The island’s highest court is to review the law this week raising hopes of abolition.

Taipei, Taiwan – Wendy had just moved in with her new partner when the couple found themselves unexpectedly charged with a crime: criminal adultery.

The old childhood friends had started seeing each other after Wendy, a dual Taiwanese-American citizen in her 40s, returned to the island.

Her partner had already initiated a separation from his Taiwanese wife after their marriage broke down.

But in Taiwan, where divorce typically requires mutual consent, his decision to move in with Wendy meant their actions could be considered a crime.

“We were really freaking out because we had no idea,” Wendy said of the period after being served lawsuits for attempting to pòhuài jiātíng, or “break the family”.

“It’s [odd] Taiwan is on the forefront of legalising gay marriage and yet they have this archaic law.”

Wendy, who asked to be identified by another name due to Taiwan’s defamation laws, soon found that even after going through a divorce in the United States, dissolving a marriage in Taiwan was far more complicated.

“Adulterous” couples like Wendy and her partner risk as many as 22 months in prison under Taiwanese law, according to Hsiao-Wei Kuan, a professor at National Taipei University’s Department of Law.

In practice, most of those found guilty are “sentenced” to three to four months in prison for which they can pay a fine, averaging around 90,000 New Taiwan dollars ($3,000), but that figure does not include the thousands more in legal fees many individuals are forced to pay to defend themselves.

Despite its increasingly progressive reputation after legalising same-sex marriage, Taiwan is one of the only non-Muslim places in the world to still criminalise adultery. It is also the last place in East Asia following South Korea’s decriminalisation in 2015.

In 2015, South Korea’s Constitutional Court abolished a 62-year-old law that made adultery a crime. Taiwan is now the only country in the region with such legislation [Lee Jin-man/AP Photo]

Even as the law is seen to unfairly target women, it has largely remained on the books because of its overwhelming popularity. It was supported by 80 percent of the Taiwanese public, according to the last available survey in 2013 by the Ministry of Justice.

Times, however, may be changing as Taiwan’s constitutional court prepares to hear oral arguments on the criminal adultery law on March 31.

Carrot and stick

Experts like Kuan say while many women support the adultery law – they are also the ones who are more likely to face prosecution. Women make up slightly more than half of those prosecuted in adultery cases.

While that might not sound excessive, that compares with other crimes in Taiwan where women account for only about 5 to 15 per cent of defendants.

The reason, Kuan said, is that the victim can both initiate and withdraw criminal adultery charges.

In many cases, it is common for a married woman to initiate a suit against their estranged husband and his new partner only to later “forgive” the man and withdraw the suit while continuing to prosecute the “other woman”. Married men, by contrast, are more likely to pursue charges against both equally.

The law can be used for a variety of reasons, a key one being that unlike countries such as the US, Taiwanese cannot obtain a “no-fault divorce”. Spouses must either mutually consent or prove a reason for the divorce, such as adultery or abuse.

In many cases, however, the adultery law has become a way to secure more attractive divorce settlements, with cases withdrawn after couples agree to settle out of court.

Kuan said this reflected deep problems within Taiwan’s civil courts.

“Why would you use this criminal procedure to get money? I think that’s the failure of the civil court: you can’t get as much money for their alimony or other compensation,” she said.

The threat of prosecution is also used by spouses to encourage an errant partner to return home – either through a direct threat of prosecution or by making their lives more difficult.

Anna, a European living in Taiwan who also asked that her real name not be disclosed, found herself threatened with expulsion from her graduate programme several years ago when the wife of her then-Taiwanese boyfriend contacted administrators in a bid to break the couple up.

While her partner had separated from his wife before he met Anna – something she later learned his ex-partner was still unhappy about – she said she did not fully understand the consequences until she was summoned to a university office several months later.

“She said this [relationship] is illegal in Taiwan and you can get into prison or get arrested and also if we find out that this is true you might have to be expelled from the university. To save my own a**, I said it was all a lie,” Anna said, believing at the time – in her mid-20s – that she was too young to fully understand the consequences.

“I was so in love with him and we had a good relationship,” she said. The relationship ended several months later due to other strains but not before she was harassed on Facebook and forced to defend herself for a second time to her university.

Constitutional changes

As a review of anti-adultery law progresses in the constitutional court, Bob Kao, a Taiwanese-American lawyer who writes about legal issues in Taiwan, said the legislation could finally be overturned.

In the past, the constitutional court has been the government’s favoured avenue to push through controversial issues that have not received widespread support from the public.

Taiwan legalised same-sex marriage in 2019, but adultery remains a crime [David Change/EPA]

In 2017, the court interpreted Taiwan’s definition of marriage as unconstitutional, paving the way for the legalisation of same-sex marriage last year even after it was rejected in a nationwide referendum amid opposition from conservative Christian groups.

“It’s like the same-sex marriage issue where the government and the Legislative Yuan didn’t want to do something about it because of its popularity, so they punted the responsibility to the constitutional court,” he said.

The criminal adultery law was last ruled as constitutional in 2002, but the legalisation of same-sex marriage may present a new and significant challenge.

For historical reasons, the law refers to a couple as being composed of one man and one woman – the same issue as its former marriage law – raising questions of equal protection before the law, according to the Taiwan Alliance to Promote Civil Partnership Rights.

The TACPR, however, said they will submit an amicus brief to have the law struck down entirely rather than extended to include all couples.

“Right now the government excessively interferes with private relationships,” said Hannah Liu and Allison Hsieh, a paralegal and legal manager respectively, interviewed together at the TACPR offices in Taipei.

“Who can enter into marriage and who can divorce should not be interfered with by the government and should be the decision of individuals.”

Diminishing evidence

The adultery law also faces challenges from privacy laws which have reduced the amount and kind of evidence – often collected by Taiwan’s vast industry of private investigators advertising “marriage health checks” and “adultery checks” – that can be presented at court.

A review by the Ministry of Justice of adultery cases between 2009 and 2019 found that two-thirds ended without prosecution, the most common reasons being “insufficient evidence” in nearly half of all cases followed closely by “withdrawn” prosecutions.

In Wendy’s case, dozens of photos were taken by a private investigator showing her and her partner entering and leaving their home or walking outdoors, whereas in the past, photos of “adulterous couples” would have caught them in more intimate moments.

The case was ultimately thrown out this year due to insufficient evidence, but not before her partner’s ex-wife reportedly spent $100,000 to secure evidence against the couple.

Wendy says her legal problems are not over yet because she has been threatened with an independent prosecution while her partner’s and his future ex-wife’s divorce proceedings continue.

“Honestly, initially I was very, very worried,” Wendy said. “Am I going to go to jail for this? This is crazy. But then as I started to learn more and more about it, in the end it’s just about money and it’s sad. She’s getting compensated … but she spent 100,000 US dollars on bogus evidence. I think somebody took advantage of her.”