hankyoreh

Feb. 26. (by Kim Seong-gwang

A statute criminalizing adultery, which has been used as a “scarlet letter” against many South Koreans since the practice was first outlawed during the Korean Empire in 1905, has been abolished.

Changing times, and the belief that individual freedoms should be respected, overcame the traditional rationale of guarding marriage and sexual morality.

The Constitutional Court judges ruled seven to two on Feb. 26 that the criminalization of adultery by Article 241 of the criminal code, which made the act punishable by up to two years in prison, was unconstitutional.

The same court had upheld the statute’s constitutionality four times since its founding. With the fifth ruling, it reached a different conclusion, and the statute was immediately abolished.

staff photographer)

Of the seven justices who declared the law unconstitutional, five of them - president Park Han-chul, Lee Jin-sung, Kim Chang-jong, Cho Yong-ho, and Seo Ki-seog - said that the voluntary sexual activities of adults “belong in the realm of personal freedom.”

“It infringes on the right of sexual self-determination and privacy and freedoms in one’s personal life for the state to interfere and prescribe punishment in the private sphere of sexual life, which should be a matter for sexual morality,” the justices argued.

In response to arguments in favor of upholding the law, the justice said the “preventive effect is questionable compared to the rate of punishment for adultery and the degree of social condemnation.”

“The obligation of fidelity between married couples and protections of female spouses may confer disadvantages in terms of divorce claims, damage claims, partitioning of assets, and raising of children,” they added.

The justices also determined the statute “excessively restricts basic rights, such as the public‘s right to sexual self-determination, without achieving the public interest of protecting the system of marriage.”

Justice Kim Yi-su, who also voted the law unconstitutional, said the reason for its existence had to do with the possibility of restoring marital relations when a couple continues living as a family even after one spouse has committed adultery. However, he ruled that the statute in its current form violates the Constitution by excessively punishing even cases of adultery when marital life has effectively ended, as with couples who have long been living apart.

Justice Kang Il-won gave an interpretation that essentially found the law itself constitutionally acceptable, but ruled against its constitutionality because of the specificity of the prison time punishment and the principle of proportionality.

“Punishing the crime of adultery is not unconstitutional per se, and the need for legal regulation is recognized,” he argued.

In a dissenting opinion arguing for the law’s constitutionality, justices Lee Jung-mi and Ahn Chang-ho, said adultery “is not included the sphere of protection of an individual‘s sexual self-determination because it has a destructive effect on the family community.”

“The legal perspective [on adultery] as harmful to the social order and an infringement on the rights of others is still valid,” the justices said.

“Abolishment of the crime of adultery could destroy one of our basic pillars of sexual morality, resulting in degraded sexual morality throughout society and causing disorder in that morality,” they continued.

Constitutional Court hearings on the adultery law

An estimated 100,000 people have been criminally punished for adultery since the South Korean criminal code was enacted in 1953. A total of 52,982 were prosecuted in the thirty years between 1985 and January, with 35,356 of them subjected to arrest. Of these, the 5,466 (including 22 arrestees) who were prosecuted after the last constitutionality ruling on Oct. 30, 2008, are eligible to request retrial. All ongoing adultery cases in courts are to be withdrawn.

In a joint statement, the Korea Sexual Violence Relief Center, Korean Women’s Associated United, and Korea Women‘s Hot Line said they “respect the unconstitutionality ruling,” but called for stronger measures to hold spouses civilly accountable for destroying marriages.

“We need [legislative] measures to hold spouses strongly accountable in civil terms when they bear responsibility for damage to the system of marriage,” the groups said.

By Lee Kyung-mi, staff reporter

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