Taiwan is the first country in Asia to have legalized gay marriage, but it also remains one of the few where adultery is still a punishable crime—that is, until last Friday.

On May 29th, the Justices of the Constitutional Court convened and struck down the law criminalizing adultery, declaring it unconstitutional.

Article 239: 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.

The law’s original intent was to protect the institution of marriage and to maintain social harmony.

With divorce on the rise, and marriage becoming less popular, it might seem that the continued criminalization of adultery is more necessary now than ever.

But, upon closer examination, it quickly becomes obvious that this law fails to live up to its purpose and may even pose as a threat to important individual rights and principles such as proportionality, privacy, and autonomy.

Inequality in implementation.

On the surface, Article 239 does not appear to discriminate between the sexes. In practice, however, women disproportionately bear the brunt of prosecutions.

This is not because women cheat on their husbands more than men do their wives.

Rather, the feminist ‘Awakening Foundation’ observes that women are more likely to forgive their cheating husband while insisting on pressing charges against the mistress.

This is especially true in cases where the husband is the primary breadwinner of the household – and, in Taiwan, this accounts for the majority of cases. Conversely, men, on account of their financial independence and inherent status in a patriarchal society, often press charges against both their cheating wife and her lover.

In this instance, women tend to be punished more often for a crime that is equally prevalent in both sexes. 

In addition, the adultery law has, at times, been exploited in perverse ways to pressure victims of sexual assault to not file charges.

If the victim is assaulted by someone who is married, filing charges will almost certainly open him / her up to the crime of adultery, even as the victim is finding it difficult to prove the assailant’s abuse. 

Should the state regulate sex to protect marriage?

At the same time, critics of the adultery law also question the fundamental premise upon which the Article rests: that the state should regulate marital relations. 

According to Chief Justice Hsu Tzong-li, the criminalization of adultery is itself a “violation of a person’s sexual autonomy” and a “serious invasion of personal privacy.”

Indeed, even though the law ought to guarantee the right to marriage and the right to divorce, the way in which a marriage actually plays out is a personal matter, and it would be an overreach if the state attempts to intervene in a citizen’s marital life. 

Practically speaking, too, punishing a spouse by pressing criminal charges in court is certainly not a healthy and sustainable way to deal with emotional loss and marital relations. 

Addressing the concerns of conservatives.

Not all in society are convinced that adultery should be decriminalized, however.

Most notably, Justice Wu Chen-huan wrote in his dissenting opinion that this ruling would harm the public interest by putting the institution of marriage at risk. For Wu and many of the conservative community, the family unit, consisting of one man and one woman traditionally, is the building block of a well-functioning civil society. 

Yet, even if Article 239 functions to protect the integrity of the family unit, it does so only superficially.

Intercourse is but one part of marriage, and it says very little about the child-rearing aspects of the household.

Oftentimes, a single parent can do a better job raising a child than two parents tied together by an unhealthy relationship.

Moreover, it is a fallacy to think that the abolition of Article 239 amounts to an endorsement of adultery and polygamy; instead, marital issues will be returned to the realm of civil law—the rightful place for individuals to sort their grievances and settle a dispute. 

In the end, the decriminalization of adultery is a major step forward for women’s rights and progressivism in Taiwan.

That said, Taiwan has only caught up with most other liberal societies in doing so, and much important work remains to be done in combating the various systematic and oftentimes unconscious forms of prejudice against women. 

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