According to opinion polls, 69 percent of Korean men and 58 percent of women oppose jailing people who commit adultery. The Constitutional Court’s ruling Thursday, which abolished a 62-year-old law that made extramarital affairs a crime punishable by a maximum of two years in prison, reflected the popular sentiment somewhat belatedly.
On behalf of the majority in the 7-2 verdict, Justice Park Han-cheol said, “Article 241 of the Criminal Code is unconstitutional, as it unduly suppresses people’s basic rights on sexual determination.” That must be the remark the nation’s anti-adultery law crusaders have wanted to hear since they first took issue with it in 1990.
The court’s eventual nod reflects changing times. Unlike in 1953 when the law was enacted, women are not necessarily the weaker sex in Korea, socially and economically. Mirroring the law’s dwindling efficacy, few, if any, offenders were punished in recent years as most of the people involved reached out-of-court settlements financially. This may also explain why Korea has been one of the few bastions of the outdated law, along with Taiwan and some Islamic countries.
There are some caveats, though. Koreans, especially men, must know the top tribunal’s latest decision does not mean the legalizing of adultery. Such concerns may have some grounds, given the report that the share price of condom and morning-after pill makers jumped upon the news.
The experience of other countries shows the repealing of an adultery law does not lead to a rise in immoral relationships. To rule out any such possibility, however, the authorities concerned will need to raise alimonies and other compensations to punitive levels. The controversial law’s positive function of protecting the marriage and family systems should remain intact by touching the civil codes. It is also necessary to take more action to enhance gender equality in employment and other socio-economic areas.
Most of all, the court’s ruling is significant in that it revealed another layer of hypocrisy, or dualism, masking Korean people’s attitudes and consciousness with respect to sex. Another survey shows up to four in every 10 married men ― and 6.5 percent of women ― here have committed adultery. The law has been used mainly as a tool to raise or lower alimonies in cases of breakup while failing to prevent divorces or stopping even preventable ones. Also, Korea’s world-famous, or infamous, sex industry makes one wonder what all this fuss is about.
In more sober terms, the decision also provided Koreans with an opportunity to ponder the relationship between the state’s power and individuals in this republic. This is especially relevant considering how individuals’ freedom and privacy have been eroded under the two conservative governments, as Amnesty International said in its recent assessment.
Nobody thinks adultery is good, but few Koreans want the state to pry into their bedrooms. And this should also be true with other areas of privacy.