ju (莊喬汝), chairwoman of the Awakening Foundation and an attorney, says there are cultural reasons for why men are forgiven for adultery.
“Within our society, tolerance for adultery differs for men and women. It is expected that men will commit [adultery]. It’s similar to saying that women care about how they look,” Chuang says.
Chuang, who will submit a report to the public hearing, adds that men are also reluctant to speak out publicly about decriminalizing adultery.
“All my male colleagues agree that the law should be scrapped, but don’t want to say so publicly,” Chuang says. “They fear that if they do, people will think that they want to commit adultery.”
Consequently, the negative impact of the adultery law is framed as a women’s rights issue, when in reality the problems surrounding the law could be used to open a broader discussion about sexuality and gender within Taiwanese society.
“Taiwan remains very conservative when it comes to discussions about sex,” Kuan says. “Every country has a percentage of how many people commit adultery. But there is no data for Taiwan because it is stigmatized and it is a crime.”
Wang, who used to work at the Awakening Foundation, agrees.
“Taiwan hasn’t gone through a sexual revolution,” Wang says.
Kuan says that a lack of public discussion about sexuality maintains gender stereotypes, which in turn means that changing archaic laws takes considerable time.
“Wives are always portrayed as the victim — even though 40 percent of adulteries in Taiwan are committed by women,” Kuan says.
Two cases appeared before Kaohsiung District Court Judge Yeh Chi-chao (葉啟洲), which led him to believe that the adultery law is unconstitutional and adultery should be decriminalized. In both cases the married couples had been separated for at least five years, and in one case a child was involved in the dispute.
“How can you still suffer emotional damage after such a long period of separation?” Yeh, who today is a legal scholar at Chengchi University, asks me. “You only suffer a loss of face.”
He asked the Council of Grand Justices for a constitutional interpretation — the first of its kind for the adultery law.
The wife in one case had a child with her new partner and the child became the main bit of evidence that adultery had taken place.
Kuan says using a child as proof in an adultery case is more common than most people think.
“Twenty-two percent of the cases I looked at involved a child born out of wedlock, and they are used as evidence in a criminal trial,” Kuan says.
Kuan calls this a “violation of human dignity.” Her research shows that cases involving children will more often result in a guilty verdict because the proof is undeniable. It is also less likely that a spouse will withdraw the charges in cases involving children born out of wedlock.
“Many argue that it’s best that you don’t have children from an affair. But clearly that’s not realistic because people are having an affair and having children out of wedlock and the child is innocent,” Kuan says.
Yeh’s request led to Constitutional Interpretation 554. In it, the 18 justices unanimously found the law constitutional, writing that “the freedom of sexual behavior is inseparably related to the personality of individuals, and every person is free to decide whether or not and with whom to have sexual affairs. Such freedom is, however, legally protected only if it is not detrimental to the social order or public interest.” “Thus,” it concluded, “the freedom of sexual behavior is subject to the restriction put on it by marriage and the family system.”
In other words, the justices all agreed that the law is an effective deterrent to adultery.
Yeh expressed surprise at the decision.
“In my experience as a judge, there isn’t one example where this is the case,” he says.
Chuang, like all the legal scholars, lawyers and activists with whom I spoke, is optimistic that the Council of Grand Justices will scrap the law this time.
Their optimism is justified. Many of the grand justices that rendered a decision in Judicial Yuan Interpretation No. 748, granting marriage equality, will be the same ones to decide whether the adultery law is unconstitutional.
Also, the very fact that it is the Council of Grand Justices calling for the public hearing, rather than the MOJ, means that it won’t be as beholden to public opinion.
“Law is usually two or three decades ahead of society’s values,” Chuang says.
As Kuan and I were finishing the interview, we went through the list of judges who will decide on the constitutionality of the adultery law, which requires a simple majority. She crossed out the names of those who would not support scrapping the law — less than 25 percent.
Kuan foresees three possible scenarios: That the grand justices might hedge their bets by saying that it is constitutional but future court cases have to take in to account gender inequality or privacy issues. Another scenario is that they punt it to the MOJ or legislature to sort it out.
“Or, the grand justices say [the law] is unconstitutional,” she says.
Ultimately, many in the legal profession agree that the state should not be in the business of criminalizing this kind of behavior.
“If there are a problems in the marriage, it isn’t the role of the legal system to figure out how to resolve those problems in a criminal manner,” Wang says. “The problem doesn’t disappear. It isn’t healthy.”
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