By Trista di Genova and Wu Bai, The Wild East
Taiwan’s law against adultery (xing-fa 刑法), also known as “Criminal Law Number 239” in the legal code, may seem a strange and archaic animal to some.
To this day adultery is a criminal offense that is punishable by up to one year in prison, with penalties applying to both sexes.
In place since 1935, Taiwan’s Department of Justice defines adultery as “a married person who has sex with another person.”
‘Fornication’ is defined in Taiwan as an adulterous sex act, but specifically it must entail sex with someone of the opposite sex; and involve penetration of one’s sex organ into/by another person’s (reproductive) sex organ, exclusively.
To clarify, none of the following is considered an adulterous act: a ‘handjob’, ‘blowjob’ or anal sex; or homosexual sexual activity.
Most of the time, perhaps 70% of it, charging a spouse with adultery is attempted by the wife, as part of a way to secure a more lucrative divorce settlement. Conversely, a man may try to press charges against the wife to try to avoid parting with his personal fortune.
To prove adultery has taken place, however, can be tricky. A woman might hire one of Taiwan’s countless private ‘dicks’ specializing in this field to follow the husband and take pictures as he leaves ‘a love motel’, for example, with his mistress (called xiao san or ‘little third’, the third person in the marriage).
The photographic evidence then has to convince the judge in a court of law that adultery indeed has been committed. It’s a criminal case; whereas the divorce proceedings are a civil case, under family law.
If the ‘injured’ party files charges against the offending spouse, the lover must also be charged. One or both of those charges, though, may also be dropped.
The ROC’s (Taiwan’s) legal system and its adultery law is affected by Antragsdelikt; in criminal law, this is a category of offense which cannot be prosecuted without a complaint by the victim, (in Chinese, gaosu nailun, 告訴乃論), an influence of German and Japanese legal systems, a legal practice also seen today in Japan and South Korea.
Adultery is a civil not public type of prosecution, and there’s no jury involved; in fact, juries are not part of the Taiwan legal system at all.
In the past, Taiwan’s adultery law has been used as a legal means of exacting revenge. Until the year 2000, someone could sue a spouse for adultery after the divorce had actually taken place. In one case, for example, a woman sued her ex-husband for adultery after the fact.
Some judges began to find this law inappropriate, however, and asked for a panel of judges to preside in order to interpret the law, ultimately changing it.
As international comparison, in China adultery is not considered a crime, but is considered grounds for divorce. (Wikipedia’s ‘adultery’ entry)
A few related cases on the Department of Justice’s website can be found in Chinesehere.
Further reading: ‘Decriminalization of adultery discussed,’ Taipei Times, 2000