It marked the fifth time in
25 years that the court had considered the constitutionality of a 1953 statute
which made South Korea one of the few non-Muslim countries to regard marital
infidelity a criminal act.
The statute was not a
historical quirk that simply gathered legislative dust. In the past six years,
close to 5,500 people have been formally arraigned on adultery charges —
including nearly 900 in 2014.
But the numbers had been
falling, and cases that result in prison terms were increasingly rare.
Whereas 216 people were
jailed under the law in 2004, that figure had dropped to 42 by 2008, and since
then only 22 have found themselves behind bars, according to figures from the
state prosecution office.
The downward trend is partly
a reflection of changing societal trends in a country where rapid modernization
has frequently clashed with traditionally conservative norms.
In April last year, South
Korea blocked the newly launched Korean version of the global adultery hook-up site
Ashley Madison, saying it threatened family values.
Under the law, adultery could
only be prosecuted on complaint from an injured party, and any case was closed
if the plaintiff dropped the charge — a common occurrence which often involved
a financial settlement.
The law was grounded in the
belief that adultery challenges social order and damages families, but critics
called it an outdated piece of legislation that represented state overreach
into people’s private lives.
The debate over its future
simmered for some time, bubbling over from time to time especially if a public
figure fell foul of the statute.
Such was the case in 2008
when one of the country’s best-known actresses, Ok So-ri, was given an
eight-month suspended sentence for adultery.
Ok had unsuccessfully
petitioned the Constitutional Court, arguing that the law amounted to a
violation of her human rights in the name of revenge.
The court had previously
deliberated the issue in 1990, 1993 and 2001, and in each case dismissed the
effort to have it repealed.
But the petitions came ever
closer to securing the support of six members of the court’s nine-judge bench
required to strike the statute down.
In 2008, five of the justices
deemed the law to be unconstitutional, arguing that adultery could be condemned
on moral grounds but not as a criminal act.
The law was originally
designed to protect the rights of women at a time when marriage afforded them
few legal rights, with most having no independent income and divorce carrying
enormous social stigma.
“But it has long lost that
relevance,” said Kim Jung-Beom, a lawyer and specialist on family law.
“For a start, the number of
female ‘offenders’ has increased, and in some ways the law has become a way of
naming and shaming women,” Kim said.
He also noted that other laws
now provided women with greater legal security in their marriages, and a fair
division of assets in the event of divorce.
Defenders of the statute said
its loss would encourage sexual license, an argument which Kim said has “not a
shred of evidence” in support.
http://www.japantimes.co.jp/news/2015/02/26/asia-pacific/crime-legal-asia-pacific/south-korea-court-to-rule-on-decriminalizing-adultery/#.VPCfKPnF_fI