De-criminalization of Adultery in Taiwan?

In 2017, Taiwan[1] become the first Asian region legalizing homosexual marriage by the issuance of Interpretation No. 748.[2] Like the United States, this legalizing process is done by the highest court, the Supreme Court’s Grand Justices Council. Three years after Interpretation No. 748, in March 31, 2020, the Grand Justices Council heard another milestone petition regarding a possible fundamental change in family law: whether Taiwan should decriminalize adultery.[3]

The issue in front of the Court is the constitutionality of Article 239 of both the Criminal Code[4] and Criminal Procedure of Taiwan.[5] The Criminal Code states: “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.”[6] The corresponding article in Criminal Procedure states that:

In a case chargeable only upon complaint, the filing or withdrawal of a complaint against one of several co-offenders has the same effect as a filing or withdrawal of the complaint against all such co-offenders, provided that if the offense is one specified in Article 239 of the Criminal Code, the withdrawal of a complaint against a spouse shall not be considered to be a withdrawal of a complaint against the other adulterer.[7]

In other words, adultery is a crime only chargeable upon complaint; beside the unfaithful party in a marriage, the third or other party out of wedlock is also subject to criminal prosecution, but in the situation where the unfaithful party is forgiven by his or her spouse the criminal complaint against the third party is intact after the charge against the spouse is dropped. “The law’s original purpose was to ensure harmony in the marriage and maintain social stability.”[8] With divorce on the rise and marriages in decline the majority keeps viewing the continued criminalization of adultery as necessary.[9]

Plain from the text, the laws treat the unfaithful parties in and out of wedlock differently. It is not unusual that the only party being complained is the third party whereas the other unfaithful party remains married. In some extreme circumstances, after a rape victim fails to convict the married perpetrator for sexual-assault related crimes, the perpetrator’s spouse may successfully counter-convict the victim based on the adultery charge because article 239 itself does not look at the reason behind the adultery.[10]  As Ms. Hui-jung Chi observed, article 239 has become the retaliatory tool against the victim or any unfaithful party.[11]

In addition, studies show that women are more likely to be charged and convicted under article 239 than men with the conviction ratio of women to women at 100:88.[12] This argument is also corroborated by the Criminal Affair Office of the Judicial Yuan, Taiwan’s highest judicial organ.[13] Even in terms of protecting the marriage or family institution, imprisoning the unfaithful parties (mainly the third party) can hardly reconcile the couple.[14] In reality, couples can get into fights due to things as small as how to squeeze toothpaste.[15] The state should not get involved in such trivial and daily matters.[16] On the other hand, studies of South Korea’s decriminalization of adultery shows that such change in law did not impact its divorce rate.[17]  

The advocate for preserving article 239 argued that without any fundamental change in society nor public opinion, the court should not act at all to invalid laws.[18] Echoing the concern raised in Obergefell v. Hodges’s dissent,[19] they also argue that even if there is any fundamental change, such decision should be made by the legislature or through a referendum, not the court.[20] Given that over 80% of people are against decriminalization, the court should not make such change against public opinion.[21] Assuming arguendo that law should change, for the sake of social stability, an amendment might be better than a complete abolishment of articles 239.[22]

This is not the first time that article 239 has been challenged on constitutional grounds. Back in 2002, a district court judge from Kaohsiung, Qizhou Ye, found article 239 cannot help to ensure marriage nor happiness, and it is violative of a citizen’s basic freedom right, property right, and sexual freedom.[23] Judge Ye petitioned the Grand Justices Council to review article 239. However, in 2002, the Justice upheld the validities of these two articles.[24] The Justices first found that marriage and family are the cornerstones of a society, which are essential to maintain human relationship, gender equality and raising of children.[25] Though “freedom of sexual behavior is inseparably related with the personality of individuals,” the excise of such freedom should not be detrimental to social order or public interest, that is, the preservation of marriage and family.[26] In addition, the Court is satisfied with the restrictions imposed by legislature on article 239 of Criminal Procedure.[27] Thus, per Articles 22 and 23 of Taiwan’s Constitution,[28] article 239 is valid.[29]

Four years ago in 2016, but 14 years after Interpretation No. 554, signs showed that the Grand Justice Council might change their mind in terms of the proportionality between restriction on freedom to sexual behavior and insurance of social order and public welfare.[30] In Interpretation No. 666, the Grand Justice Council invalidated administrative penalties imposed on sex workers on the ground of equal protection because such penalties only penalizes (1) the sex workers, not their “clients,” while sex is a joint act, (2) sex for the purpose of financial gains, not any other consideration, (3) in fact mostly females (and especially socially and economically disadvantaged females), not men.[31] Thus, the penalizing standards adopted by the legislature lacks “substantive nexus with the legislative purpose,” public health and social morals.[32] The court held it shall cease to be effective within two years.[33]

The other landmark interpretation is Interpretation No. 748 where the court held prohibition on same-sex marriage violates constitutional protection in people’s freedom of marriage and equal protection.[34] It emphasized that “[the] freedom of marriage guaranteed by Article 22 of the Constitution is an inherent right in personality development and human dignity.”[35] Neither the importance of the ends of anti-homosexual marriage law nor its relationship between its means and ends justifies such prohibition.[36]

In the hearing on March 30, the hearing of decriminalization of adultery at issue, both parties cite Interpretation No. 748 to support their positions.[37] In the eyes of the supporters, both Interpretation Nos. 666 and 748 show that the Court should no longer view the mere act of sexual intercourse as a meaningful measure to protect social order or public interest as Interpretation No. 554 held.[38] It shows that the Court starts to focus more on individual’s human rights rather than the society’s benefit.[39] Eighteen years after No. 554, the law, though not necessarily the society as a whole, regarding marriage has fundamentally changed.[40]

But the opponents conversely argue that what No. 748 really tries to do is to preserve marriage as an institution,[41] not just an agreement between two parties; otherwise, the Court may well leave homosexual commitments among couples private, not officially recognized by the law. Like No. 554 held, marriage and family will forever remain to be the cornerstone of the society.[42] Having an out of wedlock affair does not just alienate affections among individuals but harms marriage as institutions in need of state’s action.[43] Though article 239 may not work to maintain a happy marriage, as an effective deterrence, it helps to sustain the institution.[44] Even No. 748 observes that marriages are “exclusive”;[45] article 239’s protection against adultery should naturally extend to same-sex couples.[46]

In the end, after a three hours hearing, it is worth noting that Justices’ questions focus on practicability of article 239. Justice Jau-Yuan Hwang asked if the Court only remove article 239 of the Code of Criminal Procedure, whether article 239 of the Criminal Law could stand the constitutional challenge.[47] The supporters answered negatively.[48] They believed that adultery itself is a gendered crime against equal protection.[49] Justice Tai-Lang Lu asked how many couples remain married after adultery complaints.[50] The Ministry of Justice answered that they did not have concrete studies on this topic.[51] But Mr. Bi-Jhong Cai, the deputy minister, added that maintaining marriages is only one of the purposes of article 239.[52] Whether couples are happy or not is not part of the question.[53] Again, it is the institution of marriage that article  239 aims to protect.

The Grand Justice Council plan to issue an opinion within two months after the March 31 hearing.[54]

#adultery #women #equal rights # marriage #Taiwan

[1] The Taiwan authority claims itself as the Republic of China (ROC). However, based on Taiwan Relation Act, 22 U.S.C. §3301, the United States acknowledges that there is only one sovereign state under the name China, that is, the People’s Republic of China (PRC), and its relationship with Taiwan is unofficial without official government representation nor formal diplomatic relations. Given Taiwan’s unofficial diplomatic status, this article only considers Taiwan as a region as opposed to a sovereign state, referring it as “Taiwan,” not ROC.

[2] Interpretation No. 748 (Same Sex Marriage Case), Const. Ct. Jud. Yuan (May 24, 2017), https://cons.judicial.gov.tw/jcc/en-us/jep03/show?expno=748.

[3] Press Release, On the Adultery Case, Taiwan Constitutional Court (Mar. 31, 2020),  http://cons.judicial.gov.tw/jcc/Uploads/files/mei/Press%20Release%20on%20the%20Adultery%20Case.pdf.

[4] Criminal Code art. 239, L. & Reg. Database (June 19, 2019), https://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?pcode=C0000001 (Taiwan).

[5] Code of Criminal Procedure art. 239, L. & Reg. Database (July 17, 2019), https://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?pcode=C0010001 (Taiwan).

[6] Criminal Code art. 239.

[7] Code of Criminal Procedure art. 239.

[8] Noah Buchan, Why does Taiwan Still Criminalize Adultery?, Taipei Times (Mar 31, 2020), https://www.taipeitimes.com/News/feat/archives/2020/03/31/2003733700.

[9] Id.

[10] Hui-jung Chi (紀惠容),  Tongjian Zui, Yiwu Shichu (通姦罪，一無是處) [The Adultery Crime is Devoid of Any Merit], at 1, Testimony in Support of Decriminalization Hearing (Mar. 31, 2020), https://cons.judicial.gov.tw/jcc/Uploads/files/yafen/1090331%E9%80%9A%E5%A7%A6%E4%B8%80%E7%84%A1%E6%98%AF%E8%99%95(%E7%B4%80%E6%83%A0%E5%AE%B9).pdf.

[11] Id.

[12] Id. at 1–2.

[13] Lai Jun (賴昀), Tongjian Shifou Ying Chuzui Hua? Xianfa Fating Yanci Bianlun: Bei Dingzui Tongjian Zhe Nv Duoyu Nan, Xianshi Xingbie Bu Pingdeng (通姦是否應除罪化？憲法法庭言詞辯論：被定罪通姦者女多於男，顯示性別不平等) [Should We Decriminalize Adultery? Debate at Constitutional Court: Women are More Likely to be Convicted Than Men, Indicating Gender Inequality] Watchout (2020/4/1 03:30 AM), https://musou.watchout.tw/read/FaTl8ML00kS6Lf9MEsru.

[14] Wu Zhiqiang (吳志強), Guanyu Xingfa Di 239 Tiao Guiding Ji Xingshi Susong Fa Di 239 Tiao Danshu Shengqing Da Faguan Jieshi Zhi Buchong Liyou Shu (關於刑法第 239 條規定及刑事訴訟法第 239 條但書 聲請大法官解釋之補充理由書) [Supplement Petition to the Grand Justices Council Regarding Articles 239 of Code of Criminal Law and of Criminal Procedure], at 9–11, Testimony in Support of Decriminalization Hearing (Mar. 31, 2020), https://cons.judicial.gov.tw/jcc/Uploads/files/yafen/%E8%81%B2%E8%AB%8B%E4%BA%BA%E4%BB%A3%E8%A1%A8%E5%90%B3%E5%BF%97%E5%BC%B7%E6%B3%95%E5%AE%98%E4%B9%8B%E8%A3%9C%E5%85%85%E6%84%8F%E8%A6%8B.pdf.

[15] Lai, supra note 13.

[16] Id.

[17] He Xiaogang(何効鋼), Yanci Bianluan Yizhi Zhuang (言詞辯論意旨狀) [Oral Argument Outline Submission], at 6, Testimony in Support of Decriminalization Hearing (Mar. 31, 2020), https://cons.judicial.gov.tw/jcc/Uploads/files/yafen/%E8%81%B2%E8%AB%8B%E4%BA%BA%E4%BB%A3%E8%A1%A8%E4%BD%95%E5%8A%B9%E9%8B%BC%E6%B3%95%E5%AE%98%E4%B9%8B%E8%A3%9C%E5%85%85%E6%84%8F%E8%A6%8B.pdf.

[18] Lai, supra note 13.

[19] 135 S. Ct. 2584, 2611–26 (2015) (Roberts, C.J., dissenting).

[20] Lai, supra note 13.

[21] Tsai Pi-chung (蔡碧仲), Sifayuan Da Faguan Shenlihui Tai Zi Di 12664 Hao Shenqing Jieshi An (司法院大法官審理會台字第12664號聲請解釋案) [Grand Justice Council Hearing Taiwan No. 12664 Petition for Constitutional Interpretation], at 7, Testimony Against Decriminalization Hearing,  https://cons.judicial.gov.tw/jcc/Uploads/files/yafen/%E9%97%9C%E4%BF%82%E6%A9%9F%E9%97%9C%E6%B3%95%E5%8B%99%E9%83%A8%E4%B9%8B%E6%84%8F%E8%A6%8B(ppt1).pdf.

[22] Lai, supra note 13.

[23] He Xinjie (何欣潔), Tonghun Zhihou, Waiyu Zhiqian: Taiwan Li Tongjian Chuzui Hua Haiyou Duoyuan (同婚之後、外遇之前：台灣離通姦除罪化還有多遠) [In between of Sex-Same Marriage and Infidelity: How Far is Taiwan from Decriminalization of Adultery] Initium Media (Mar. 21, 2020), https://theinitium.com/article/20200401-taiwan-crime-of-adultery/.

[24] Interpretation No. 554, Const. Ct. Jud. Yuan (Dec. 27, 2002), https://cons.judicial.gov.tw/jcc/en-us/jep03/show?expno=554.

[25] Id.

[26] Id.

[27] Id.

[28] Xianfa (憲法) [Constitution] arts. 22–23, L. & Reg. Database (Jan. 1, 1947), https://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?pcode=A0000001.

[29] Interpretation No. 554, supra note 24.

[30] He, supra note 23.

[31] Interpretation No. 666, Const. Ct. Jud. Yuan (Nov. 6, 2009), https://cons.judicial.gov.tw/jcc/en-us/jep03/show?expno=666. Justice Ye Baixiu cited State v. Jordan 2002 (6) SA 642 (CC) at 39 (S. Afr.) (O'Regan, J., and Sachs, J., dissenting), in issuing his concurrence opinion: “[A] man visiting a prostitute is not considered by many to have acted in a morally reprehensible fashion. A woman who is a prostitute is considered by most to be beyond the pale. The difference in social stigma tracks a pattern of applying different standards to the sexuality of men and women.”

[32] Interpretation No. 666, supra note 31.

[33] Id.

[34] Interpretation No. 748, supra note 2.

[35] Id.

[36] Id.

[37] He, supra note 23.

[38] Id.

[39] Id.

[40] Id.

[41] Lin Chang-shun & Elizabeth Hsu, Constitutional Court Hears Debate on Decriminalization of Adultery, Focus Taiwan (Mar. 31, 2020 07:00 PM), https://focustaiwan.tw/politics/202003310016.

[42] He, supra note 23.

[43] Id.

[44] Id.

[45] Interpretation No. 748, supra note 2.

[46] He, supra note 23.

[47] Id.

[48] Id.

[49] Id.

[50] Id.

[51] Id.

[52] Id.

[53] Id.

[54] Press Release, Youguan Line ji Facebook Liuchuan Sanyue Sanshiyi Ri Tongjian Chuzui Hua Siyue Dama Hefa Hua (有關LINE及FACEBOOK流傳「三月三十一日通姦除罪化？四月大麻合法化？」之假訊息澄清新聞稿) [Press Release on the Clarification Regarding Rumors on Line and Facebook that the Court will Decriminalize Adultery on March 31 and Legalize Marijuana in April], Da Faguan Shuji Chu(大法官書記處) [Secretary General of Grand Justices] (Apr. 6, 2020), http://cons.judicial.gov.tw/jcc/zh-tw/contents/show/zsfqnqtozfngnrpg.