The ruling against the 62-year-old adultery law at a Constitutional Court hearing in February was not merely the conclusion to a controversial decades-long debate. It also reflected changing norms in a traditionally patriarchal Korean society.
“Amid a rapid rise in individualism and sexual openness, perceptions of marriage and sex are also changing,” the judges said at the hearing.
While the court stoutly maintained that adultery was unethical, it said the law had to adapt to changing values among members of its society, including attitudes to love and sexuality.
Divorce in South Korea, which is rooted in Confucian principles and patriarchal gender roles, was not too long ago considered unthinkable.
Before the country’s recent industrialization, “families and households were the primary units of … economic activity,” according to Noriko O. Tsuya and Larry L. Bumpass, editors of “Marriage, Work and Family Life in Comparative Perspective.”
“Women, and to a lesser degree, men depended on the ensuing family relations and kin network, and conjugal and parent-child relations were considered unbreakable, lifelong commitments,” wrote professors Tsuya and Bumpass.
With the rise of individual wage earners displacing family-based production, “the once sacred notions of marriage ... and obligations to one’s family (gave way) to individual well-being and self-satisfaction.”
The shift from collectivistic values to individualistic self-identity is illustrated in the rise of the “love marriage” in place of the conventional arranged marriage that were traditionally family alliances, “the joining of two ancestral lineages,” according to “Culture and Customs of Korea,” written by Donald N. Clark.
Koreans are now marrying later and choosing to have fewer or no children, according to census data. The fertility rate has rapidly declined since the 1970s and reached a record low in 2005 in the country with the lowest birthrate among OECD member states.
The crude divorce rate also increased sevenfold from 0.5 per 1,000 in 1975 to 3.5 in 2003 before declining to 2.6 in 2005, which nonetheless surpasses the rates in EU countries and Japan, according to Statistics Korea.
Premarital sex is almost universal, though out-of-wedlock childbearing remains extremely low at 1-2 percent of all births, according to a 2009 study by Lee Sam-sik from the Korea Institute for Health and Social Affairs.
Accompanying these trends is a steady increase in socioeconomic gender equality. The female labor force participation rate, which comprised one-quarter in 1970 and rose to one-half in 1996, is currently at 55.6 percent, though it remains lower than the OECD average rate of 61.8 percent.
“We cannot ignore the intensifying debate in this changing society that free engagement in sexual self-choice is being considered with regard to self-respect and the pursuit of happiness,” said the Constitutional Court on Feb. 26 on the petition against the adultery law.
But the judges drew attention to the “undeniable fact” that the anticheating law had historically protected women, who were economically disadvantaged, giving them important leverage to secure compensation and alimony in the case of divorce.
The Constitutional Court, however, cited other more recent laws in the civil court that now guarantee custody without gender prejudice and help protect underprivileged women in place of the adultery law.
In fact, the adultery law was often used by husbands as a resort for revenge and to acquire financial benefit over “temporarily wayward housewives,” according to the court.
Since the law, which punishes adultery for up to two years in prison, takes effect only when and for as long as a spouse presses charges, “the adulterer and his or her lover’s legal fates (hung) completely in the partner’s hands.”
The most high-profile such case was in October 2008, when legal debate and public interest over the 1953 statute reached its peak. Korean actress Ok So-ri filed a petition against the adultery law, following her husband actor Park Chul’s lawsuit against her for having an extramarital sexual relationship with his friend, an operatic pop singer.
Ok’s lawyers said the statute had “degenerated into a means of revenge” and that it constituted a “serious violation” of its citizens’ right to sexual freedom.
Justice Kim Hee-ok said during the legal hearing that the adultery law “punished an act that ought only to be criticized ethically.”
The Constitutional Court came one vote short of overturning the law. Ok and her lover were sentenced to eight and six months in prison, respectively, suspended for two years.
For the most part, however, incidents of adultery were not prosecuted in criminal court. The Constitutional Court cited figures showing that less than 10 percent of reported adultery cases resulted in prison sentences as proof that the adultery law was “markedly weakening” as a punitive resort.
Though about 30 percent of 2,000 surveyed men admitted to having extramarital sex, over 20 percent of those who committed adultery faced legal penalties, according to the Korean Women’s Development Institute in 2014.
The Constitutional Court ruled that the adultery law was “completely ineffective” in saving marriages, which had often already broken down by the time the cases reached the criminal court, and that there was “no existing positive research” supporting its deterrent effect.
Seven of the nine judges declared that “the sustainment of marriage should be entrusted to the free will and love of spouses,” rather than the state, which should be “less intrusive and controlling” over individuals’ right to self-choice.
South Korea was until February one of only three non-Muslim Asian countries, along with Taiwan and the Philippines, to criminalize adultery.
