SEOUL, Oct 31: – South Korea’s highest court upheld Thursday a decades-old adultery law that can send people to jail for having an extramarital affair that critics say is anachronistic and infringes on personal freedom.
The fourth appeal made to the Constitutional Court since 1989 was brought by the lawyers for a popular actress who was charged under the law when her TV personality husband filed a criminal complaint against her for having an affair with an opera singer.
"The legal clause does limit an individual’s right to sexual freedom and the right to privacy, but does not violate the principle of forbidding excessive measure," the court said in an opinion overturning the appeal.
"This society’s legal perception that adultery is damaging to the social order and infringes on another’s right continues to be effective," the court said.
The lawyers for actress Ok So-ri, whose legal name is Ok Bo-kyung, brought the appeal in January when she and her husband Park Chul entered messy divorce proceedings with both holding separate news conferences where they exposed embarrassing details of a troubled marriage.
Ok admitted to the affair in a tearful confession which also included accusations of Park as an inadequate husband.
"The adultery law … has degenerated into a means of revenge by the spouse, rather than a means of saving a marriage," Ok’s petition had said.
The law was enacted in 1953 to protect women.
In this male-dominated society, women had little recourse against a husband who had an affair. Back then, if a wife walked out of a marriage, she would often end up alone and penniless.
Today, it is rare for people to be jailed but that has not stopped several thousand angry spouses from filing criminal complaints each year.
Critics have said a better compromise might be to allow spouses just to sue for compensation in civil court.
"The decision seems to represent a still prevalent idea that the adultery law serves as a buffer against family breakdown, a point that hasn’t even been proven," said Lee Hye-kyung of the Minwoo women’s rights group.
"The law is problematic in that it focuses only on the technical aspects of sexual intercourse and allows the government to intrude on the most private part of adult sexual life."
The number of divorces in South Korea has almost doubled since 1995. In 2005, about 128,500 couples divorced in the country of almost 49 million people.
Although women still face difficulty finding high-paying jobs or achieving wage parity with men, more women have been able to enter the labor force over the past decade and live independently on their wages.
The court did recognize that the decision reflected a more varied view by the nine-judge panel, which was sharply divided on whether the law still adequately served its original purpose, unlike the court’s earlier relatively straightforward decisions.
"It is inappropriate to make ethically questionable conduct the subject of criminal punishment," Judge Kim Jong-dae said in a dissenting opinion. The intent of the law’s framers to protect women is also no longer effective, he said.
Five judges found the law unconstitutional in three separate dissenting opinions, one short of the six needed to strike it down. Four voted to uphold.