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(News focus) Anti-adultery law re-emerges as hot social issue
By Shin Hae-in
SEOUL, Feb. 10 (Yonhap) -- Does the government have the right to interfere in the private lives of people in the name of law? If so, can it go as far as punishing an individual for marital infidelity?
This somewhat hackneyed debate over the criminality of adultery has been rekindled in South Korea, after a well-known actress filed a petition with the Constitutional Court to challenge the constitutionality of the adultery clause in the country's criminal law.
Ok So-ri, indicted on adultery charges filed by her husband for alleged affairs with a foreign chef and a singer, claims that the adultery clause infringes on the right to privacy and the right to decide his or her sexual relations.
Some say she's right, but a majority of citizens here appear to be critical of the actress's conduct.
South Korea is one of the few countries that have an adultery clause in their criminal law.
According to the clause, a married person who has an affair can be sentenced to a maximum of two years in prison, without the option of a fine.
A few countries, such as Switzerland and Austria, have anti-adultery laws, but most countries including the United States and Japan have abolished similar laws, putting more priority on individual freedom than preservation of the so-called social order.
Amid growing claims that the government has no right to interfere in the private lives of married couples, several judges and lawmakers have moved to abolish the law.
But the need to protect female rights and preserve monogamy in the traditionally male-dominated Confucian society has remained dominant until now.
The Constitutional Court has already ruled in favor of the law in 1990, 1993 and 2001.
In the most recent ruling, the court stated the need to keep the clause to preserve sexual morality and monogamy, in order to prevent divorces and out-of-wedlock births. The court also said that adultery is still a serious crime in a general legal sense.
But, the court requested the National Assembly to seriously examine the abolition of the punishment for adultery, acknowledging a change in the public perception of adultery and families.
The constitutionality of the law is already pending at the court, following a request filed by two judges from local courts last year. Also, some lawmakers are pushing for a bill to abolish the punishment.
People who call for abolition of the anti-adultery law claim that it no longer has a reason to exist since the social and economic status of women has been raised significantly.
In the past, most adultery suits were filed by wives against their husbands -- thus proving that the clause protects women -- but as seen in Ok's case, a growing number of husbands are now making use of the law.
And the law appears to be rapidly becoming outdated in the society, with only a few filing criminal charges against their spouses.
Adultery cases that have resulted in actual criminal penalties comprised a mere 5.8 percent of cases as of last year, showing that the clause no longer has much legal weight in practice.
"The clause exists only as a retaliatory measure on the breakdown of marriage, as filing adultery charges calls for an automatic divorce," said 52-year-old housewife Lee Young-ae. "And it is absurd for the criminal court to judge relationships between spouses."
"When it comes to a person's sex life, individual freedom should be guaranteed as a top priority," she added.
Choi Jae-min, a 32-year-old office worker, agreed.
"Marriage is merely a deal made between two individuals," he said. "A broken contract can be dealt with in the domestic relations court or the civil court, but it is absurd to treat adultery in the criminal court along with murder or burglary."
Some assert that keeping the adultery clause is not only anachronistic, but also shameful for a democratic country.
"It is embarrassing that an adultery law exists in a country that claims to be a free democracy," said Kim Sung-min, 29. "The control of private life with law is a totalitarian way of thinking. I see it as a remnant of the military dictatorship of the 1970s and 80s."
"It is also absurd that the punishment for adultery is heavier than that for buying sex," Kim added.
Buying sex can lead to a maximum of one year in prison, according to the anti-prostitution law.
Yet, some still support the anti-adultery law, claiming it is the minimum required to prevent husbands from committing adultery and help unemployed married women maintain a certain financial status by receiving compensation from their husbands.
"Even if the law exists for only a few, it must be preserved if the few are worth protecting," said Chang Min-joo of the Korean Women's Development Institute. "We must admit that the threat of filing adultery charges has helped many women secure financial compensation from their husbands in cases of unexpected divorces."
Some people believe that the government and the society have the right to intervene in cases of marital infidelity as marriage is legally binding.
"Marriage is a legal pledge that influences not only the couple, but the family and even the society," said 33-year-old housewife Jung Da-young. "If one causes damage to the spouse and the family and puts social stability at risk, he or she should receive criminal punishment."
Kim Jong-suk, 41, agreed, saying that civil compensation is "not enough."
"When considering it from the victim's point of view, committing adultery could be worse than theft or fraud," he said. "If one is willing to break an oath and hurt the spouse and children, he or she must also be willing to face imprisonment."
Kang Se-na, 27, said that one's sex and love life are no longer personal matters if they put marriage at risk.
"As monogamy is a legal obligation in South Korea, it is right to criminally punish an individual for adultery," she said.
All eyes are on the Constitution Court once again, seven years after its last decision to uphold the controversial law. Disputes are expected to continue over whether there should be criminal punishment for adultery amid rapid changes in the South Korean public's perception of marriage and fidelity.
hayney@yna.co.kr
(END)
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