The Council of Grand Justices or Constitutional Court of the Republic of China (still Taiwan’s official name) is the judicial institution in charge of, among other major functions, interpreting the Constitution. On May 29th, 2020 it issued constitutional interpretation number 791, declaring unconstitutional Article 239 of the criminal code and putting an end to 85 years of criminal punishment for adultery.
14 out of 15 the grand justices ruled that the old legislation restricted the right to sexual autonomy and breached the principle of proportionality, considering it null and void immediately. It was no longer “essential in order to safeguard marriage, the family system and the social order,” as the council had determined in Interpretation 554 of 2002, and nowadays violated basic human rights protected by Article 22 of the Constitution.
Only Wu Chen-huan, Political Deputy Minister of Justice from January 2012 until September 2015, expressed a different view: while adultery was indeed an act belonging to the private sphere, marriage involved many aspects of public interest and criminal punishment for adultery helped safeguard monogamy.
This change of mind is also the result of feminist lobbying by groups like the Awakening Foundation, which had campaigned for the abolition of the impugned provision for decades. They claimed that although the law was ostensibly gender-neutral, women were actually more likely to be convicted than men, and that it disadvantaged victims of sexual assault. In consequence, the National Congress on Judicial Reform, convened by Taiwan´s first female President Tsai Ing-wen in February 2017 after nine months in power, concluded that such a step was long overdue. Ironically, a significant number of married Taiwanese women never agreed with that demand, as they hope that their estranged husbands would somehow feel bounded by their broken marriages.
In Taiwan, the recent ruling doesn´t follow mainstream public opinion anyway. Although opposition is decreasing, most opinion polls before and after the interpretation show that a clear majority remains opposed to it: In 2013, more than 80%, in 2015 85%, in 2017 almost 70%, and last month over 65% of respondents were against it. Sarcastic opinions, such as “Adulterers are the greatest beneficiary” or “People sleeping with another person’s spouse no longer have to worry about imprisonment as long as they have money to pay civil compensation” may be irrational, but reflect pretty common thinking.
At the same time, the interpretation raises the question of whether the justices are too powerful and have overruled the Constitution based on their personal values and ideals. Ideologies do affect their judgement, as Interpretation No. 748 of May 2017 showed: same-sex marriage was equally legalized against the clear will of a rather conservative society.
The growing gap between elite legal professionals and the average citizen underscores the importance of including different groups in judicial procedures by the implementation of a jury or a lay judge system while social context is duly considered. That would be more democratic, rather than enticing the justices to overstep their duties and detach themselves from the public due to an overly progressive viewpoint. After all, most Taiwanese attach great importance to loyalty in marriage.
Now that such a crucial decision has been taken, the Civil Code should be amended in a way that adulterers are to be held accountable for damaging the aggrieved party’s family, and increase compensation in its favor. At the same time, conditions for petitioning courts to grant a divorce need to be relaxed. The aggrieved party should get custody of the children in any case, and the adulterer requested to pay a reasonable and feasible alimony. However, the prevention of future infringements looks more complicated.
The decriminalization of adultery is not tantamount to legalizing it, as aggrieved persons can still claim their rights under civil law. Allegations that in Taiwan the Constitution safeguards the right to be disloyal to one’s spouse are simply false. Insufficient dialogue among the involved parties has helped to spread such erroneous perceptions. To avoid similar misunderstandings in the future can be considered Tsai’s homework.
The last European nations to decriminalize infidelity were Austria in 1997 and Romania in 2006. South Korea did so in 2015 and India in 2017. In East Asia, only in the strongly catholic Philippines it´s illegal to this day.
Non-Muslim governments are no longer supposed to intervene in intimate relations. Marriage should be sustained by love and not subjected to criminal punishment. Measure morality by law is a difficult task. So in a way the development in Taiwan follows international trends, though it’s detached from the mindset of ordinary Taiwanese. Therefore, liberal politicians shouldn’t obtrude their fancy ideas on their voters.