Repeal of anti-adultery law expanded freedom of sexual self-determination

Adultery is a sin that has existed as long as human history. Adultery is listed as the seventh sin after murder in the Ten Commandments from the Old Testament. Even in Korea’s first kingdom of Gojoseon, adultery was prohibited by the eight fundamental laws. Korea’s Constitutional Court ruled Thursday that the anti-cheating law was unconstitutional in a 7-2 decision. The court announced reasons behind the ruling that “the anti-adultery law violates the anti-overrestriction principle, and infringes the public’s sexual self-determination and their right to privacy guaranteed by the constitution.” The court’s decision reflects changes of social perception on the marriage and the fidelity.

Presiding justice Park Han-cheol and other four judges presented the majority’s opinion that “maintaining a marriage or a family must be decided by free will and affection of an individual, not be forced by law.” Other two judges who supported this view, Kim Isu and Kang Il-won, pointed out that punishing the unmarried adulterous partner alone or punishing the act of adultery only by imprisonment violates the constitution. On the contrary, the two judges who voted in opposition said, “Repealing the anti-adultery law can expedite dissolution of the institution of marriage and the family community. It is also concerned that human rights and welfare of the weak and children in a family might be infringed.”

With this ruling by the Constitutional Court, the anti-cheating law enacted by legislation of the penal law in 1953 has gone into the history in 62 years. Few nations on the globe uphold the anti-cheating law. Regardless of existence of the anti-adultery law, it is still true that the act of adultery leaves emotional damages to a spouse and can destroy a family. Marriage provides a duty to maintain fidelity to the spouse and the person in a marriage must faithfully fulfill the duty. However, the Constitutional Court has decided that it is too excessive for the national authority to intervene and impose criminal responsibility to a person who violates the marital duty, putting aside the responsibility of compensation for damage in a civil case.

It is hard to say that the law works as a system to protect the matrimonial relationship. In fact, the adultery can become a criminal issue when the marital relationship breaks up and an individual appeals to the law seeking punishment of the unfaithful spouse. Some judges who viewed the law as a violation of the constitution said, “There is little possibility to blame the act of adultery performed after the marital relationship broke up.” In the past, the anti-adultery law had been used as a method for women, socially disadvantaged in most cases, to get more compensation or property. But now, the anti-adultery law has lost its ground since investigation without detention or probation are the most commonly used in adultery cases. With abolishment of the anti-cheating law, it has become impossible to collect evidences for a divorce suit by receiving assistance from an investigative agency. As it can put women from socially vulnerable class at a disadvantage, there must be countermeasures to help the socially disadvantaged, such as imposing civil liabilities, compensation for damages, claim for division of property, or lawsuits for child custody.

As a minority opinion from the court judges, there was a concern that throwing out the anti-adultery law could bring about sexual promiscuity. However, there is no statistics that sexual promiscuity has gone worse due to abolishment of the anti-cheating law. The global trend is to expand individuals’ freedom for sexual self-determination. Repealing the anti-adultery law also has a meaning that it modernizes the institution of marriage by removing outdated constraints.