Case 20-2(A) KCCR 696; 2007 Hun-Ka17·21; 2008 Hun-Ka7·26; 2008 Hun-Ba21·47 (consolidated), October 30, 2008

Download Judgment: English
Country: South Korea
Region: Asia
Year: 2008
Court: Constitutional Court of Korea
Health Topics: Sexual and reproductive health
Human Rights: Right to privacy
Tags: Criminalization, Spousal consent

Defendants from six separate cases – 2007 Hun-Ka17, 2007 Hun-Ka21, 2008 Hun-Ka7, 2008 Hun-Ka26, 2008 Hun-Ba21, 2008 Hun-Ba47 – were prosecuted for adultery and fornication.  These cases were consolidated and brought before the Constitutional Court of Korea.  The Court was asked to review Article 241 of the Criminal Act and determine whether this article violated the Constitution.

Article 241 of the Criminal Act established that adultery was a crime.  Article 241 § 1 stated that a married person and other participant who committed adultery together would be punished by imprisonment for a maximum period of two years.  Article 241 § 2 stated that prosecution would only be initiated when the victimized spouse made an accusation.  This accusation was only prosecutable when the marriage was void or divorce proceedings had been initiated.  Adultery and fornication charges were limited to consensual sexual intercourse.

The Court held that Article 241 of the Criminal Act did not violate the Constitution.  Only five of the nine Justices determined that the provision was unconstitutional, and so they did not meet the minimum requirement of six votes for invalidating a law as unconstitutional.

Three Justices formed the majority opinion and stressed that Article 241 was intended to serve the public interest of protecting the monogamy-based marriage system and encouraging spouses to remain sexually faithful to each other. The majority noted that Article 10 of the Constitution protected the right to self autonomy, including the right to sexual autonomy, however such basic rights could be restricted by law for the purpose of ensuring national safety, public order and welfare. The majority found that, as the government had a duty “to maintain social order and ensure sustainable marriage and family life based on individual dignity and gender equality”, regulation of adultery had a legitimate legislative purpose.  In addition, considering the narrow scope of the application of Article 241, the majority found it difficult to conclude that such regulation of sexual autonomy was excessive.  The majority opinion also reasoned that the question of whether Article 241 was excessive in its punishment should be left to the legislature’s discretion; the mere fact that Article 241 imposed imprisonment did not necessarily make it an overly excessive restriction.

One Justice concurred with the majority decision, but argued that the uniform method of punishment outlined in Article 241 should be improved upon by legislation that considered the variety of individual specifics that can occur in a given instance of adultery.

Three Justices formed a dissenting opinion and argued that Article 241 was unconstitutional.  Although these dissenters found that the purpose of Article 241’s restrictions were legitimate, they argued that the means were inappropriate. The dissenting judges argued that State interference with sexual life through criminal punishment infringed on an individual’s privacy rights and represented an excessive restriction on sexual autonomy. The dissenting Justices further reasoned it was unfair to penalize adultery in light of the fact that other even more morally reprehensible acts such as incest, bestiality, and group sex were not regulated at all.

The dissenting Justices also noted the global trend of abolishing adultery crimes, which had signified an evolving perspective that the state should not interfere with, or regulate, the private choices that an individual made in shaping their sexual life.  In addition, these Justices argued that Article 241 contradicted the principles of protection of the monogamy-based marriage system by only allowing for prosecution upon the accusation of a victimized spouse where the marriage was void or a divorce action had been instituted—thus encouraging precluding any hope of emotional recovery between the spouses. The dissenting Justices further noted anti-adultery laws also no longer served the purpose of protecting women as women were not in the same disadvantaged roles vis-à-vis men that had initially inspired such legal protection, that Article 421 likely had little deterrent effect and that the provision could be abused by the accusing spouse to blackmail or swindle money out of the accused spouse.

Two other Justices formed separate dissenting opinions. One of these dissenters argued that Article 241 “allows over-exercise of State punishment by imposing criminal punishment even on acts that do not satisfy the conditions set forth to that end, such as those that require simply no more than moral reprehension or ones that are not or barely subject to reprehension, and thus non-conforms to the Constitution.”  The other dissenter argued that the imposition of criminal punishment for the crime of adultery “contradicts the principle of proportionality as regards the portion concerning statutory sentence, which therefore violates the Constitution.”

“Adultery and fornication cause marriage breakdowns, and even if the consequence is not as severe, they become a major threat to monogamy that buttresses the modern marriage system and cause social problems, such as abandonment of one's spouse and family members. It is needless to say that adultery and fornication go against the sound sexual morality called for in our society.”  Section 1, D(2),  page 9.

“In light of the State's duty to maintain social order and ensure sustainable marriage and family life based on individual dignity and gender equality (Article 36 Section 1, Constitution), the abovementioned necessity for regulation of adultery and fornication is fully acceptable. In this regard, the legitimacy of the legislative purpose is acknowledged.” Section 1, D(2), page 9.

“Moreover, regulation of acts by the Instant Provision is a restriction on sexual behaviors in specific relationships - no adultery is allowed while de jure marriage is valid and fornication is prohibited when being aware that the partner is lawfully married. This implies, for the adulterer, no more than evident obligation and responsibility accompanied by marital relationship forged on one's free will and, for the fornicator, a ban on actively joining adultery with the knowledge of others' violation of legal and moral obligations. Because this does not mean a prohibition of even the mental sympathy between the two sexes and slight sexual contact that can incidentally occur, so the private interest infringed on by the Instant Provision is generally very insignificant. On the other hand, the public interest served by the Instant Provision includes protection of good sexual morality as well as marriage and the family system, which is of great importance. Therefore, the Instant Provision also strikes a balance between interests. Ultimately, it is hardly perceived that the Instant Provision violates the rule against excessive restriction and thus infringes on people's rights to sexual autonomy and privacy.” Section 1, D(2),  pages 10-11.

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