Rebuttal: Justifying the Termination of the Adultery Clause

The recent termination of the article regarding adultery in the Korean constitution has caused a heated debate. One of our columnists, Lily, also participated in the debate in her recent article, expressing her disagreement with the Korean Supreme Court’s decision. I, too,  disagreed with the adultery clause at first, but after knowing about the circumstances more in depth, I now confidently stand in favor of the termination of the clause.

Firstly, there is a misconception that the elimination of the adultery clause legitimates adultery, and this is obviously not true. The adultery clause of the Constitution grants the government the right or duty to intervene in a married couple’s affair. With the adultery clause gone, the government would no longer intervene. Yet, under the civil law, a person can still sue his or her partner for committing adultery, actually in a broader scope. (This I am going to explain later.) So, the elimination of the clause does not mean legalization of adultery.

Now, I’d like to present why it is absurd for the adultery clause to exist in the first place. The adultery clause doesn’t prevent adultery much because evidence required for a successful accusation is too unrealistic. The accuser must have specific evidence that proves that the accused had sex with someone other than his or her spouse. (Technically, the accuser in criminal trials is the prosecutor, but for the purpose of this article, I will refer to the accuser as the partner who wants to revenge the other.) Here, kiss and oral sex don’t count. The only recognized offense is penetration, and the sex scene must be captured while it’s taking place. Let me give you an example:  a woman was suspicious of her husband committing adultery, so she secretly placed a camera in order to collect evidence to sue her husband. The recorded video obviously showed that two people were having sex on bed (all the sex noises were caught), but the bed frame covered the sight of penetration. Only the top half of the husband’s naked body was visible, so she failed to use the adultery clause. Even the pregnancy of a woman cannot be used to prove “adultery.” The constitutional clause is practically useless.

Even under the assumption that a person luckily captured the scene, what would he or she do about it? With the adultery clause, the accuser can only give the accused the punishment of imprisonment for a maximum of 2 years. Solatium and other negotiations occur in a civil court, and the battle in the civil court can happen without the clause.

The clause is extremely unnecessary and unhelpful in rebuilding the family. In order to punish the criminal based on the adultery clause, the accuser must go through the process of a divorce lawsuit or end the marriage. Simply saying, maintaining the marriage status will forbid the use of the adultery clause. In a civil court, however, there can be as many negotiations as the two sides want, including securing the marriage and the amount of solatium. The civil law can be extended to punish the partner’s adultery without sex and even the third person who had the affair with the accused.

These straightforward legal reasons demonstrate how unnecessary the clause was. Nevertheless, some people do not know about the issue in depth, believing in false premises that the clause was effective and adultery is now legalized. They are not true at all. The truth is that the adultery clause was an inefficient use of governmental power that led to the deteriorating conditions of families.