In this blog post, we explore the reasons behind the abolition of adultery in South Korea, and whether it was a decision to protect privacy and respect for individual freedom, or a sign of the times.
On February 26, 2015, the Constitutional Court ruled that Article 241 of the Penal Code, a provision punishing adultery, was unconstitutional. The decision repealed the law’s provision punishing those who commit adultery in the presence of their spouse with imprisonment, marking an important turning point in South Korea’s legal history. This is actually not the first time that adultery has been discussed – there have been a total of five Constitutional Court decisions since 1990 – and the decision eventually consigned adultery to the dustbin of history. But how did adultery come to be, and what societal changes have brought it back?
The punishment for adultery has been around for so long that it may have existed as far back as the Eight Articles of War in Gojoseon. In ancient societies, adultery was considered not just a moral aberration, but a serious crime that shook the order of the family and the discipline of society. In modern times, the Korean Empire promulgated the Code of Criminal Procedure in 1905, which criminalized adultery, and the founding of the Republic of Korea in 1953, which criminalized adultery by married men as well. This shows how much society valued sexual morality and family values at the time.
However, in 1990, the first constitutional challenge to the adultery law was held, and the Constitutional Court ruled that the criminalization of adultery was necessary to protect good morals, the institution of marriage, and family life. Nevertheless, the social debate on adultery continued, and there was a lot of discussion about its abolition and survival. In particular, questions were raised about whether adultery is a viable legal device in the modern world anymore.
Interestingly, the number of adultery cases criminalized has been steadily declining since 1999. According to statistics from the General Prosecutor’s Office, the number of adultery cases dropped from 5,717 in 1999 to 1,564 in 2013, a decrease of 74%. This decline can be explained by several reasons. First, adultery is a self-incriminating offense, meaning that the victim, the spouse, must come forward to initiate an investigation, which requires hard evidence that the spouse has had sex with someone else in order to prove adultery. This entails an investigative process that can invade a person’s privacy, which is likely why many spouses are hesitant to report.
Additionally, despite the fact that modern technology has made it much easier to gather information about a person’s activities, the number of adultery cases has been declining. This may be due to the fact that adultery is no longer a decisive reason for ending a marriage, despite the fact that divorce rates have been steadily rising, with marital discord accounting for a large part of the cause. In the past, adultery was seen as a major cause of family breakdown, but in modern society, it’s become more of a personal and private matter rather than something that is dealt with strictly legally and socially.
Another reason for the decline in adultery is that the use of words like “slut” has all but disappeared in modern society. In the past, the act of adultery was highly socially condemned, and it was common to stigmatize the adulterer. Today, while adultery is still considered immoral, the culture of publicly punishing or stigmatizing the adulterer is fading. This means that while adultery is still a factor in divorce, it is no longer subject to social sanctions.
One of the reasons for this shift away from social punishment is a greater respect for the privacy of individuals and an increased awareness of the limits of legal intervention. Personal freedom and privacy are important values in modern society, and legal systems like adultery are increasingly criticized for overreaching into people’s private affairs. In addition, changing societal attitudes toward marriage and sexuality have also made it difficult for adultery to survive. As norms around marriage and sexual relationships became more open and respectful of diversity, adultery began to be seen as an anachronism.
In the end, the abolition of adultery was a natural progression of social change. In keeping with the principle that the law should reflect changes in society, adultery was seen as a legal device that was no longer necessary in modern society, and was therefore repealed. This decision is not just the end of one legal provision, but an important example of how the law should respond to social change. Going forward, the law should continue to reflect the times and evolve in line with societal values and norms.
