Taiwan’s Constitutional Court Decriminalizes Adultery

On 29 May 2020, the Taiwan Constitutional Court (“TCC”) issued Judicial Yuan Interpretation No. 791, ruling that (1) Article 239 of the Criminal Code, which stipulates criminal sanctions for adultery, and (2) the Proviso of Article 239 of the Code of Criminal Procedure, which allows the victim spouse to withdraw a complaint against the adulterous spouse only, are both unconstitutional and shall thus be null and void immediately upon the release of said Interpretation.  Adultery is no longer a crime in Taiwan.
The Interpretation stipulates that, based on the restraining criminal law principle, criminal sanctions shall be used to regulate behaviors that harm material public interests and which are anti-social.  Behaviors that mainly involve personal relationships and private disputes shall not be regulated by criminal law and/or sanctions.
Article 239 of the Criminal Code not only directly limits a person’s sexual autonomy, but also intervenes in personal privacy through the relevant criminal procedures.  The TCC holds that “the infringement of sexual autonomy and the invasion of personal privacy are so severe and intruding, in spite of its only slight contribution to the protection of marriage”, hence said law is held to be unconstitutional.
TCC further holds that said Proviso of Article 239 of the Code of Criminal Procedure is unconstitutional for violating the right of equality under Article 7 of the Constitution, “as the different treatment of the adulterous spouse and his or her extramarital partner bears no substantial relation to the realization of its purpose.”  In addition, the Proviso of Article 239 of the Code of Criminal Procedure is made null and void, accordingly, as Article 239 of the Criminal Code is declared unconstitutional.
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