Several prosecutors have voiced support for decriminalizing adultery as the Council of Grand Justices on Tuesday heard arguments that treating adultery as a crime is unconstitutional.
Eighteen judges and a defendant in an adultery case have over the past several years repeatedly asked the council for a constitutional interpretation of Article 239 of the Criminal Code, which stipulates that a married person who commits adultery and the other party to the adultery should each receive a prison term of less than one year, but that there can be no trial without a complaint from an alleged victim.
Judicial Yuan President Hsu Tzong-li (許宗力) concluded Tuesday’s hearing by setting a date for a constitutional interpretation of the matter within the next month.
One prosecutor said on condition of anonymity that while it might seem that Article 239 is necessary to keep families intact, in reality it does not help reduce the divorce rate.
Legal proceedings for adultery waste judicial resources and force spouses to confront each other in court, so it is questionable whether criminalizing adultery is even necessary, they said.
Another problem is that judges often require alleged victims to prove that their spouses had sex with a third party, which can force complainants to breach privacy laws when trying to collect evidence, the prosecutor said.
If the complainant is then counter-sued for breaching privacy laws, the question of who is actually punished during court proceedings for adultery becomes murky, they said.
Another prosecutor said on condition of anonymity that the punishment for an adultery conviction is meaningless, as the sentence imposed is almost always commutable to a fine.
“How could a change in one’s feelings possibly be altered by a fine of hundreds of thousands of [New Taiwan] dollars?” the prosecutor said, adding that a verdict cannot help rebuild a relationship when it is already broken beyond repair.
Ministry of Justice head prosecutor Lin Ying-tzu (林映姿) said that Taiwanese society has yet to reach a consensus on whether to decriminalize adultery.
In the most recent government-conducted public opinion poll on the topic, which was posted on an Executive Yuan Web site in 2016, 85 percent of 10,755 respondents said that they opposed the decriminalization of adultery, Lin said.
A Taiwanese Public Opinion Foundation poll in 2017 found that 69 percent of people were opposed to decriminalization, Lin added.
Most people seem to be opposed to the idea of decriminalizing adultery due to social mores and might find it hard to accept immediate abolishment, Lin said.
The Coalition for the Happiness of Our Next Generation, a non-governmental organization that led the charge against same-sex marriage in referendums held in November 2018, said that it opposed the decriminalization of adultery.
The law “strengthens people’s respect of marriage, and protects the institution of marriage and the family,” the group said in a statement.
The group rejected the argument that the article should be abolished if it fails in its stated purpose to deter people from committing adultery.
“If we follow this logic, then we should also abolish homicide-related laws if they cannot prevent people from committing murder,” it said.
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