Law barring sex under pretense of marriage ruled unconstitutional

The Constitutional Court yesterday ruled unconstitutional a 56-year-old law that makes it illegal for a man to have sexual relations with a woman by making a false marriage offer.

According to Article 304 of Korea’s Penal Code, a person convicted of tricking a woman who is not prone to an “obscene act” into sexual intercourse by falsely agreeing to tie the knot or through fraudulent means is subject to up to two years in prison or up to a 5 million won ($4,328) fine.

The ruling was approved by a 6 to 3 vote among its judges, overturning a 2002 ruling where seven members upheld the constitutionality of the clause. The court said in a statement that the clause “infringes on men’s right to decide on sexual behavior, privacy and freedom.”

The six judges who supported the ruling said the subject of protection is limited to women who have no habit of acting obscenely, thus forcing “sexual ideology based on patriarchy and moralism” on women.

“If a woman, after deciding to have a sexual relationship with a man who demands it, later asks for the court to punish him, that is an act of denying her ‘right to make her own decision to have sex,’” they said. The three judges who opposed the ruling said the clause is “not excessively grave” when the fact that those charged are rarely punished is taken into account. They also said it is difficult to consider the law discriminatory against men.

Last September, the Gender Equality Ministry delivered its opinion to the Constitutional Court that the statute should be removed because it demeans women and goes against the principle of sexual equality. In the same month, a 33-year-old man, identified only as Lim, who was indicted for having sex with one of his female workers on four occasions under pretense of marriage, filed a petition to the court. He claimed the criminal law violates his female partner’s sexual autonomy as well as his own right to pursue happiness.

Following the court ruling, all citizens who have been convicted of the fraud over the past 56 years can apply for a new trial and be acquitted. Those acquitted can file an application for compensation to a local prosecutors’ office. The amount for the compensation can vary from 5,000 won to five times their lowest daily income, per day of incarceration. Prosecutors said they will dismiss all charges now in the system.

However, it is highly likely that only a few people will enjoy the benefit, given that very few have actually been found guilty. According to the Constitutional Court and the Supreme Prosecutors’ Office, there were 709 marriage fraud lawsuits filed in 2006, but only 41 cases came to court. The years 2007 and 2008 saw 33 lawsuits and 25 trials related to the fraud. Fewer than 10 pleaded guilty. In the first seven months of this year, 285 lawsuits were filed. In the 1980s, an annual average of 2,000 cases was filed but 90 percent of them were withdrawn since the issue could be resolved though mutual agreement.

In recent years, courts got involved only in cases concerning married men pretending to be bachelors or those men who married another woman while living with a girlfriend.

Different social groups had varied responses to the decision. The majority of women’s organizations welcomed the move. “As women became increasingly socially active, we are now in a society where a sex issue between men and women should not be resolved through the penal code, but through civil suits,” said Yoon Deuk-kyoung, a researcher at the Korean Women’s Development Institute, a state-run think tank. Lee Eun-shin, a worker at private research center on sexual violence in Korea, said the ruling struck a note of warning against conservative values that link sexual intercourse with marriage.

But a group of housewives devoted to the consumer movement and volunteer work said society still needs to provide protection for women, who they said are still disadvantaged in Korea.

By Seo Ji-eun [spring@joongang.co.kr]