Asia Sentinel's Jens Kastner writes about Taiwan's archaic laws on adultery. This infographic illustrates the…
Taiwan’s Archaic Adultery Law
Snoops fatten themselves, women are victimized
Earlier this year, Taiwan’s Minister of Culture Lung Ying-tai reminded the Taiwanese of their archaic adultery law, saying that whenever foreign friends remark on it, she feels utterly embarrassed.
That caused a handful of fellow politicians to suggest a review of Taiwan’s Criminal Code Article 239 which provides that "married spouses who commit adultery be imprisoned for up to one year." But the drive has led to nowhere. Even worse, decriminalization’s staunchest opponent, the Ministry of Justice, published a survey showing that 82.2 percent of the respondents don’t want the adultery law to be tinkered with.
This leaves ostensibly liberal Taiwan on an inglorious list with conservative South Korea and the Islamic countries.
While the adultery law itself is gender-neutral, the devil is in the details. It is an Antragsdelikt, an archaic oddment left over from the days when the Republic of China was actually in China and adopted the German civil code and criminal code of the 1930s. It is an offense prosecuted on complaint, which means that the case is closed as soon as the plaintiff drops the charge. In practice, that usually means unfaithful women are punished while cheating men walk free.
"If Taiwanese men get caught, they usually apologize, then the wives tend to drop the charge because men are often the economic providers in most families; but if it is the other way around the women are dragged into court," said Chen Yi-chien, director of Shih Hsin University’s Graduate Institute for Gender Studies and vice president of the Awakening Foundation, a gender-equality NGO.
Child custody also plays a role, with women fearing a lawsuit more than men regardless which side has committed the crime. If the intimacy of a marriage is destroyed in court, it almost always leads to divorce, and the judge will then decide for the best interest of the child.
"So what’s best for the child? People would still look at work, education and property, putting women at a disadvantage because usually they quit their jobs to look after the children," says Chen. To put the practical gender discrimination into plain statistics, 50 percent of women who sue their husbands for adultery will eventually drop charges, but only 23 percent of men will do so against their wives, resulting in a higher conviction rate among women, according to the Awakening Foundation.
But the adultery law’s nature is not the only legal oddity that effectively discriminates against Taiwan’s women. The zishu system is typically used by wives for revenge against the offending female involved in the affair, again putting women and not men on the receiving end. Under zishu, the would-be plaintiff can hire a lawyer to press a criminal charge directly against the third party without harming the spouse. This can be done if the district attorney rejects the opening of an adultery law suit, e.g., because of a lack of evidence.
Chen pointed out that although in any crime other than adultery, all defendants will be prosecuted at the same time because they have all committed a crime, zishu has been reviewed and okayed by the Constitutional Court.
Feast for the flies
In the past, if a Taiwanese male merely stayed alone in a room with a woman to whom he wasn’t related by blood and who wasn’t his wife, and at least one of the them was married, the two were guilty of adultery, no matter if there was further evidence or not. But given the German civil and criminal code, the concept of evidence has become the core idea of criminal procedure. As evidence has thus to come from somewhere, Criminal Code Article 239 feeds an entire industry of private investigators.
There are no concrete figures on their numbers or revenue but the circumstance that Taiwanese city buses and many bus stop signs are plastered with their advertisements does suggest the existence of a massive industry.
The snoops’ business model, or "lifestyle audit" as they call it, is as revolting as it is lucrative. They promise their clients evidence obtained by shadowing the spouse and the third party. Then they typically take pictures of the offending couple hugging in a coffee shop or entering a hotel together, and use this to blackmail the cheating spouse.
If the investigator manages to confront the target person when actually walking into or out of a hotel room with the third party, he pressures the panicky suspect into the on-site signing of a benpiao, a flat acknowledgment of guilt, which can then effectively be cashed in by the client for a higher divorce settlement sum in court.
If not, the client is fleeced by a step-by-step flow of pictures and other bits and pieces of flimsy evidence he or she must pay for. Often it takes considerable sums until the client’s lawyer has made clear that it takes a benpiao or "evidence for sexual intercourse," such as tissue paper stained with the bodily fluid of one or both adulterers.
Although in recent years Taiwanese courts have increasingly accepted videotapes, emails and text messages as "evidence through inner conviction", the collection is tricky, as the private investigator risks being charged with violating privacy laws, which can result in up to three years’ imprisonment, a harsher punishment than the maximum one year for adultery. Thus the "lifestyle audit" is much more about deception than supplying Taiwan’s courts with adulterers.
Still, Professor Chen wouldn’t go so far as alleging that the private investigation companies constitute a political lobby working against the scrapping of the adultery law – although the notion becomes more plausible when taking into account that many companies advertise that their pool of snoops is comprised of retired prosecutors, judges and high-ranking police.
"We academics need evidence to make such allegations; but some people think that there might be such a link," Chen says.
Keeping a low profile
The persistent popularity of the adultery law is deep-rooted. Chen says that traditionally marriage in Taiwan has always been more a social welfare union as opposed to a romantic accord between two people. She also says that when adultery happened in past eras, people would have looked for authority – someone powerful in the extended family or in the community, to sort things out. Hence, the main pattern of thought on the island is still the traditional one, meaning people wanting to protect their family look for authority – and in the wrong place, namely the criminal courts, she says.
"And that the Ministry of Justice’s surveys indicate such overwhelming support for Article 239 is also because the public generally mixes up criminal charge and civil compensation," she adds. But there seems to exist yet another intriguing factor keeping the law alive, possibly explaining why the enthusiasm seen in March after Minister of Culture Lung’s push against it conspicuously quickly ebbed away.
"When I was a law school student two decades ago, most of my professors were already in favor of scrapping it but refrained from making noises," Chen said. "This was apparently because most of them were men; they feared that if they speak out, people would think they spoke for themselves, trying to decriminalize their own misdeeds."
That said, there is some light at the end of the tunnel. In 2011, Taiwan signed the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). And as if there weren’t enough oddities already in the island’s legal system, eager wannabe UN member Taiwan did not just sign it and then harmonized national laws accordingly as signees of UN conventions would normally do, but at one fell swoop turned the whole Convention into domestic law effective since January 1, 2012. Simply put, if Chen’s Awakening Foundation manages to prove that Article 239 has a disproportional impact on women, Taiwan must bid farewell to it.