Adultery law – why was it ever a criminal offence in the first place?

Constitutional Court
The Constitutional Court, which voted to decriminalise adultery (Photo: Kim Sang-seon / Joongang Daily)

The recent news item that the adultery was to be decriminalised in South Korea, 62 years after it was written into the criminal code, got me wondering as to why, when a country is rebuilding itself after a devastating war, would it be considered a priority to add adultery to the list of criminal offences.

So I raised the question in an internet forum, and asked a random selection of Koreans that I met. I didn’t get any definitive answers, but somewhere among the various suggestions may lurk the truth.

First, a Korean journalist pointed out to me that the vote to decriminalise was 7-2. Eight men and one woman. The woman voted not to decriminalise. This position is kind of consistent with the view that the adultery law was designed to “protect” women from the philandering ways of their errant menfolk.

The same journalist pointed out to me that of the 7 men who voted for decriminalisation, 6 of them consistently vote along conservative lines on other issues. The mischievous suggestion was that they were crypto-criminals themselves.

Another journalist suggested that with the ending of the Korean War, South Korea wanted to make a fresh start as a modern country, making a break with the past. The centrepiece of the project for building the country afresh was to be the nuclear family, and therefore anything that threatened the nuclear family should be criminalised. A secondary thought might be that in a modern society there was no room for the semi-accepted practice of yangban males taking a mistress or a concubine should they feel like it: that practice was outmoded.

Suggestions from the forum were as follows:

  • The chaos of war had meant lots of illicit affairs and illegitimate children, complicating the traditional need for certainty in the family registry eg from the perspective of inheritance.
  • A desire to reinforce the decision of parents who arranged the marriages of their children: the partners in an arranged marriage should be prevented from pursuing love outside marriage as this is unfilial.
  • Divorce, as well as adultery, was regarded in a very negative light at the time. Even today, becoming divorced is sometimes expressed as someone who has “failed at marriage” (결혼에 실패한 사람) as though one has “failed-in-life”. In such a context the criminalisation of adultery does not seem so odd.
  • The criminalisation of adultery protects families: families are important to the stability of traditional culture; children of broken families become mentally unstable, violent criminals — so the criminalisation of adultery also reduces other crime.
  • The law was intended to protect women whose husbands were profligate cheaters, back in the day when women were supposed to stay indoors.
  • Actually, the law was nothing new. It was a continuation of existing legal and cultural mores. In 1953 *lots* of countries considered adultery to be a legal offence. Many of them still do, including Taiwan (up to a year of imprisonment), parts of the US, etc. [This particular suggestion prompted discussion around whether, actually, there were pre-existing legal and cultural mores which meant adultery was unacceptable. Clearly, many yangban males considered taking a concubine an acceptable behaviour, even though adultery was almost certainly a formal offence during the colonial period because Japan also had a law on the books explicitly criminalizing adultery until 1947.
  • One forum member linked to a fascinating article from July 1949, quoted in Popular Gusts:

Three thousand embittered Korean women marched on the capitol to present a resolution demanding the “purge” of all government officials who keep concubines.

The reaction of the men as the line of determined females passed was, as one bearded Korean said, “There is getting to be too much democracy in this country’.”

… At a rally in the city hall theater, the girls, representing all women’s organizations, demanded quick action on their resolution.

It included the following points:
1) The whole concubine question shocks Korean women extremely.
2) To use the question of women as a political tool is an insult to womanhood.
3) The constitution guarantees equality of sex. (The wording of the third point hinted that the women might consider exercising their constitutional rights and try matching men if men keep on with this number two and number three wife business.)

The Joongang Ilbo article linked right at the top of this post also says of the Constitutional Court decision:

In a joint statement of opinion, five justices said that because of changes in public attitudes about the state policing marriages, there was a mismatch between the law and a legal respect for individual rights.

The five judges also said that the controversial law had strayed from its original intention of acting as a deterrent against extramarital affairs and was now misused by estranged spouses in divorce trials as a way of winning more assets in a settlement.

Update 2 April 2015:

Hailji, who seems to have taken over from Kim Young-ha as the Korea-focused Op-Ed writer at the New York Times, has this suggestion in an opinion piece, South Koreans and Adultery, published yesterday:

Adultery was criminalized in 1953 to protect women at a time when they had a much lower status than men and were mostly confined to domestic roles. Opportunities to enter the work force were extremely limited, and most women were economically dependent on their husbands, who in the 1950s could easily get divorced and remarry with no stigma. Back then, divorced South Korean women were seen as disgraced; finding employment and remarrying were very difficult.

The adultery law was seen as a safeguard for women against divorce. It empowered women because they could hold the threat of legal action over philandering husbands. It was a tool to keep their men from divorcing them.

Any other suggestions gratefully received.

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