[Opinion] Constitutionality of Adultery Law

The Constitutional Court narrowly upheld yesterday adultery as a criminal offense. Five of the nine justices, however, took issue with the verdict, saying imposing criminal charges against adulterers violates the Constitution or does not conform to basic law. The court’s verdicts on adultery illustrate the changing public mindset on sex. Previously, the majority of the justices ruled in favor of the adultery law –- six to three in 1990 and eight to one in 2001.

The Justice Ministry, which sought the abolition of punishment for adultery in 1992 while revising the adultery law, had to back off to avoid mounting criticism from women’s advocacy groups. The court ruled the adultery law constitutional in 2001 as well, but signaled a change by saying, “The legislature should seriously consider the abolition of punishment for adultery.” Criminalizing adultery is against global trends and has become ineffective in playing the role of a guardian angel for women. With the increasing number of extramarital affairs by women, the law has lost legislative justification for protecting women.

According to figures from the Supreme Prosecutors` Office, indictments for adultery plunged from 29.7 percent in 1984 to 14.4 percent in 2004. That for women`s adultery was 15.4 percent in 2004, slightly higher than the overall indictment rate of 14.6 percent. This is one big reason that women’s groups, which had strongly supported the adultery law, have begun to oppose it. Civil liability on adultery will remain, however, even if the adultery law is abolished. Adultery can be judicial grounds for divorce and alimony.

Soon after the Constitutional Court’s ruling, the Korean Women’s Association United in a statement said, “We would like to express our concern that the adultery law is hampering the opportunity to draw up practical alternatives and change the public mindset by exclusively leaving the trust and responsibilities of a married couple to the government to punish.” In advanced Western countries, the legal logic that the government does not need to meddle in couple`s relations is prevailing. The changes in the Constitutional Court’s rulings suggest that the adultery law will eventually be abolished. It should also be noted that faith and loyalty between spouses remain as the principles of a peaceful family.

Editorial Writer Chung Sung-hee (shchung@donga.com)