Taipei, Taiwan – Wendy had just moved in with her new partner when the couple unexpectedly found themselves accused of a crime: criminal adultery.
Old childhood friends had started seeing each other after Wendy, a dual Taiwanese-American in her forties, has returned to the island.
His partner had already initiated a separation from his Taiwanese wife after the breakdown of their marriage.
But IIn Taiwan, where divorce usually 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 noted the period following service of the proceedings for attempted pòhuài jiātín, or “break up the family”.
“His [odd] Taiwan is at the forefront of legalizing same-sex marriage and yet they have this archaic law. ”
Wendy, who requested to be identified by another name due to Taiwanese libel laws, soon discovered that even after divorcing in the United States, the dissolution of a marriage in Taiwan was much more complicated.
“Adult” couples like Wendy and her partner face up to 22 months in prison under Taiwanese law, says Hsiao-Wei Kuan, professor in the Department of Law, National Taipei University.
In practice, most of those convicted 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 this figure does not include the thousands more in legal fees. individuals are forced to pay to defend themselves.
Despite its increasingly progressive reputation after same-sex marriage was legalized, Taiwan is one of the only non-Muslim places in the world to still criminalize adultery. It is also the last place in East Asia after South Korea was decriminalized in 2015.
Even though the law is seen as unfairly targeting women, it has largely remained in the books due to its overwhelming popularity. He was supported by 80 percent of the Taiwanese public, according to the last survey available in 2013 by the Ministry of Justice.
Times, however, could change as Taiwan’s Constitutional Court braces for hear pleadings on the criminal law on adultery on March 31.
Carrot and stick
Experts like Kuan say that while many women support the adultery law, they are also the most likely to be prosecuted. Women represent just over half of those prosecuted in adultery cases.
While this may not sound excessive, it compares to other crimes in Taiwan where women make up only 5-15% of defendants.
The reason, Kuan said, is that the victim can both initiate and withdraw criminal charges of adultery.
In many cases, it is common for a married woman to bring an action against her ex-husband and her new partner and then “forgive” the man and withdraw the action while continuing to sue “the other woman.” Married men, on the other hand, are more likely to lay charges against both equally.
The law can be used for a variety of reasons, one of the main ones being that unlike countries like the United States, Taiwanese cannot get a “no-fault divorce”. The spouses must either consent to each other or prove a ground for the divorce, such as adultery or abuse.
In many cases, however, the adultery law has become a vehicle for more attractive divorce settlements, with cases being withdrawn once the couples agree to settle out of court.
Kuan said this reflected deep issues in Taiwan’s civilian courts.
“Why would you use this criminal procedure to get money?” I think it’s the failure of the civil court: you can’t get that much money for their alimony or other compensation, ”she said.
The threat of lawsuits is also used by spouses to encourage a lost partner to return home – either through a direct threat of lawsuit or by making their life more difficult.
Anna, a European living in Taiwan who also requested that her real name not be disclosed, found herself threatened with expulsion from her graduate program several years ago when her Taiwanese boyfriend’s wife d ‘then contacted the administrators with the aim of breaking up the couple.
While his partner had separated from his wife before he met Anna – something she later learned her ex-partner was still unhappy with – she said she did not fully understand the consequences until she was summoned to an academic office several months later.
“She said this [relationship] is illegal in Taiwan and you can be jailed or arrested and if we find out to be true you may need to be kicked out of college. To save mine, I said it was all a lie, ”said Anna, believing at the time – in her mid-twenties – that she was too young to fully understand the consequences.
“I was so in love with him and we had a great relationship,” she said. The relationship ended several months later due to further tensions, but not before she was harassed on Facebook and forced to defend herself a second time outside her college.
As a review of the anti-adultery law progresses before the Constitutional Court, Bob Kao, a Taiwanese-American lawyer who writes on legal issues in Taiwan, said the legislation could finally be overturned.
In the past, the Constitutional Court has been the government’s preferred vehicle for advancing controversial issues that have not received broad public support.
In 2017, the court interpreted Taiwan’s definition of marriage as unconstitutional, paving the way for same-sex marriage to be legalized 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 because of its popularity, so they turned the blame over to the constitutional court,” he said.
The last criminal adultery law was constitutional in 2002, but legalizing same-sex marriage can present a significant new challenge.
For historical reasons, the law refers to a couple as being made up of a man and a woman – the same issue as its old marriage law – raising questions of equal protection before the law, according to the law. Taiwanese Alliance for the Promotion of Civil Partnership Rights.
The TACPR, however, said it would submit an amicus brief to have the law struck down entirely rather than being extended to all couples.
“At the moment, the government is interfering excessively with private relations”, said Hannah Liu and Allison Hsieh, a paralegal and legal officer respectively, interviewed together at the TACPR offices in Taipei.
“Who can marry and who can divorce should not be interfered with by the government and should be the decision of individuals. ”
The adultery law also faces challenges related to privacy laws that have reduced the amount and type of evidence – often collected by Taiwan’s vast industry of private investigators advertising “balance sheets.” matrimonial health ”and“ adultery checks ”- which can be presented to court.
A review by the Justice Department 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 by near by “withdrawn” lawsuits.
In Wendy’s case, dozens of photos were taken by a private investigator showing her with her partner entering and leaving their homes or walking outside, whereas in the past, photos of “adulterous couples” would have taken them. in more intimate moments.
The case was ultimately dismissed this year due to insufficient evidence, but not before his partner’s ex-wife spent $ 100,000 to obtain evidence against the couple.
Wendy says her legal issues are not over yet as she has been threatened with independent lawsuits while divorce proceedings against her partner and future ex-wife continue.
“Honestly, at first I was very, very worried,” Wendy said. “Am I going to go to jail for this?” It’s crazy. But as I started to learn more and more about it, in the end it’s all about the money and it’s sad. She is compensated… but she spent 100,000 US dollars on false evidence. I think someone took advantage of her.