Why the adultery statute was abolished
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The MOVIE actress, Ok So-ri, was sentenced to jail for two years after her husband accused her of adultery in 2007. Ok, as a response, requested the Constitutional Court for constitutional review of the adultery statute. She asserted that the law was unconstitutional because her right of sexual privacy has been infringed and her husband abused the legislation as a tool to carry out personal revenge. At the time, her claim was dismissed and Ok was eventually convicted. However, if the trial was processed today, Ok would not be guilty of any crime. On Feb. 26 of 2015, the Constitutional Court abolished a six-decade-old statute that illegalized adultery.
Behind the verdict
A survey by Kookmin Ilbo, which was carried out one day before the judgment, shows that 69.3% of respondents demanded retention of adultery punishment whereas the remaining 30.7% argued for abolition. Despite the majority’s will to criminalize extramarital affairs, the court has made a verdict based on the contemporary social dynamics that highly value sexual self-determination. The right to have sexual intercourse, if both sides consent to the act, is included in the definition of sexual self-determination. Being responsible for the aftermath is indeed a prerequisite before having an affair and therefore, as long as one is aware of the risk, one has liberty to freely engage in sexual activities. Statutes in South Korea corroborate the guarantee of sexual liberty. The first clause of Article 37 of the constitutional law advocates the freedom of citizens unless they impose threat to national security and to the public welfare. Since marital infidelity is a personal matter, restricting and castigating individual’s sexual liberty is an intolerable intrusion of privacy by the government. Such legislations that advocate the protection of privacy limit a judge’s discretionary power to determine the punishment for adultery. Therefore, the court decided to abolish the statute that has protected as well as violated individual sexual determination in order to ensure that the entire law system operates justly.
The constitution’s decriminalization of marital infidelity also implies that the society has become less conservative. The adultery law has been unsuccessfully challenged in court in 1990, 1993, 2001 and 2008. Although the court upheld the constitutionality of the legislation each time, there is a striking contrast in the number of advocates between 1990 and 2008. In 1990, when the statute was first subjected for constitutional review, six out of nine judges insisted on retaining the law. Yet, in 2008, nearly half of judges questioned the legitimacy of penalizing infidelity due to privacy issue. The difference in statistics demonstrates the court’s increasing emphasis on individuality and insinuates the court’s inevitability of repeal of the adultery statute.
Moreover, the adultery law of Korea had been unjust as financial burden and negligence of female rights were intrinsically related to the issue. The economic discrepancy between male and female has been an enduring social issue, especially in South Korea. The wealth gap is a barrier when penalizing those accused of moral wrongdoing. Ju Jin-woo, an official at the Ministry of Gender Equality, claims that one of the grounds for maintaining adultery is a crime is the protection of women’s interests, which has been undermined. Since South Korea has been a patriarchal society for such a long time, men tend to have relatively stronger economic power than females. With a bigger wealth asset and stronger ability to pay alimony, men can be exempted from punishment for extramarital affairs. On the other hand, women still possess lower economic and social statuses so that they have higher chances to be penalized. Thus, considering that female and the impoverished ones would be more extensively damaged by the statute, the court had determined the abolition of the adultery law.
Blinded by disapprobatory love
The biggest concern raised by the nullification of the adultery statute is a change in moral standards. The South Korean government recently lifted the ban on the Canadian website Ashley Madison that facilitates marital infidelity among its clientele. A sense of uneasiness towards Ashley Madison is provoked by its controversial advertising slogan “Life is short. Have an affair.” This statement is suspected to encourage adultery to become more widespread. “I am worried that many spouses would be blinded by lust after contacting Ashley Madison.” Yoo So-hee, a mother of two children, expressed her concern with this particular dating site. “The business indeed has a demoralizing nature,” she said. Because a two-year sentence is no longer applicable to the adulterers, people would have distorted perceptions that extramarital affairs are legal and thus, tolerated. Such an erroneous notion would rampantly be used as an excuse for infidelity, without being aware of any fiascos caused by their negligence to their marital duties. Han Joon (Prof., Dept. of Sociology, Yonsei Univ.) states, “the familial bond, which is one of the pillars that maintains the function of the society, may wane.” If there is an increasing population of spouses seeking an affair, it will develop into a prevalent social phenomenon. In turn, codes of ethic in the nation will be violated and the wellbeing of the society will be damaged. It is predicted that adultery would become more salient since websites that promote extramarital affair are now legalized.
The number of clienteles of Ashley Madison is spiking. Approximately 2,000 people have signed up for the site after it has been back in business for three weeks. It is out of the nation’s control to prevent people from joining such websites because the government cannot violate an individual’s freedom to access legal content. Since marital infidelity is no longer a crime, shutting down these sites is not an option to preserve social order and avert demoralization of the community. Guiding an individual not to exploit his or her self-determination to justify adultery would be the key measure. A program held by civilian organizations may lecture ways to respect each other and to share ethical responsibility within a conjugal relationship. These consistent endeavors would cause less stir in the society. Given that the nation is refrained from intervening in marital matters, both spouses are responsible for maintaining harmony in their family.
Spotlight on civil proceeding
It must be clarified that the adulterers are solely exempted from criminal liability but not from civil liability. The main difference between a criminal proceeding and a civil proceeding is whom the prosecutors represent. In a criminal proceeding, perpetrators are prosecuted by the state and judges stand as representatives of the state. However, prosecutors in civil proceeding play a minor role since the accusers themselves are the ones who file the case. The adulterers would not be sentenced to jail but instead would have to pay monetary compensation, which is determined by their spouses. A civil code dictates adultery as an action that abandons marital duty and accepts a divorce file against the adulterer. Jang Myeong-soo (Prof., School of Law, Korea Univ.) regards ethical tolerance of adultery as the common misconception of decriminalizing marital infidelity. Civilians need to be aware of the devastating aftermath of extramarital affairs even after the abolition of the adultery statute.
Taiwan remains as the sole Asian nation that criminalizes adultery. Apart from Taiwan and Islamic countries, a majority of nations have already declared punishment for adultery as unconstitutional in the 20C. These countries also file extramarital affair as a civil case. For instance, in Japanese and European courts, the adulterers have to pay a monetary compensation if the litigator feels that his or her right to sexually monopolize the spouse is infringed on due to the spouse’s infidelity. Moreover, the litigator can charge the plaintiff without any evidence to prove adultery. He or she merely has to describe the change in the spouse’s attitude and the mental suffering received after finding out about the spouse’s affair. Like these nations that have decriminalized adultery for decades, South Korea also needs to reform its civil legislation so that marital infidelity will not become rampant and tarnish the nation’s ethical standard. Calamity stemming from an inaccurate notion can only be mediated by imposing punitive damages to the adulterers who then, will be obliged to compensate for more than the measurable value of the individual loss.
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Abolition of the adultery statute is an experiment for South Korea as the consequences following the verdict are not yet conspicuous. Nonetheless, the infringement of the ethical code will be made if adultery becomes prevalent. What should be acknowledged is the fact that adultery impairs the marital relationship and dismantles family. The family members would live with deeply wounded hearts and with distrust. Although a person may not be punished for marital infidelity, the act is unforgiveable.
Kim Ye-eun
yeeunkim@yonsei.ac.kr