Adultery law faces constitutional review

A district court judge has requested its ruling on the constitutionality of the penal punishment for adultery.

It is the fifth time the penalty for adultery has been be brought to the Constitutional Court, which ruled it constitutional in 1990, 1993, 2001 and 2008.

Clause 24 of the nation’s criminal law stipulates that criminal conversation, the legal term for the offense of adultery, carries a penalty of up to two years in prison.

In requesting a ruling on the constitutionality of the clause Monday, Judge Lim Dong-gyu of Uijeongbu District Court argued that the state should not interfere in the matter of extramarital affairs.

“Adultery should be dealt with from the perspective of sexual morality. In a world where monogamy has been settled, criminal law should not force sexual morals through penalties. It could result in judicial imbalance (with the reality),” Lim said in the request.

“I don’t think the law will be of any help to a marriage that has already hit the rocks,” he told a local daily.

The request came after he had sentenced a 48-year-old woman to eight months in jail with two years of suspension for having affairs with two married men. She denied the charges and appealed.

The crime of adultery has been a highly disputed issue, with voices gaining traction for its repeal.

An advisory body for the Justice Minister in March suggested the ministry take legal steps to repeal the clause.

The view of adultery on the bench of the Constitutional Court has changed little by little. Until 2008, nearly all justices cast their votes for the law. In 2001, the law was ruled constitutional in an 8 to 1 vote, but in 2008, four out of the nine justices called the law unconstitutional. This time, though, three of the justices who stood to preserve the law ― Lee Kong-hyun, Kim Hee-ok and Cho Dae-hyun ― will not be there, having retired earlier this year, leading to speculation that their younger replacements may present different opinions on the subject.

The fact that an incumbent judge has requested the Constitutional Court to decide on adultery even after the court had struck down a similar request four times reflects a change of attitude on the traditionally conservative judiciary.

“In 2009, the Constitutional Court ruled that a criminal clause penalizing men who seduce women for sexual intercourse with a false promise of marriage is unconstitutional,” a court official said.

“The social environment is always changing. This time, we might see something different.”

Women’s rights advocates here opposed the repeal of the adultery clause, arguing that it is the last resort to protect wives and families from adultery by husbands, but lately some groups have called for the scrapping of the clause.

“The government has no right to meddle with the intimate matters of married couples,” said Kwak Bae-hee, head of the Korea Legal and Aid Center for Family Relations.

“Establishing other protective schemes for the victims of spouses’ adultery will be more effective.”

By Bae Ji-sook (baejisook@heraldcorp.com)