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| Justices of the Constitutional Court are seated at its courtroom in Seoul to announce their decision to decriminalize adultery, Thursday. / Yonhap |
Constitutional Court rules 7-2 in favor of abolishing 62-year-old legal relic
By Kim Rahn, Lee Kyung-min
The 62-year-old "anti-cheating law" has been abolished.
In a decisive seven-to-two vote, the nine-member Constitutional Court ruled Thursday that Article 241 of the Criminal Code which makes adultery a crime was no longer valid. The ruling took effect immediately.
This was the court's fifth review of the controversial clause, with previous rulings between 1990 and 2008 all supporting it.
"Punishing people for committing adultery infringes on people's sexual self-determination and the freedom for privacy. So the clause is unconstitutional," the court said in the landmark ruling.
Previously, under the clause, those convicted of adultery could be sentenced to up to two years in prison.
With the abolishment of the clause, adultery charges on 5,466 people accused since the last Constitutional Court's ruling on adultery on Oct. 30 in 2008 have been annulled. Those convicted can also apply for retrials, and those jailed can demand compensation from the state.
Of the 5,466 people, only 22, or 0.4 percent, were detained, as most people received suspended terms — this was why many experts doubted the effectiveness of such punishment. Sentences have become lighter and last year 892 people were indicted but none were put behind bars.
The ruling will exempt those accused of adultery from criminal charges, but this does not mean they avoid all legal responsibility. Adulterers or adulteresses can still face civil damage suits.
The court said public recognition on adultery has not been in line with the law. "Maintaining a marriage and family should depend on individuals' free will and love," the court said, adding the law has often been misused in divorce suits and for blackmail.
Some of the justices pointed out that a single person who had an affair with a married person should not be punished by Criminal Law, and that it is inappropriate to issue jail sentences only to the violators.
Korea was one of the few nations that listed adultery as a criminal offense.
Since the law's inception in 1953, controversy has raged whether it was appropriate to list adultery as a criminal offense.
The court previous rulings turned down petitions to abolish it, saying sexual self-determination should be limited for social order.
In the last ruling in 2008, five justices found it unconstitutional — the first time the court's vote favored removing the clause — but they were one vote short to change the law.
Public opinion was split over the ruling.
Conservative groups strongly criticized the decision, claiming social morality was being compromised, while liberal civic groups and women's right advocates welcomed the removal of the clause.
Christian groups opposed the decision saying the sanctity of spousal duty will be put at risk.
"Monogamy is the most important glue that holds a marriage together. And if there is no punishment for those who cheat, the other spouse will be left helpless and it will ultimately encourage the dissolution of the marriage. Also, social morals are put at great risk. Not being punished by a criminal conviction virtually has the implicit effect of declaring that the act is not blameworthy," a member of Christian rights group said.
"Also, we must consider the other risks such as the right to a safe and stable marriage being compromised. For example, let's say the accomplice, who the cheated spouse had an affair with, has a family. Their life would be destroyed too. The law has so far functioned as a deterrent for adultery, but now that function is gone," he added.
"The decision shows the country is being derelict in its duty to keep society safe and in order."
However, women's rights group welcomed the decision saying it would improve their autonomy in general.
"The whole idea of punishing adultery has long been applied in discriminatory manner to women rather than men," said an official from women's rights group Womenlink.
"It is based on a belief that prioritizes women's duty to be faithful to men no matter what. Those are conservative and patriarchal family-oriented values that have long held women to a more scrupulous standard than men. Through the court's decision, women are one step closer to achieving equal rights. The meaning of the ruling is more than just letting those that cheat off the hook," she said.
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