Decades-old Law Fades into History

      November 27, 2009 13:01

      The Constitutional Court ruled on Thursday that a decades-old law that punishes men for having sex with women under the false promises of marriage is unconstitutional, by a majority of six to three. The ruling came in response to a petition filed by two men who had been convicted under the law. It overturned a ruling from as recently as 2002, when only two judges dissented.

      The court said that Article 304 of the Criminal Code challenged sexual equality by putting undue responsibility on men and overly interferes in people's private life in the name of protecting women from men.

      The law penalizing sex under promise of marriage traces its origin to Germany and was included in Korea's Criminal Code in 1953. Germany scrapped the law in 1969. Japan at one point considered it but decided against including it in its criminal law. But Korea maintained it with the aim of protecting women despite calls to scrap it during the last round of revisions to the Criminal Code in 1995.

      Only Turkey, Cuba and Romania still enforce the law nowadays. In Korea, it gradually lost its significance as Koreans became more progressive in their views on sex and felt it was problematic for the state to meddle in sexual relations among consenting adults. Reflecting this shift in mentality, the number of men indicted for violating the law fell from 269 in 1981 to 25 last year. From a social perspective, the law is already mostly dead.

      Feminists see the law as the result of a male-dominated ideology where only women need to be protected. The law fails to treat men and women as equals and does not recognize the rights of women to make their own choices about sex. The Ministry of Gender Equality conveyed its view to the Constitutional Court that the law violated people's constitutional rights, and women's rights groups have now said that the ruling reflects the public views and the trends of the times.

      The law was also criticized for being difficult to enforce where men broke their promise of marriage after sex saying that they changed their minds and punished only those who admitted the offense.

      But there are fears that the Constitutional Court's decision could open the floodgates to a sexual revolution by reflecting the changing values of Korean society. The three judges who opposed the ruling said that punishing men for having sexual relations with women under false pretenses actually protects the rights of women in making their own decisions about sex and is a necessary tool in maintaining social order.

      The remaining task is to come up with measures to protect women in vulnerable situations from violence, harassment and other threats.

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