Time to Kiss Goodbye to Taiwan’s Adultery LawsLike a few other laws, the criminalization of adultery violates international human rights but remains in force due to purported popular support
Last week, the Constitutional Court of Korea ruled that the 1953 law criminalizing adultery in South Korea was unconstitutional. This ruling was expected, as when the Court examined this exact issue in 2008, five Justices voted to declare the law unconstitutional, but it ultimately survived because Korean law mandates that six of the nine Justices need to agree in order to strike down a law.
This development leaves Taiwan as the only East Asian country and one of a handful worldwide that still retains a criminal adultery statute. According to Criminal Code 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.”
Criminal adultery law enjoys overwhelming support in Taiwan
Criminal Code Article 239 was upheld as constitutional in 2002 by Taiwan’s Justices of the Constitutional Court in Judicial Yuan Interpretation No. 554. In that case, the Court held that “the freedom of sexual behavior is inseparably related with the personality of individuals, and every person is free to decide whether or not and with whom to have sexual affairs. Such freedom is, however, legally protected only if it is not detrimental to the social order or public interest.” “Thus,” it concluded, “the freedom of sexual behavior is subject to the restriction put on it by marriage and the family system.”
The Court found that criminalizing adultery was a compelling state interest because the prohibition upheld the institution of marriage and the family unit. It also held that the proscribed punishment was proportional to furthering this interest because the maximum sentence is only one year and it is an Antragsdelikt offense, meaning criminal prosecution can only commence with a complaint by a private individual, in this case the aggrieved spouse. The Court reiterated the constitutionality of criminal adultery just a year later in Judicial Yuan Interpretation No. 569.
Support for criminal adultery is high among the Taiwanese population. In a 2013 public opinion poll conducted by the Ministry of Justice, 82.2% of respondents opposed decriminalizing adultery while only 16.8% supported abolishing the law. In a follow-up survey that asked whether they would support eliminating the crime if civil penalties were increased, 77.3% of those surveyed still answered in the negative.
Look to the Constitutional Court to repeal the law
Due to the overwhelming popular support of the criminal adultery statute, it is unlikely that the Legislative Yuan will have the political will to repeal the archaic law. Thus, to have any hope of decriminalization in the near future, activists will need to rely on the Justices of the Constitutional Court to revisit the issue and again decide on the law’s constitutionality regardless of popular sentiment.
There is wariness toward this approach, stemming from the difficulty for outsiders to predict how individual Justices would rule on any issue, save for a couple of prominent academics. As the judicial confirmation process — nomination by the president and approval by the legislature — is relatively short, superficial, and has often focused on the nominees’ financial backgrounds and dual citizenships, it has been hard to gain any understanding of the judicial philosophy of the Justices.
Understanding the philosophy of Justices via a U.S.-style confirmation process
To combat the problem, the judicial confirmation process for Justices nominated to the United States Supreme Court may offer useful guidance for Taiwan. In the U.S., confirmations have become a central part of the political process closely monitored by the media and citizens, a practice that started with the failed confirmation for Judge Robert Bork in 1987 and solidified by the 1991 hearings for Justice Clarence Thomas in which his history of sexual harassment became the focus.
Similar to Taiwan, the U.S. president’s nominates candidates for the Supreme Court and the Senate confirms or rejects. In the U.S., the nominees are scrutinized by American media, and he or she, along with witnesses, are questioned extensively by members of the Senate Judiciary Committee. The nominees usually decline to state how they would rule in specific cases, but their answers do provide insights into the legal principles that guide their approach to the law. This gruelling process creates some transparency in the Justices’ thought processes, insights which allow Senators to make an informed decision on whether to confirm. A by-product of this process is that it becomes easier to predict how the Justices would rule on various issues since the hearings often go into great detail.
This is not to say that the American judicial confirmation process is without fault, as it is often criticized as being overly politicized and partisan. The ideal long-term solution for Taiwan should be the adoption of a more-inclusive appointment process like the ones for the Constitutional Courts in South Africa or South Korea. Nevertheless, given the constraints of the current process in Taiwan, it may be advisable to learn from the American confirmation process where Justices are scrutinized publicly and their legal philosophies brought to the forefront.
The concern that borrowing this highly politicized process would further politicize the confirmation hearings in Taiwan is valid, but this legal transplant would actually be an improvement to the type of politicization that currently occurs. The politicization in Taiwanese judicial appointments now is based on party membership. By bringing judicial philosophy to the forefront like in the U.S., the politicization would cease to be about party ideology but about different notions of legal interpretation and approaches to important legal questions. Though the division would most likely still end up being split by party, the underlying disagreement becomes substance-based, which is arguably more defensible than one that is purely based on whether one is pan-green or pan-blue.
Upcoming vacancies in Taiwan
As four Justices are set to retire in September of this year due to the expiration of their terms, President Ma Ying-jeou (馬英九) has the opportunity to fill these vacancies to solidify his legacy. Lawmakers should not give him a free pass and need to seize this opportunity to adopt the American judicial confirmation approach and scrutinize the nominations based on judicial philosophy. They must demand that nominees explain their positions on issues such as privacy, sexual freedom, cruel and unusual punishment, right to life, separation of powers, role of the government, and fundamental rights, and this must be done publicly with the aid of the media in order to include the people of Taiwan in the process. At the very least, the public would have a better understanding of the confirmation process and the new Justices.
With a better understanding of the philosophy of the Justices, activists would also be able to assess the judicial climate and coordinate advocacy strategies. If a majority of the Court were sympathetic to a certain issue, such as decriminalizing adultery, then successive test cases must be filed for judicial interpretation. If not, it would be prudent to refrain from seeking interpretations lest bad precedence be made.
Perhaps a more public confirmation process based on judicial philosophy may not even be necessary for the issue of criminal adultery, as the current composition of the Court is different from the one that handed down Interpretations No. 554 and No. 569, and the legal landscape has drastically changed. As the criminal adultery law disproportionately affects women, it can be struck down with relative ease using the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which Taiwan signed onto in 2009 and 2011 respectively.
However, criminal adultery is only one of a host of Taiwanese laws that violates international human rights but still remains in force due to purported popular support. In an era where transparency and accountability in government are touted, the Judicial Yuan cannot be exempt. The transparency provided by a more public judicial confirmation process would lead to a Constitutional Court that is accountable not to the people, as the other branches of the government should be, but to sound legal reasoning and notions of justice that respect fundamental human rights and are free from the tyranny of the majority.
M. Bob Kao is a PhD Researcher in law at Queen Mary University of London and a former non-profit attorney in California. He received his JD from the University of California, Berkeley and LLM from University College London. He blogs at Taiwan Law Blog.