Adultery law and modern society

By Mathias Specht

The recently reported case of a foreign employee’s extramarital relationship has brought back into attention Korea’s still-existing adultery law, with the victim (notably not his wife but the person the man had an affair with) feeling deceived and demanding for him to be laid off and harsher laws to be introduced to extend to foreigners.

The last time I personally occupied myself with the issue was during the widely publicized trial and subsequent conviction of famous actress Ok So-ri for adultery in 2008. This time, the two ingredients that have been added to the debate are first, whether current laws or their enforcement need to be tweaked to facilitate the punishing of foreign citizens and second, how employers respond to the lack of faithfulness of their workers.

The idea of the government punishing citizens for marital infidelity seems to instinctively evoke images of backward or uncivilized societies, characterized either by theocratic oppression or a misogynist worldview. While there are indeed places which theoretically have adultery laws in place and do not match this description (it’s still on the statue books of the states of Michigan and New York, for instance), they are usually not enforced there.

Practical reasons for this include the fact that while adultery can be seen as a form of contract breach (however only with regards to one’s spouse, not lover) and probably also causes a degree of harm to society at large, it is hard to enforce and courts are overloaded as it is.

On a deeper level however they also often work against their original raison d’être. That is, while support of such laws claim that they protect women’s rights in marriage, in actuality they are more commonly used against them. This certainly seems to continue to be the case in Korea as well. To verify this, it shall suffice to note that from its inception in 1905 until 1953 the Korean adultery law merely covered the punishment of women. But even after 1953 it hardly serves citizens of either gender equally.

A 2010 statistic regarding gender distribution in adultery crimes conducted by the Ministry of Justice for example shows that 47.2 percent of the perpetrators are female. Let’s compare this to an interesting survey from the Seoul University Institute for Social Development and Policy Research in 2010, finding that the average Korean man purchases prostitution services 2.6 times per annum (while also noting that based on estimates of the revenue in this industry the actual number is probably five times higher) and that 49 percent of the respondents have visited a prostitute at least once (compared to 7 percent of U.K. citizens).

While I do not have similar figures for women, it seems like a defendable assumption to say they probably are not higher. Certainly not high enough to explain the near 50/50 distribution in filed legal complaints. As the last piece of evidence should serve a 2007 survey that was publicized among others through the BBC, showing that 68 percent of Korean men commit adultery while the figure for women is only 12 percent. Considering this apparent mismatch between who commits adultery in this country and who actually gets prosecuted for it, one might almost go so far as to think of the Korean adultery law as institutionalized gender discrimination.

But maybe it simply does not make sense for Korean wives to press charges against their unfaithful husbands, because they have nothing to gain. Especially not since while a partner’s disloyalty might work in favor in case of a divorce, divorces hardly work in favor of woman in Korea.

In conclusion the debate on how to deal with adultery in a modern society boils down to making a distinction between what is morally reprehensible and what should be illegal. From my point of view adultery is certainly neither morally correct nor a victimless ``crime” but it still does not warrant being outlawed and policed by the government.

Beyond this, however, it is important in a democratic society to frequently review laws in order to make sure they continue to serve the purpose they were put in place for and are not abused.

The writer is an MBA graduate of Yonsei University and founder of the Korean company Stelence International. He is currently writing a book about Korea and can be reached at mathias@stelence.com.