On March 31, the Constitutional Court in Taiwan held oral arguments for a case challenging the constitutionality of the country’s criminal adultery statute.

The law (Article 239) is being reviewed for potentially violating the constitution, per se, and also for being used to prosecute and convict women at a disproportionately higher rate. The latter happens because men initiate prosecution against their wives more frequently than the reverse, while women often drop cases against their husbands but not the female third party, the latter of which is made possible specifically for the crime of adultery per the Code of Criminal Procedure (Article 239).

After the Constitutional Court of Korea found that country’s criminal adultery statute unconstitutional in 2015, Taiwan remains the only country in East Asia that criminalizes adulterous conduct.

The opinion will be released some time before May 31, as the law requires an opinion to be rendered within two months of the oral arguments (Article 24; Article 26). While one can never be certain on how the justices will rule, there are strong indications the law will be held unconstitutional and adultery will be decriminalized.

First, the Constitutional Court already examined the constitutionality of the crime of adultery in 2002 and found the law to be constitutional in Judicial Yuan Interpretation No. 554. For the same issue to be considered again a mere 18 years later indicates the court may want to reach a different result. It would be a waste of judicial resources if the court were to accept the case and go through the whole process just to reiterate a previous decision when the law itself has not been amended.

Though one possible result is that the court could find the law constitutional but applied in a discriminatory manner based on gender—which could lead to a ruling that keeps the substantive criminal law but mandates the amendment of the Code of Criminal Procedure—this is also unlikely based on how the court views its role, as described below. In short, accepting the case in and of itself is a strong indicator of the court’s desire to strike down the law in its entirety.

Second, the composition of the court, which is connected to the case being accepted, also shows that finding the law unconstitutional is likely.

The Court is composed of 15 justices, 11 of whom were appointed by President Tsai Ing-wen 蔡英文. To accept a case, half of the justices, or at least eight, have to agree (Article 16), which as explained above most likely means they have the willingness to strike down the law. To find a law unconstitutional, two-thirds of the Court (Article 14) would have to agree, which translates to 10 justices. As most, if not all the Justices appointed by President Tsai indicated directly or indirectly they support abolishing criminal adultery, reaching this threshold is likely even if all four appointees of President Ma Ying-jeou 馬英九, two of whom wrote separate opinions in the same-sex marriage case, were to dissent. The numbers indicate there are enough votes to find the law unconstitutional.

Finally, Justice Hsu Tzong-li 許宗力, President of the Judicial Yuan, may have tipped the court’s (or at least his own) hand in a lecture last November. A recap of the talk was posted by New York University’s U.S.-Asia Law Institute, which sponsored the event:

After issuing its domestically controversial 2017 decision ordering the legislature to legalize same-sex marriage, the court decided to let some time pass before deciding on another highly contested question involving the state and sex: a petition to invalidate the law that criminalizes adultery. “We would say that Taiwanese society needs a break, so we keep the case pending,” said Chief Justice Hsu. It may be that activism works better when justices making sensitive decisions have term limits, which is the case in both Taiwan and Germany.

If this is an accurate portrayal of Hsu’s speech, then it would be difficult to believe the court would not invalidate the law. As the talk was on the judicial activism of the constitutional court, bringing up the criminal adultery case in this context indicates Hsu was confident the court would reach an opinion that promotes social change and the protection of civil liberties. Striking down the law would lead to such an outcome. Making sure there is gender equality in the (possible) violation of constitutional rights presumably does not constitute his notion of judicial activism. In addition, it would make little sense for Hsu to talk about giving the public “a break” if the intended outcome of this case were to maintain the status quo.

In the same-sex marriage case, Hsu was able to persuade the other justices to join the majority opinion and limited the number of separate opinions to further his vision of the court’s role in protecting people’s rights, an example of deft negotiating that could be replicated here.

While these three main reasons show the strong likelihood the Constitutional Court will invalidate the crime of adultery in Taiwan before the end of May, there is still the possibility that the law will remain good law for another year or two, as the court could give a grace period to the Legislative Yuan to amend the Criminal Code rather than invalidating the law on its own.

In the opinion legalizing same-sex marriage, the court ordered the legislature to pass a law consistent with the ruling within two years, which granted time for opponents to confuse the issue with referendum items supported by spurious legal arguments. If the Constitutional Court were to grant a grace period after striking down the criminal adultery law in the present case, it may be possible for supporters of the law—and it does have supporters—to engage in similar tactics and once again force both the Executive Yuan and the Legislative Yuan into inaction until the deadline.

In a nutshell, adultery is likely to be decriminalized in Taiwan very soon… or, perhaps, in a couple of years.

(Cover photo by Tumisu on Pixabay)