The One Not Loved Is the Other Man/Woman?A Perspective on the Decriminalization of Adultery Based on Judicial Interpretation No. 791(Taiwan)

Tiffany Hsiao

The Council of Grand Justices of the Judicial Yuan declared on May 29 via Judicial Interpretation No. 791 (Effect of the Offense of Adultery and Withdrawal of Charges)[1] that Article 239 of the Criminal Code, which does not meet the principle of proportionality under Article 23 of the Constitution, shall become invalid on the promulgation date of this interpretation.  In addition, Article 239 of the Code of Criminal Procedure, which violates the gist of equal right protection under Article 7 of the Constitution, and the proviso of Article 239 of the Criminal Code, which loses its basis since it was declared unconstitutional by this interpretation, also lost their validity on the promulgation date of this interpretation.  Since then, the lingering controversial issue of whether the crime of adultery is unconstitutional has been legally settled, but there are still waves of discussion in society for and against this interpretation.

With respect to the two issues in this matter, the Reasons of Judicial No. 791 stated as follows:

1. The Provisions of Article 239 of the Criminal Code are unconstitutional:

A marriage system carries social functions, such as maintaining human family order and gender equality and raising children.  In addition, the relation of permanent union resulting from marriage also has the function of enabling a couple to support and depend on each other spiritually, emotionally, and materially.  Therefore, in order to protect marriage, the state can formulate relevant regulations to oblige a couple to the performance of their fidelity obligation.  Although Article 239 of the Criminal Code penalizes adultery and fornication with criminal penalties, still its objective is to oblige the spouses to the performance of their mutual fidelity obligation in order to sustain the marriage system and individual marriages.  Therefore, such objectives are justifiable.

Based on the general crime prevention function of punishment, this article penalizes adultery and fornication with criminal penalties, which have a certain deterrent effect on such behavior.  In addition, although the fulfillment of marital fidelity is an important part of marriage, still it is not the same as the marital relationship itself.  Although a spouse’s breach of marital fidelity may jeopardize or destroy the intimate relationship between couple, it does not necessarily impair the continuity of the marital relationship.  Therefore, although it is difficult to conclude that this article, which penalizes adultery and fornication with criminal penalties, does not contribute to the achievement of its legislative objective of maintaining the marriage system or individual marital relationship at all, still the extent of appropriateness of the means is low.

Based on the principle of modesty and restraint in criminal law, the state should, in principle, limit the criminal punishment of illegal acts to those acts which undermine public interest and are anti-social in nature, and should not include every single act that hurts the feelings of individuals and pertains mainly to private disputes over rights and obligations.  Although the marriage system is recognized and protected under the Constitution for all kinds of social functions, still, as mentioned above, the social functions of the marriage system are gradually becoming more and more relative, and the constitutionally guaranteed freedom of marriage without arbitrary state interference is increasingly valued, including the right of the individuals to decide for themselves “whether to marry,” “whom to marry,” “whether to divorce by mutual consent,” and whether to form and manage their marital relationship with their spouses (e.g., intimate relationship between a couple, economic relationship, lifestyle, etc.).  A marriage is established based on mutual affection, and whether it can be maintained harmoniously and satisfactorily depends on the efforts and commitment of the couple.  Although adultery is a violation of marital commitment by one of the couple by undermining the obligation of fidelity in the marital relationship and is harmful to the other spouse’s feelings and expectations of the marriage, still this does not apparently impair public interest.  Therefore, this calls into question whether it is necessary for the state to penalize adultery with criminal penalties.

Although this article is not entirely unhelpful to the attainment of its legislative objectives, the public interest that can be realized by deterring adultery through criminal penalties is not significant.  On the contrary, this article, as a normative provision on criminal penalties not only directly restricts the people’s sexual autonomy, but also definitely interferes with people’s privacy through the pursuit of liability and trial.  Therefore, the extent to which this article interferes with the sexual autonomy and privacy of the actors and the resultant disadvantages are overall significant.  In addition, although the state’s punishment of a spouse with criminal penalties for violating the obligation of marital fidelity obligation  somehow fulfills the function of “punishing” the spouse who violates the obligation of marital fidelity, still the state’s intervention in marital relationship  may, on the contrary, have a negative impact on the marital relationship.  Therefore, the harm caused by the restriction under this Article apparently outweighs the interests it is designed to protect and thus is unbalanced.

In summary, this article’s restriction on the sexual autonomy guaranteed by Article 22 of the Constitution is inconsistent with the principle of proportionality under Article 23 of the Constitution and shall lose its effect on the day the Interpretation is released.

2. The proviso of Article 239 of the Code of Criminal Procedure is unconstitutional:

The legislative intent of this article is to enable the spouse who has been victimized by adultery to seek the continuation of the marital relationship by the effect of dropping the charges against the adulterous spouse.  However, whether or not the effect of dropping the charges against the adulterous spouse is extended to the fornicator has no substantive connection with the actual continuation of the marital relationship.  When deciding whether to drop the charges against the adulterous spouse, the victimized spouse usually has already decided whether to continue the marital relationship in the future.  As far as the victimized spouse is concerned, the subsequent pursuit of liability and punishment of the fornicator oftentimes only has the effect of retaliation and lacks actual connections with the continuation of the marital relationship.  Moreover, in the pursuit of the fornicator’s liability and in the course of trial, the court often, out of the need to discover the truth, summon the adulterer to testify in court as a witness for cross examination so that the court may impose a penalty on the fornicator with relevant facts recorded in the criminal decision in detail for public disclosure.  In the process of the trial, the rift in the marital relationship may be deepened, and this may not necessarily have any actual connection with the restoration of the marital relationship.  Therefore, the discrepancy in pursuing the liability of the adulterer and fornicator, who are essentially joint offenders under this article, is caused by their different identities.  As a result, the fornicator may ultimately be solely liable for criminal punishment, while the adulterer can be exempt from criminal liability.  Since the discrepancy in treatments lacks actual connection with the above legislative objectives, this certainly runs counter to the gist of equal rights protection under Article 7 of the Constitution.

In addition, the application of this provision is premised on the constitutionality and validity of Article 239 of the Criminal Code.  Since Article 239 of the Criminal Code is declared unconstitutional, the provision at issue certainly has lost is legal basis.

In conclusion, since the proviso of Article 239 of the Code of Criminal Procedure is contrary to the gist of Article 7 of the Constitution, which guarantees the right to equality, and since Article 239 of the Criminal Code has been declared unconstitutional by this Interpretation, the proviso shall also lose its effect after the day this Interpretation is released.

As a result of the two controversial issues in this case, the Interpretation also stressed that the state has an obligation to eliminate sex discrimination and promote substantive equality between the sexes.  It should be noted that this interpretation merely pertains to “decriminalization.”  In the event of an adultery case in the future, the tort of “infringement of spousal rights” will still entail relevant “civil” liabilities.

In this judicial interpretation, Tzong-li Hsu, President of the Judicial Yuan and a Grand Justice, publicly declared the results of the constitutional interpretation in the Constitutional Court along with all Grand Justices with one Grand Justice issuing a dissenting opinion and nine Grand Justices issuing concurring and partially concurring opinions.  The heated discussions in society also reflect how controversial and eye-catching this Interpretation is.

Some naysayers believe that the finding of the Grand Justices that the adultery offense is unconstitutional is outrageous, exaggerated and not in line with the following expectations of the people: “The Grand Justices advocate sexual autonomy over marriage and family, but people who desire sexual autonomy or personal autonomy should not get married, since marriage involves mutual fidelity and a mutual bond.  The results of the constitutional interpretation will cause the culture of cheating and adultery to go further out of control.  In addition, the spouse who is hurt in a marriage will be even more disadvantaged, because the law does not stand on the side of the legal spouse and will make it impossible for him/her to seek compensation.  Without the criminal law resource, the compensation that can be sought after a marriage breaks down will further decline, and the disadvantaged will be even more disadvantaged.”  The Awakening Foundation, a women’s organization that has advocated the decriminalization of adultery for a long time, agrees with the interpretation, suggesting that although they can understand that the Grand Justices’ declaration that the adultery offense is unconstitutional has dealt a huge blow to the spouses who have been betrayed and hope to seek justice through the criminal punishment of adultery, still the foundation has strived to decriminalize the adultery offense, not due to its support of adultery but to its profound knowledge that criminal punishment is not a panacea and that it is impossible to compel the adulterous spouse to maintain the marital relationship through the Criminal Code.  Most prosecutors in practice also consider it difficult to maintain a marriage through the adultery offense, and that there is no real benefit from criminal punishment, which should be abolished.

Perhaps as Supreme Court Justice Chang-Chin Hsu said in his book, Decriminalizing Adultery – Case Studies and Empirical Analysis, the decriminalization of adultery is necessary, but many women worry that decriminalization will encourage men to have affairs, and women will no longer have any leverage to protect their own rights.  Therefore, in order to decriminalize adultery, it is necessary to dispel concerns and propose accommodating measures such as increasing the amount of damages for adultery and divorce to protect the rights of disadvantaged spouses.   In the face of an injured marital relationship, what is really needed are supportive resources such as psychological counseling emotional education, and other programs such as gender equality education, equal negotiation to promote intimate relationships, and other programs.  The Ministry of Justice and lawmakers, who can wield state power, should immediately carry out the protection of the people’s basic rights and continue to promote policies and corresponding support measures that are conducive to equality in marriage and family based on their authority.

[1] Judicial Interpretation No. 791 of the Judicial Yuan: