This blog post examines the background behind the abolition of the adultery law in Korean society and explores whether this decision was made to protect privacy and respect individual freedom, or if it was an inevitable consequence of changing times.
On February 26, 2015, the Constitutional Court ruled unconstitutional Article 241 of the Criminal Act, which penalized adultery. This decision abolished the legal provision imposing prison sentences on married individuals who committed adultery, marking a significant turning point in South Korean legal history. Discussions about abolishing the adultery law were not new. Since 1990, there have been a total of five Constitutional Court rulings on the matter, and with this latest decision, the crime of adultery has finally been consigned to history. So, what were the circumstances that led to the introduction of the crime of adultery, and what societal changes ultimately led to its disappearance?
The punishment for adultery is believed to have existed as far back as the Eight Prohibitions of Gojoseon, making it a long-standing penal provision. In ancient societies, adultery was viewed not merely as a moral transgression but as a grave crime that undermined family order and social discipline. Entering the modern era, the Korean Empire codified adultery in its Criminal Code promulgated in 1905. Following the establishment of the Republic of Korea, a dual punishment bill was passed in 1953, criminalizing adultery by married men as well. This exemplifies how highly society valued sexual morality and family values at the time.
However, in 1990, the first constitutional review of the adultery law was held. The Constitutional Court ruled it constitutional, stating that criminal punishment for adultery was necessary to uphold sound sexual morality, the institution of marriage, and the protection of family life. Nevertheless, social debate over the adultery law persisted, with arguments for its abolition and retention continuing unabated. Particularly, questions arose about whether the adultery law remained an effective legal mechanism in modern society.
Interestingly, the number of adultery cases prosecuted as crimes has steadily declined since 1999. According to statistics from the Supreme Prosecutors’ Office, the number of adultery cases, which reached 5,717 in 1999, decreased to 1,564 in 2013, a reduction of 74%. This decline can be explained by several factors. First, adultery is a private prosecution offense, meaning the investigation only begins if the victimized spouse files a complaint. Proving adultery requires concrete evidence that the spouse had sexual relations with another person. This likely led many spouses to hesitate in filing complaints, as the investigative process could involve intrusions into personal privacy.
Furthermore, despite modern technology making it much easier to collect information on personal activities, the number of adultery cases continues to decline. This may be because, even though divorce rates are steadily increasing and marital discord accounts for a significant portion of the causes, adultery no longer acts as the decisive factor ending a marriage. While adultery was once considered a major cause of family breakdown, modern society increasingly views it as a personal, private matter rather than something to be strictly addressed legally or socially.
Another reason for the decline in adultery charges is the near disappearance of terms like ‘whore’ in modern society. Historically, adultery was heavily condemned socially, and stigmatizing the adulterer was common. Today, while adultery is still considered immoral, the culture of publicly punishing or stigmatizing the adulterer has largely disappeared. This means that even though adultery may still be a cause for divorce, it is no longer subject to social sanctions.
One reason adultery has moved away from being a target of social punishment is the strengthened respect for individual privacy and the recognition of limits on legal intervention. In modern society, personal freedom and the protection of privacy have become important values, and criticism has grown against legal institutions like the adultery law for overly interfering in private matters. Furthermore, changing societal perceptions of marriage and sexuality also made the continued existence of the adultery law difficult. As norms regarding marriage and sexual relations became more open and respectful of diversity compared to the past, the adultery law began to be perceived as an anachronistic law.
Ultimately, the abolition of the adultery law can be seen as a natural progression following societal change. In accordance with the principle that laws should reflect societal changes, the adultery law was deemed no longer necessary as a legal mechanism in modern society and was consequently abolished. This decision represents more than just the removal of a single legal provision; it is a significant case study demonstrating how laws should respond to social change. Moving forward, laws must continue to evolve, reflecting the changes of the times and aligning with societal values and norms.
