[Viewpoint] Gender inequality is the reality

The Ministry of Gender Equality recently submitted its position to the Constitutional Court that the clause in the penal code punishing a man on charges of conning a woman into having sex with him under the pretense of marriage is unconstitutional.

The ministry’s view on the matter is linked to a 33-year-old man’s petition to the court requesting a review of the legality of the law after he was indicted on charges of committing the crime.

After the ministry’s position was made public, controversy broke loose. I understand the ministry’s position, but we now have an opportunity to think about the two sides of the gender equality issue.

In 1990, I performed some research into adultery. At the time, a petition was submitted to the Constitutional Court to review the legality of the laws related to punishment for adultery, and women’s groups argued that the clause should be scrapped.

Some male professors perplexed me by saying “thank you” to me. I was young at the time, and I valued equality as a formality and was opposed to the state’s intervention.

Years passed by and I have had various experiences, and my beliefs have changed. I now think that gender equality for Korean women as a formality is necessary, but what’s more important is equality in substance. Therefore, I want to be careful about the latest debate.

There are two main questions. Firstly, should we abolish the law punishing a man for having sex with a woman under the pretense of marriage because it violates gender equality, or should we keep it in order to protect women’s rights? Secondly, should the state intervene in what happens in our beds?

The argument that the law violates the constitutional spirit of gender equality can be accepted as a formal theory. But the situation is different when we think about equality in substance.

In Western society, sexual relations between men and women are more or less free. Women often suffer more than men when a relationship is broken after they have sexual intercourse under the promise of marriage.

In Korea, women are still praised for their chastity, while the same is not true for men. So we must seriously consider this inequality, as it is the reality.

According to official statistics, women filed 784 petitions in 2004 urging law enforcement authorities to investigate men on charges of adultery. In 2005, 703 petitions were filed, and another 764 were filed in 2006. The number dropped to 572 in 2007.

The numbers, however, only include cases where petitions were filed. In reality, there are far more incidents of adultery.

If the statute is abolished, more women will likely be victimized. Although chastity is no longer the strongest virtue of a woman in Korea, it is still influential in the country.

There are some legal clauses governing gender equality - for the sake of formality - but some women are actually victimized by them. In the United States, which promoted gender equality ahead of Korea, housewives who divorced their husbands as well as widows used to receive alimony or pension for the rest of their lives. Now, however, they can only get the money for a short period of time. This shows the unintended outcome when gender equality is promoted for the sake of formality.

The second issue is whether the state has the right to intervene in what happens in our beds. In the past, the state has intervened in sexual issues, linking them to population, public health and ethics. In modern society, the issue of having sex is a matter of the right to make an autonomous decision. It is a matter of privacy, and state intervention has become questionable. In today’s world, state intervention in such affairs goes against the grain.

The reality, however, is more important. Are individuals exercising their sexual autonomy under the premises of gender equality? In Korea, sexual ethics are still discriminatory by gender. Although the law espouses equality, women are often the victims. Therefore, the argument supporting state intervention until gender equality is truly realized is convincing.

Article 304 of Korea’s Penal Code states that “a person who induces a female not habitually immoral to engage in sexual intercourse under pretense of marriage or through other fraudulent means, shall be punished by imprisonment for not more than two years or by a fine not exceeding five million won [$4,058].”

While keeping the statute, the clause should be revised so that “a female” will be replaced with “another person” in order to uphold the constitutional spirit of gender equality.

The Ministry of Gender Equality should also pay more attention to improving gender equality in real life, rather than focusing on formalities. That will make Korea an advanced nation in gender equality.

*The writer is a professor at Hanyang University College of Law.

by Shim Young-hee