f7ff0636-9075-47f2-8e17-a5ba7be7a3cf (1)

Fordham International Law Journal
Volume 41, Issue 2 Article 4

REGINA A. LOUGHRAN MEMORIAL ISSUE
Punishing Passion: A Comparative Analysis of

Adultery Laws in the United States of America
and Taiwan and their Effects on Women
Alyssa Miller∗
Copyright c by the authors. Fordham International Law Journal is produced by The Berkeley
Electronic Press (bepress). https://ir.lawnet.fordham.edu/ilj
ARTICLE
PUNISHING PASSION:
A COMPARATIVE ANALYSIS OF ADULTERY

LAWS IN THE UNITED STATES OF AMERICA AND
TAIWAN AND THEIR EFFECTS ON WOMEN
By Alyssa Miller*
I. INTRODUCTION ..........................................................................426
II. PAST AND PRESENT: ADULTERY IN SOCIETY ..................427
A. United States .......................................................................428
B. Taiwan ..........................................................................437
III. PRACTICAL EFFECTS AND CONSEQUENCES....................444
A. Sluts and Studs: Social Implications of Adultery ...............445
1. United States .................................................................445
2. Taiwan ...........................................................................450
B. To Poke a Sleeping Bear: Adultery as Provocation ............452
1. United States .................................................................452
2. Taiwan ...........................................................................459
C. Policing the Bedroom: Prosecution and Conviction
Rates for Women...............................................................460
D. The Takeaway.....................................................................461
IV. ARGUING FOR DEREGULATION ..........................................463
A. Eliminating Adultery as a Heat of Passion Crime
Provocation .......................................................................463
B. Decriminalizing Adultery ...................................................465
V. CONCLUSION .............................................................................470
425
426 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 41:425
I. INTRODUCTION
You are married. You have been with your spouse for years and
created a stable life with one another. But, like many couples, you and
your partner start experiencing difficulties. You attempt to fix your
problems for some time, but nothing helps. You turn to friends for
support, but ultimately find solace in bearing your soul to another
person. In a split second, you are consumed by emotions and
consummate this new, forbidden relationship. You are guilty, crushed,
but alive for the first time in years. What happens next?, you ask
yourself. Forced to face the consequences of your actions, you may
hardly think of what the law says about your choices. In many
countries, however, this is at the forefront of a woman’s mind.
Throughout much of the world, criminal punishments for adultery
range from fines to jail time to corporal punishment. Civil penalties
may include loss of property, money, and custody of one’s children.
Cultural and social implications can further complicate matters of the
heart as an adulterer can be publicly shamed or considered an outcast
in a handful of countries. And, as a woman, prosecutions, penalties,
and cultural demonization will fall harsher and disproportionately
more often on you than on your male counterpart. 1
This Article will examine modern legal and cultural attitudes
toward the act of adultery through the lens of two countries: the
United States and Taiwan. Part II explores adultery laws from a
historical standpoint, explaining their cultural underpinnings and
evolutions to current law. Each country’s adultery laws have evolved
significantly since their inception, but critics argue that the rationales
for the current laws—despite changes to make them facially gender
neutral—stem from the same archaic gender norms that are no longer
acceptable in either country. Part III will describe the real-life effects
of these laws, specifically the social and legal ramifications on
* J.D., 2017, Fordham University School of Law; Associate, Fried, Frank, Harris, Shriver
& Jacobson LLP. This author would like to thank Clare Huntington, Chi Mgbako, Jeanmarie
Feinrich, Clara Colombel, and Maria Nudelman for their inspiration and support in the drafting
of this Article.
1. This Article concerns the legal and cultural distinctions between men and women in
situations of adultery, as this is where the law drew its distinctions in the United States and
Taiwan, and where there is a bulk of research. This Article does not explicitly describe the
effects of adultery laws on people of differing sexual orientations or gender identities, though
the conclusions drawn here may nevertheless be applicable to non-heterosexual and/or
transgender people.
2018] ADULTERY LAWS IN THE US AND TAIWAN 427
women in both countries. Importantly, the regulation of adultery in

civil and criminal spheres has had disproportionately discriminatory
effects on women who commit adultery against their husbands, or
women with whom men commit adultery against their own wives.
Finally, Part IV will argue for the deregulation of adultery in the
United States and Taiwan as a matter of gender equality. The proposal
to deregulate demands a scrubbing of each country’s laws to eliminate
references to adultery. As will be explained in the subsequent
sections, decriminalizing adultery and removing it as a heat of passion
provocation to reduce homicide charges from murder to voluntary
manslaughter are concrete ways to stop the direct discriminatory
effects these laws have on US and Taiwanese women. In addition,
changing both countries’ laws may also initiate a cultural shift that
reduces the indirect social repercussions adulterous women and
mistresses suffer at higher incidence than adulterous men.
II. PAST AND PRESENT: ADULTERY IN SOCIETY

The legal systems of the United States and Taiwan differ
considerably. Like roughly 150 countries, Taiwan employs a civil law
system that enables strict application of its statewide code. 2
Alternatively, the United States is one of approximately eighty
common law countries in which binding legal precedent created by
judicial opinions gives rise to comparatively flexible interpretations of
statutes. 3 Thus, in Taiwan, legislators have the greatest power to
2. Piyali Siyam, What is the Difference between Common Law and Civil Law?, WASH.
U. L. BLOG (Jan. 28, 2014), https://onlinelaw.wustl.edu/blog/common-law-vs-civil-law/
[https://perma.cc/Q4ZL-9QWE] (archived Jan. 2, 2018); see also William Tetley, Mixed
Jurisdictions: Common Law v. Civil Law (Codified and Uncodified), 60 LA. L. REV. 677, 683
(2000) (describing a civil law system). As civil law systems are generally “highly systematized
and structured,” it is noted that civil law courts often use broad principles and tend to ignore
case details for the sake of consistency and exhaustiveness. This system attempts to create a
legal climate that is “simple, nontechnical, and straightforward.” Sabrina DeFabritiis, Lost in
Translation: Oral Advocacy in A Land Without Binding Precedent, 35 SUFFOLK TRANSNAT’L
L. REV. 301, 309-10 (2012).
3. Siyam, supra note 2; Janet H. Moore, Cross-Border Litigation: Preparing for Cultural
Nuances, 63 THE ADVOC. (TEXAS) 38, 38 (Summer 2013) (explaining how the common law
judiciary plays a powerful role in interpreting statutes and setting precedent). In this system,
courts pay close attention to the details of each case to ensure consistency with prior case law,
which expounds on or adds to the national or state code. The United States has a hierarchal
court system, where higher courts of the same jurisdiction decide cases that become binding
precedent for the lower courts. This gives judges the ability to mold statutes using myriad
create and define law, but in the United States the onus rests on
legislators to generate statutes while judges (with the help of lawyers)
flesh out law as it should be implemented. 4 The following subsections
provide a brief overview and history of adultery laws in Taiwan and
the United States. Appreciation of the divergent legal systems in both
countries is imperative to understand not only the influence of
adultery laws on the countries’ citizens, but also the influence of
culture on adultery laws.
A. United States
Laws against adultery in the United States have deep puritan
roots, stemming from England’s ecclesiastical courts prior to
founding the country. 5 Since the colonial era, adultery in the United
States was considered a wrong against morality and chastity, meriting
civil and criminal consequences. 6 In fact, Puritan colonialists in New
England were so concerned with England’s rampant “moral
corruption,” they made adultery with a married woman a capital
offense. 7 Most early state jurisdictions followed suit by criminalizing
adultery, though not always as a capital offense. 8 Prosecution of
adulterers declined significantly after the eighteenth and nineteenth
centuries; statutes went generally unenforced, and the discovery of an
adulterous affair was occasionally used as blackmail, which led the
factors and sources, playing an important role in understanding how the law should be
understood and applied. See DeFabritiis, supra note 2, at 305-08.
4. See generally DeFabritiis, supra note 2.
5. Jeremy D. Weinstein, Adultery, Law, and the State: A History, 38 HASTINGS L.J. 195,
227 (1986) (“Thus, Puritanism, and the absence of any ecclesiastical jurisdiction, led to the
incorporation of sanctions against adultery in American criminal law[.]”); see also United
States v. Clapox, 35 F. 575, 578 (D. Or. 1888) (discussing how American common law was
used to address adultery because America did not have ecclesiastical courts); Commonwealth
v. Call, 38 Mass. (1 Pick.) 509, 513 (1839) (discussing how American laws prohibiting
adultery stem from England’s ecclesiastical courts).
6. Gabrielle Viator, The Validity of Criminal Adultery Prohibitions After Lawrence v.
Texas, 39 SUFFOLK U. L. REV. 837, 837 (2006); see, e.g., Weinstein, supra note 5, at 225.
7. See Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution, 30
J. FAM. L. 45, 48 (1991) (explaining how Puritan colonialists made adultery a capital offense);
see also Viator, supra note 6, at 842 (discussing lack of prosecution of adultery crimes and the
American Law Institute’s recommendation of decriminalization).
8. Viator, supra note 6, at 841; Weinstein, supra note 5, at 225.
American Law Institute to recommend the decriminalization of

adultery across the board in 1962. 9
However, moral opposition to adultery lived on in the law. Many
states not only maintained their criminal adultery sanctions, but also
created civil penalties for the act. For example, because a wife was
considered her husband’s property, adultery was a civil injury to an
innocent husband 10: having sexual relations with another man’s wife
was a trespass on his property despite whether the act was forced or
consensual, as it was assumed that “respectable women” would never
consent to be tainted by sexual impurity. 11 Alternatively, the common
law was concerned with “foisting spurious offspring upon her
unsuspecting husband” and the effects this would have on inheritance
and property rights, illuminating how adultery put men at risk of
raising and paying for a child not his own. 12 Thus, civil remedies to
address these issues were available to husbands into the twentieth
century 13 : claims of trespass, 14 torts of outrage, 15 and alienation of
9. MODEL PENAL CODE §213.6(3) (AM. LAW INST., Proposed Official Draft 1962) (note
on adultery and fornication); Viator, supra note 6, at 841.
10. Viator, supra note 6, at 841-42; Weinstein, supra note 5, at 225; Phyllis Coleman,
Who’s Been Sleeping in My Bed? You and Me, and the State Makes Three, 24 IND. L. REV.
399, 402 (1991) (“Fidelity was essential to protect the husband’s ‘property’ interest in his
wife… .”); see also McClure’s Ex’rs v. Miller, 11 N.C.(1 Hawks) 133, 140 (1825) (“[In a case
of adultery], the wife, who is a servant, consents, and yet her husband may have trespass; it
may be answered that the case is one sui generis; the husband has, so to speak, a property in
the body, a right to the personal enjoyment of his wife; for an invasion of this right the law
permits him to sue as husband[.]”). The law did not care about the woman’s consent to the
sexual acts as the husband had an “interest” in her—her consent was considered “not
competent.” See Bedan v. Turney, 99 Cal. 649, 653-54 (1893) (discussing how consent is not a
factor in considering whether sexual intercourse with one’s wife is a trespass on the husband’s
property); see also, Egbert v. Greenwalt, 44 Mich. 245, 246 (1880) (discussing how a wife’s
consent to adultery is unimportant in a trespass claim by a husband against the wife’s sexual
partner or abuser).
11. See Joanna L. Grossman & Lawrence M. Friedman, Elizabeth Edwards v. Andrew
Young: Can He Be Held Liable for Contributing to the Failure of the Edwardses’ Marriage?,
FINDLAW (Feb. 19, 2010), http://supreme.findlaw.com/legal-commentary/elizabeth-edwards-
v-andrew-young-can-he-be-held-liable-for-contributing-to-the-failure-of-the-edwardses-
marriage.html [https://perma.cc/D5M5-RT98] (archived Jan. 2, 2018) (noting that policies
against adultery were aimed at “protecting delicate and innocent women from temptation and
debauchery”).
12. Viator, supra note 6, at 840-41 (quoting CHARLES E. TORCIA, WHARTON’S
CRIMINAL LAW § 210, 528-29 (15th ed. 1994)); see also State v. Lash, 16 N.J.L. 380 (N.J.
Sup. Ct. 1838).
13. See Tinker v. Colwell, 193 U.S. 473, 485 (1904) (allowing a husband to prevail on a
cause of action based on the idea that adultery with his wife is a “violation of the marital rights
of the husband in the person of his wife…an injury to the person and also to the property rights
affection and criminal conversation 16 gave husbands the opportunity

to receive monetary damages from his wife’s paramour. 17 As time
progressed, courts steered away from viewing sexual purity and the
rights of husbands to their wives as legitimate causes of action, so
over forty states instated statutory bars against these “amatory claims”
(commonly known as Heart Balm Acts) against a spouse’s
paramour. 18 Nonetheless, the contemplation of adultery as an injury to
of the husband.”); Oppenheim v. Kridel, 236 N.Y. 156, 161 (1923) (“The statements that he
had a property interest in her body and a right to the personal enjoyment of his wife are archaic
unless used in a refined sense worthy of the times and which give to the wife the same interest
in her husband.”); see also Coleman, supra note 10, at 415 n. 72.
14. See supra note 10 and accompanying text.
15 . See e.g., Arlinghaus v. Gallenstein, 115 S.W.3d 351, 352 (Ky. Ct. App. 2003)
(describing how, though adultery on its own is not grounds for liability, the existence of a
special relationship and duty of care could make adulterous conduct “outrageous” and thus
incur liability).
16. See, e.g., Saunders v. Alford, 607 So. 2d 1214, 1215 (Miss. 1992) (“The elements of
a cause of action have been recognized by some courts as: (1) wrongful conduct of the
defendant; (2) loss of affection or consortium; and (3) causal connection between such conduct
and loss.”); Fitch v. Valentine, 959 So. 2d 1012, 1025 (Miss. 2007) (reiterating the elements of
the tort of alienation of affections and its continued relevance); Hutelmyer v. Cox, 133 N.C.
App. 364, 369-70 (1999) (describing the elements of alienation of affections).
17. See generally Grossman & Friedman, supra note 11; Fernanda Nicola, What’s Love
Got to Do with It?: Stereotypical Women in Dispositionist Torts, in IDEOLOGY, PSYCHOLOGY,
AND LAW 662-72 (Jon Hanson ed., 2012).
18. Grossman & Friedman, supra note 11; Heart Bam Torts & Alienation of Affection,
ARNOLD & SMITH PLLC, https://www.arnoldsmithlaw.com/heart-balm-torts-alienation-of-
affection.html [https://perma.cc/9NGX-A92E] (last visited Jan. 2, 2018); R.A.C. v. P.J.S., 880
A.2d 1179, 1192 (App. Div. 2005) rev’d sub nom. R.A.C. v. P.J.S., Jr., 192 N.J. 81, 927 A.2d
97 (2007) (describing the Heart Balm Act, which bans claims of “criminal conversation,
seduction, alienation of affections, and breach of a promise to marry.”); see e.g., MASS. GEN.
LAWS ANN. ch. 207, § 47B (1985) (“Alienation of affection and criminal conversation shall
not constitute an injury or wrong recognized by law, and no action, suit or proceeding shall be
maintained therefor.”); N.J. STAT. ANN. § 2A:23-1 (“The rights of action formerly existing to
recover sums of money as damage for the alienation of affections, criminal conversation,
seduction or breach of contract to marry are abolished from and after June 27, 1935.”); Doe v.
Doe, 358 Md. 113, 121, 747 A.2d 617, 621 (2000) (noting a husband cannot bring a tort claim
against an adulterous wife for the same conduct that would have once been considered
“criminal conversation,” a tort abandoned for public policy reasons); Marjorie A. Shields,
Annotation, Action for Intentional Infliction of Emotional Distress Against Paramours, 99
A.L.R. 5th 445 (2002) (“[T]he causes of action for alienation of affections and criminal
conversation have been abolished, it is generally recognized that a plaintiff cannot mask one of
the abolished actions behind a common-law label such as intentional infliction of emotional
distress. However, if the essence of the complaint is directed to a cause of action other than
one that is abolished, it has been found to be legally recognizable.”); Bailey v. Searles-Bailey,
746 N.E.2d 1159 (2000) (explaining that though adultery alone is barred as grounds to claim
intentional infliction of emotional distress, there may be severe emotional distress associated
a spouse is still relevant in the US legal system. 19 Some states, such as

North Carolina, still allow amatory claims or claims of negligent or
intentional infliction of emotional distress to address a spouse’s
adultery, in which the adulterous spouse can be held liable for
damages as well. 20 The laws are now defended as a “device to
preserve marital stability,” rather than a way to protect the chastity of
women. 21
Even in states that disallow such claims, courts have repeatedly
acknowledged the emotional harm experienced from adultery. 22 Thus,
penalties for adulterous spouses represented a “victim-oriented
approach” to addressing these injuries. 23 Though the definition of
adultery varies slightly in each jurisdiction, it is a ground for divorce
in thirty of the thirty-two states that continue to recognize a fault-
based system. 24 Adultery as a ground for fault divorce was not
with discovering the couple’s child was not his biological child, but born from an adulterous
affair); Quinn v. Walsh, 732 N.E.2d 330 (2000) (describing how cases that do not
meaningfully differentiate from claims of alienation of affection or criminal conversation
cannot be brought as claims of intentional infliction of emotional distress).
19. See Michael Gilding, Paternity Uncertainty and Evolutionary Psychology: How a
Seemingly Capricious Occurrence Fails to Follow Laws of Greater Generality, SAGE J. (Feb.
2009), http://soc.sagepub.com/content/43/1/140 [https://perma.cc/SCQ8-SA42] (archived Jan.
2, 2018); Rebecca Adams, Study Suggests Men and Women May View Cheating Very
Differently, HUFFINGTON POST (Jan. 13, 2015), http://www.huffingtonpost.
com/2015/01/13/men-and-women-cheating_n_6462278.html [https://perma.cc/T5YT-M93D]
(archived Jan. 2, 2018).
20. Heart Balm Torts & Alienation of Affection, supra note 18.
21. Grossman & Friedman, supra note 11.
22. See, e.g., Oliverson v. W. Valley City, 875 F. Supp. 1465, 1484 (D. Utah 1995)
(discussing adultery’s emotional costs); S.B. v. S.J.B, 609 A.2d 124 (N.J. Super. Ct. Ch. Div.
1992) (describing how, despite the gender of a spouse’s paramour, adultery is the act of
“reject[ing] the other by entering into a personal intimate sexual relationship” with another
person); see also Coleman, supra note 10, at 412 (“[F]aithful spouses may be injured if they
discover their partners’ dishonesty.”).
23 . See Brett R. Turner, Justice Scalia’s “Wild Ride”: Lawrence v. Texas and the
Constitutionality of Penalizing Adultery, 17 NO. 7 DIVORCE LITIG. 109 (2005) (“Indeed, even
as a matter of pure policy, the law of adultery is increasingly moving toward a victim-oriented
approach. Only one set of measures penalizing adultery is applied sufficiently often to
constitute a meaningful deterrent: provisions limiting marital property and spousal support
awards to guilty spouses.”); see also Viator, supra note 6, at 856 (“Adultery is not a
‘victimless crime’ in that it often involves injury to a spouse or children and the emotional
costs incurred are often substantial.”).
24. For example, compare In re Blanchflower, 834 A.2d 1010 (N.H. 2003) (holding that
adultery, as statutory ground for divorce, does not include homosexual relationships), with
RGM v. DEM, 410 S.E.2d 564, 567 (S.C. 1991) (holding that adultery does include
homosexual relationships), and S.B. v. S.J.B., 609 A.2d 124, 127 (N.J. Super. Ct. Ch. Div.
originally designed to punish a guilty spouse, but to be a “sanctioned

excuse from one’s marriage vows” when an adulterous spouse
breached the marriage contract and failed to meet his/her
responsibilities as a marital partner. 25
The potential repercussions of an adultery-related fault divorce
(or even a showing that one’s spouse was unfaithful in a no-fault
divorce) were and continue to be largely negative toward the
adulterous spouse, and even more toward an adulterous wife due to
the nature of marital dependency in the United States. 26 First,
depending on the jurisdiction, adultery may affect spousal support
(alimony). In four states, adultery is a complete bar to alimony, 27 and
some states use adultery as a factor in determining how much alimony
1992) (holding a wife’s lesbian relationship constituted “adultery,” so as to permit her husband
to bring a cause of action for divorce). See also non-intercourse as grounds for adultery:
Rosser v. Rosser, 355 So. 2d 717, 720 (Ala. Civ. App. 1977) (acts of fellatio); Menge v.
Menge, 491 So. 2d 700, 702 (La. Ct. App. 1986) (oral sex). See ALA. CODE § 30-2-1(a)(2)
(1989); ALASKA STAT. § 25.24.050(2) (1996); ARK. CODE ANN. § 9-12-301(5) (1993); CONN.
GEN. STAT. ANN. § 46b-40(c)(3) (1995); DEL. CODE ANN. tit. 13, § 1505(b)(2) (1993); D.C.
CODE ANN. § 16-904(b)(3) (1997); GA. CODE ANN. § 19-5-3(6) (1991); IDAHO CODE ANN. §
32-604 (1996); 750 ILL. COMP. ANN. STAT. § 5/501(a)(1) (1993); LA. CIV. CODE ANN. art.
103(2) (1993); MD. CODE ANN., FAM. LAW § 7-103(a)(1) (1991); MASS. GEN. ANN. LAWS ch.
208, § 1 (1987); MISS. CODE ANN. § 93-5-1 (1994); N.H. REV. STAT. ANN. § 458:7(II) (1992);
N.J. STAT. ANN. § 2A:34-2(a) (1987); N.M. STAT. ANN. § 40-4-1(C) (1994); N.Y. DOM. REL.
LAW § 170(4) (1988); N.D. CENT. CODE § 14-05-03(1) (1991); OHIO REV. CODE ANN. §
3105.01(C) (1995); OKLA. STAT. ANN. tit. 43, § 101 (2014); 23 PA. STAT. AND CONS. STAT.
ANN. § 3301(a)(2) (1991); 15 R.I. GEN. LAWS § 15-5-2 (1996); S.C. CODE ANN. § 20-3-10
(1976); S.D. CODIFIED LAWS § 25-4-2(1) (1992); TENN. CODE ANN. § 36-4-101(a)(3) (1956);
TEX. FAM. CODE § 6.003 (1997); UTAH CODE ANN. § 30-3-1(3)(b) (1995); VT. STAT. ANN. tit.
15, § 551(1) (1989); VA. CODE ANN. § 20-91(A)(1) (1996); W. VA. CODE § 48-5-204 (2001).
Notably, since 2010, all 50 states permit “no-fault” divorces, allowing spouses to divorce
without allocating blame on the other spouse. See N.Y. DOM. REL. LAW § 170(7) (1988); see
generally Townes v. Coker, 943 N.Y.S.2d 823 (Sup. Ct. 2012).
25. Karen Turnage Boyd, The Tale of Two Systems: How Integrated Divorce Laws Can
Remedy the Unintended Effects of Pure No-Fault Divorce, 12 CARDOZO J.L. & GENDER 609,
611 (2006); see also Harvey L. Golden & J. Michael Taylor, Dueling Over the Issue of Fault:
Fault Enforces Accountability, 10 FAM. ADVOC. 11, 11-12 (1987).
26. See infra notes 27-33 and accompanying text. It is worth noting the burden of proof
for adultery in divorce proceedings ranges from a preponderance of the evidence to clear and
convincing evidence depending on the jurisdiction. See, e.g., Sibley v. Sibley, 693 So. 2d
1270, 1271 (La. Ct. App. 1st Cir. 1997) (clear and convincing); Michael D.C. v. Wanda L.C.,
497 S.E.2d 531, 535 (1997) (clear and convincing); Crawford v. Crawford, 633 A.2d 155, 159
(1993) (clear and convincing); Perry v. Perry, 390 S.E.2d 480, 481 (Ct. App. 1990)
(preponderance); Gilliam v. Gilliam, 776 S.W.2d 81, 84 (Tenn. Ct. App. 1988)
(preponderance).
27. West Virginia, Georgia, North Carolina, and South Carolina. See Proof of Adultery
as Grounds for Marriage Dissolution, 49 AM. JUR. Proof of Facts 3d 277 §5 (1998).
to award a spouse. 28 Adultery may also influence the division of

marital property. 29 Thus, an aggrieved spouse may receive the
advantage of limiting support for the adulterous spouse if the
adulterous spouse is the under-earner. 30 As women are more likely to
be dependent spouses or in need of assistance after divorce, this fault-
bar policy economically disadvantages women in divorce
proceedings. 31 Second, a wife’s adultery was historically seen as
proof of parental unfitness in child custody proceedings: if a mother’s
life is “dominated by the carnal desires of the flesh,” it would
influence the child’s life and character. 32 Though adultery no longer
creates a “presumption of unfitness” in child custody matters, courts
may still deny an adulterous spouse custody if the adultery had a
detrimental effect on the children or through a showing that the
adultery contributes to the parent’s moral unfitness. 33
28. See e.g., MD. CODE ANN., FAM. LAW § 11-106(b)(6) (LexisNexis, current through
Oct. 1, 2017, of the 2017 Regular Session of the Maryland General Assembly); VA. CODE
ANN. § 20-107.1 (LexisNexis, current through the 2017 Regular Session of the General
Assembly).
29. See e.g., Halleman v. Halleman, 379 S.W.3d 443, 452 (Tex. App. 2012) (noting
“fault of the breakup of the marriage” as a factor in determining division of marital assets);
Smith v. Smith, 433 S.E.2d 196, 221 (1993) rev’d in part, 444 S.E.2d 420 (1994) (noting that
marital misconduct that dissipates or reduces the value of marital assets for non-marital
purposes can be considered when dividing marital property); see also In re Estate of
Montgomery, 528 S.E.2d 618, 620 (2000) (describing how a spouse may lose the right to
administer the estate of his/her deceased spouse if he/she “lives in adultery”). But see AM.
JUR. Proof of Facts, supra note 27; see e.g., Childers v. Childers, 640 So. 2d 108, 109 (Fla.
Dist. Ct. App.1994); Newton v. Newton, 667 N.Y.S.2d 778, 766 (N.Y.1998); Wilkerson v.
Wilkerson, 719 So. 2d 235 (Ala. Civ. App. 1998), reh’g denied (Apr. 17, 1998) and cert.
denied (July 17, 1998).
30. See generally Turner, supra note 23 (discussing how penalizing adultery results in
limiting marital property and spousal support awards to guilty spouses).
31. See Turner, supra note 23, at 7 (discussing the fault-bar policy, in which an
adulterous spouse can be barred from receiving alimony, and how it has a disproportionate
effect on wives because they are more likely to be the dependent spouses); see also ANN
CRITTENDEN, THE PRICE OF MOTHERHOOD 152 (2002) (discussing how women are
economically disadvantaged in divorce proceedings).
32. Hanby v. Hanby, 158 So. 727, 728 (Ala. 1935); see also Ex parte Pankey, 848 So. 2d
963, 973 (Ala. 2002) (Moore, C.J., dissenting) (opining that adultery creates a “presumption of
[parental] unfitness”).
33. See e.g., Bower v. Bower, 758 So. 2d 405, 412 (Miss. 2000) (describing adultery as a
factor to consider when the conduct “manifests itself into the moral fitness of a parent to raise
a child”); White v. White, 166 So. 3d 574, 586-87 (Miss. Ct. App. 2015) (“[A]dultery is a
factor to be considered in evaluating moral fitness, though not given “undue weight.”);
Bamburg v. Bamburg, 386 S.W.3d 31, 38 (2011) (“Evidence of an extramarital affair is but
one factor the trial court is to consider in deciding what custody arrangement serves the best
Twenty states continue to keep adultery on the books as a

criminal provision 34 with punishments ranging from a ten-dollar fine
to felony charges, 35 but adultery is rarely prosecuted in the United
States. 36 Nevertheless, the United States’ de facto lack of criminal
interest of a child.”); Murphree v. Murphree, 579 So. 2d 634, 636 (Ala. Civ. App. 1991)
(“Before custody may be denied on the basis of [adulterous] behavior, there must be evidence
showing that such misconduct is detrimental to the child.”); Moeller v. Moeller, 714 S.E.2d
898, 902 (Ct. App. 2011) (reversing the trial court’s decision to place custody with the father
on account of the mother’s adultery because there was “no evidence the [adulterous]
relationship had any detrimental effect” on the children); AM. JUR. Proof of Facts, supra note
27. But see Ex parte Pankey, 848 So. 2d 963, 973 (Ala. 2002) (Moore, C.J., dissenting)
(opining that adultery creates a “presumption of [parental] unfitness”); Ex parte Walters, 580
So. 2d 1352, 1353 (Ala. 1991) (concluding that the trial court giving custody to the husband
based in part on the wife’s adultery was “adequately supported by the record”); Alonzo v.
Alonzo, 628 So. 2d 749, 749-50 (Ala. Civ. App. 1993) (affirming a custody determination in
favor of a father primarily based on a mother’s adultery despite admitting that “the mother is a
good and caring mother”).
34. States include Alabama, Arizona, Florida, Georgia, Idaho, Illinois, Kansas, Maryland,
Massachusetts, Michigan, Minnesota, Mississippi, New York, North Carolina, Oklahoma,
Rhode Island, South Carolina, Utah, Virginia and Wisconsin. The offense is generally defined
as sexual relations between a married person and a third party that is not his/her spouse. GA.
CODE ANN. § 16-6-19 (West 2017); IDAHO CODE ANN. § 18-6601 (West 2017); N.Y. PENAL
LAW § 255.17 (McKinney 1965); 1956 R.I. GEN. LAWS § 11-6-2; UTAH CODE ANN. § 76-7-
103 (West 2017); VA CODE ANN. § 18.2-365 (1975). Some statutes provide for penalization of
not only the married person, but also the third party; the third person may be prosecuted
regardless of his/her marital status. ARIZ. REV. STAT. ANN. § 13-1408 (1977); FLA. STAT.
ANN. § 798.01 (West 2017); MASS. GEN. LAWS ANN. ch. 272, § 14 (West 2017); MICH.
COMP. LAWS ANN. §750.29 (West 2017); MISS. CODE ANN. §97-29-1 (West 2017); WIS.
STAT. ANN. § 944.16 (West). State codes occasionally require a specific mens rea from the
third party. 720 ILL. COMP. STAT. ANN. 5/11-35 (West 1961); KAN. STAT. ANN. § 21-5511
(West 2017). Several states necessitate cohabitation between the married and third parties.
ALA. CODE § 13A-13-2 (1975); MISS. CODE ANN. § 97-29-1 (West 2017); OKLA. STAT. ANN.
tit. 2, § 871-72 (West 2017); S.C. CODE ANN. § 16-15-60 (1976); N.C. GEN. STAT. ANN. §
14-184 (West 2017) (ruled unconstitutional in Hobbs v. Smith, No. 05 CVS 267, 2006 WL
3103008 at 1* (N.C. Super. Ct., Aug. 25, 2006)).
35. See MD. CODE ANN., Crim. Law § 10-501 (West 2017) (punishing adultery with a
fine); MICH. COMP. LAWS ANN. § 750.29-30 (West 2017); OKLA. STAT. ANN. tit. 21, § 871-
72(West 2017); WIS. STAT. ANN. § 944.16 (West 2017); see also, Jenny Jarvie, Life sentence
for adultery? Could be / Furor in Michigan when appeals judge says that’s exactly what state
law means, SF GATE (Jan. 24, 2007, 4:00 AM), http://www.sfgate.com/news/article/Life-
sentence-for-adultery-Could-be-Furor-in-2621946.php (describing how first degree criminal
sexual conduct includes sexual penetration involving a felony, and because adultery is a
felony, the act “could result in life imprisonment”); Coleman, supra note 10, at 409 (arguing
that adultery statutes should be repealed because police, prosecutors, and judges implicitly
conspire to reject them by refusing to enforce them).
36. Viator, supra note 6, at 860 (“Despite statistics revealing that an overwhelming
percentage of spouses commit adultery, those states that retain the prohibition almost never
enforce it.”); Ethan Bronner, Adultery, an Ancient Crime That Remains on Many Books, N.Y.
regulation does not imply a moral or cultural approval of adultery. In

fact, it receives near unanimous disapproval from the public: ninety-
one percent of Americans find married people having an affair
“morally wrong,” a rate nearly twice as large as it was forty years
ago. 37 Thus, the continued regulation of adultery acts primarily as
“morals legislation” and is aimed, though ineffectively, at deterring
immoral behavior. 38 States and supporters justify a continued
prohibition of adultery as protecting innocent spouses from harm and
protecting the public institution of marriage. 39 Adultery is still
believed to harm the fabric of society and penalizing this behavior
attempts to prevent such deterioration from occurring. 40 As will be
TIMES (Nov. 14, 2012), http://www.nytimes.com/2012/11/15/us/adultery-an-ancient-crime-

still-on-many-books.html; see Coleman, supra note 10, at 409 (arguing that adultery statutes
should be repealed because police, prosecutors, and judges implicitly conspire to reject them
by refusing to enforce them).
37. Frank Newport & Igor Himelfarb, In U.S., Record-High Say Gay, Lesbian Relations
Morally OK, GALLUP (May 20, 2013), http://www.gallup.com/poll/162689/record-high-say-
gay-lesbian-relations-morally.aspx; see also, Hugo Schwyzer, How Marital Infidelity Became
America’s Last Sexual Taboo, ATLANTIC (May 23, 2013), http://www.theatlantic.com/
sexes/archive/2013/05/how-marital-infidelity-became-americas-last-sexual-taboo/276341/
[https://perma.cc/C7SS-RCFG] (archived Jan. 2, 2018).
38. Lawrence v. Texas, 539 U.S. 558, 599 (Scalia, J., dissenting) (noting adultery as one
of the numerous crimes justified on moral grounds); Viator, supra note 6, at 859 (“[T]he
overwhelming prevalence of adultery in our society proves that criminal prohibition is not a
deterrent.”); Michelle Boorstein, Va. Adultery Case Goes From Notable to a Nonevent, WASH.
POST (Aug. 25, 2004), http://www.washingtonpost.com/wp-dyn/articles/A30306-2004Aug24.
html [https://perma.cc/U3XF-JVN9] (archived Jan. 2, 2018) (“[A]s far as general deterrence, it
should now be widely known that adultery is a crime in Virginia.”).
39. Viator, supra note 6, at 856-58 (explaining state interests in criminalizing adultery
through the harm principle and abuse of the institution of marriage); Coleman, supra note 10,
at 400-01; Jolie Lee, New Hampshire Senate votes to repeal anti-adultery law, USA TODAY
(Apr. 17, 2014, 4:39 PM), http://www.usatoday.com/story/news/nation-now/2014/04/17/anti-
adultery-laws-new-hampshire/7780563/ [https://perma.cc/DG6V-6V4V] (archived Jan. 2,
2018); see Jonathan Turley, Adultery, in many states, is still a crime, USA TODAY (Apr. 25,
2010, 3:29 PM), http://usatoday30.usatoday.com/news/opinion/forum/2010-04-26-column26_
ST_N.htm [https://perma.cc/PMP3-2433] (archived Jan. 2, 2018) (“Social conservatives,
however, insist that such laws are needed to back up moral dictates with criminal sanctions.”).
While many outdated statutes remain on the books without question, it is the intention of this
author to show that the negative effects of adultery regulation outweigh any positive moral
implications.
40. JOYCELYN M. POLLOCK, CRIMINAL LAW 351 (Scott, 10th ed. 2013); Patrick Devlin,
Enforcement of Morals vs. Harm Principle, VICE, CRIME, & AM. LAW, http://web.uncg.
edu/dcl/courses/viceCrime/pdf/m2.pdf [https://perma.cc/88JJ-UBYD] (last visited Jan. 2,
2018) (“Society may not be able to make people be virtuous, but this does not mean we cannot
punish vice. Adultery may involve consenting adults, but when it breaks up a marriage it is
harmful to society. Even if the purpose of law is simply to protect society, then these behaviors
discussed in Part III, it is this moral disapproval conflated with the

distinctly patriarchal legal history described above that causes
continued discrimination toward adulterous women and mistresses in
American society. 41
must be restricted.”). But see Coleman, supra note 10 (noting how adultery laws fail to
adequately deter and punish violators).
41. See infra Part II. Notably, since Lawrence v. Texas, many wonder whether the
criminalization of adultery is constitutional at all. Lawrence, 539 U.S. at 558 (holding anti-
sodomy laws unconstitutional because intimate consensual sexual conduct is a liberty interest
protected by the 14th Amendment); see Viator, supra note 6, at 860 (“The Supreme Court’s
recent ruling in Lawrence v. Texas, however, suggests that morality is no longer a sufficient
justification for the intrusion into private life that an adultery prosecution would impose.”);
Bronner, supra note 36 (considering the constitutionality of adultery laws with respect to the
harm adultery causes spouses and children). Additionally, due to the recent Supreme Court
opinion legalizing marriage between same-sex couples, some adultery statutes may be invalid
as a matter of discrimination based on marital status (i.e., statutes prohibiting adultery between
a “husband” and “wife” discriminates unfairly against heterosexual spouses, as same-sex
spouses can never be implicated for such a crime). This argument has been successful at least
once in repealing the crime of adultery. Citizens and lawmakers have pushed back, contending
adultery laws disregard the right to privacy. One prominent example involves the prosecution
of John Raymond Bushey. After admitting to adultery in a Virginia district court, he later
withdrew his plea to work with the ACLU in challenging the validity of the adultery statute.
However, he was unsuccessful. See John F. Kelly, Virginia Adultery Case Roils Divorce
Industry; Conviction Draws Attention to Little-Used Law, WASH. POST, Dec. 1, 2003, at B1;
Turley, supra note 39. Discussing the relationship between the privacy afforded to same-sex
marriages and how this may apply to the context of extra-marital relationships, Viator states:
Because adultery involves a private sexual relationship between consenting adults, it
implicates a similar liberty interest to that addressed by the Lawrence court. The
Court recognized that liberty provides substantial protection to adults in decisions
regarding their private sexual conduct. Arguably, the decision of an individual to
commit adultery is such a decision—sufficiently similar to other personal choices
regarding marriage, family, procreation, contraception, and sexuality as to fall
within this protected zone of privacy. Furthermore, the choice of one spouse
regarding how to address the adultery of the other seems an intimately personal
decision regarding the marital relationship worthy of protection from state intrusion.
Moreover, the mutual decision of a husband and wife to engage in a sexually non-
monogamous marriage would seem to warrant protection as a private marital choice.
In the majority of jurisdictions where adultery remains a crime, however, each of
these scenarios is subject to state intrusion.
Viator, supra note 6, at 853-54. See generally, Coleman, supra note 10. Due to lack of
prosecution and political will, decriminalization has been slow (if not resisted) in many
states.
B. Taiwan
The overwhelming majority of Taiwan’s population is composed
of several generations of Chinese migrants. 42 Though rule over the
island changed hands several times in its history, traditional
Confucian values dominate Taiwanese family culture. 43 Confucian
teachings on appropriate social, political, and moral behavior pose
marriage at the core of Taiwanese government: the duties of husband
and wife are one of few “universal obligations.” 44 However,
Confucian priority on expanding the family tree also created
discrepancies between Taiwanese wives and husbands: because
failure to produce an heir was “the greatest offense against one’s
ancestors,” 45 men could legally take concubines while women’s
infidelity was heavily regulated. 46 The cultural pressure for men to
reproduce allowed men to take as many concubines as was financially
feasible, 47 but extramarital affairs were legally enforceable rationales
for divorce and criminally sanctioned against adulterous wives 48:
42. ARLAND THORNTON & HUI-SHENG LIN, SOCIAL CHANGE AND THE FAMILY IN
TAIWAN 2, 6 (1994) (noting that Chinese migrants to Taiwan brought “basic elements of
historical Chinese culture” to the island and similarities remained constant into the 20th
century). See also TAY-SHENG WANG, LEGAL REFORM IN TAIWAN UNDER JAPANESE
COLONIAL RULE, 1895-1945 58 (2000).
43. THORNTON & LIN, supra note 42, at 2 (noting that Chinese migrants to Taiwan
brought “basic elements of historical Chinese culture” to the island and similarities remained
constant into the 20th century). See also Wang, supra note 42, at 58.
44. See generally LEONARD SHIHLIEN HSÜ, THE POLITICAL PHILOSOPHY OF
CONFUCIANISM (1932); MILES MENANDER DAWSON, THE ETHICS OF CONFUCIUS 140-41
(1915); DORIS T. CHANG, WOMEN’S MOVEMENTS IN TWENTIETH-CENTURY TAIWAN 23-24
(2009) (noting that husband and wife is one of five types of human relationships, four of which
are male-centered and dominated).
45. CHANG, supra note 44, at 24-25; WANG, supra note 42, at 59; THORNTON & LIN,
supra note 42, at 44 (noting the “strong emphasis” on having children and the possibility of
taking a concubine in response to a first wife’s infertility); Chao-Ju Chen, Mothering under the
Shadow of Patriarchy: The Legal Regulation of Motherhood and its Discontents in Taiwan, 1
NYU L. REV. 45, 48 (2006) (“Traditionally, it was legitimate to divorce a wife who failed in
her mission to produce male offspring, and this failure would also entitle the husband to take
concubines who would bear him children.”).
46. LI-JU LEE, SEXUAL FREEDOM IN THE SHADOW OF MARITAL FAMILY: CONSTITUTION
AND THE ADULTERY DECRIMINALIZATION CONTROVERSY IN TAIWAN (2014). See also
YENNA WU, LI ANG’S VISIONARY CHALLENGES TO GENDER, SEX, AND POLITICS 41 (2014)
(discussing modern supporters of the concubinage system).
47. WU, supra note 46, at 47 (discussing modern supporters of the concubinage system);
THORNTON & LIN, supra note 42, at 44 (noting the “strong emphasis” on having children and
the possibility of taking a concubine in response to a first wife’s infertility). See also YUXIN
[C]riminal prohibition against adultery was based on the notion

of women as property of their father and then their husband. In
order to construct and maintain the patriarchal family and
society, women’s sexuality was heavily regulated by way of law
as well as social norms. For women, sexual relation was only
legally and socially permissible when it was with her husband.
Women who committed adultery or non-marital sex were labeled
immoral, shameful, and they were criminally condemned. 49
From childhood, young girls were trained to be loyal, sacrificial, and
virtuous in the knowledge that wives were expected to remain faithful
to their husbands even after death. 50 Confucian rites insisted women
maintain chastity and tolerate a husband’s infidelity, a dynamic critics
label a sexual double standard. 51
Perceptions of marriage in Taiwan transformed during the early
1900s as individualistic views of the family, newfound emphasis on
interpersonal attraction, and decreasing rates of childbirth drew
society away from traditional Confucian teachings and toward
Westernization. 52 Feminist discourse emerged to promote women’s
rights and status in the 1920s, eventually leading to a powerful thrust
MA, WOMEN JOURNALISTS AND FEMINISM IN CHINA, 1898-1937 274 (2010) (explaining the
legal inconsistency that prohibited polygamy but tolerated concubinage).
48. Miles M. Dawson, Rules of Conduct Enforced in China, 23 CASE & COMMENT 541,
544 (1916) (listing adultery as a reason to get a divorce) [hereinafter Dawson Rules];
DAWSON, supra note 44, at 141 (listing adultery as a reason to get a divorce); Tom Ginsburg,
Confucian Constitutionalism? The Emergence of Constitutional Review in Korea and Taiwan,
27 L. SOC. INQUIRY, 764, 787-88 (2002) (noting the Confucian roots of criminal adultery
provisions); WU, supra note 46, at 39 (referring to a book, “Waiyu,” on extramarital affairs).
49. LEE, supra note 46, at 7.
50. Dawson Rules, supra note 48, at 543 (“Once mated with her husband, all her life [a
wife] will not change her feeling of duty to him; hence, when the husband dies, she will not
marry again.”); DON S. BROWNING, M. CHRISTIAN GREEN, & JOHN WITTE JR., SEX,
MARRIAGE, AND FAMILY IN WORLD RELIGIONS 401 (2006); THORNTON & LIN, supra note
42, at 42 (stating that widows’ expectation of faithfulness to her deceased husband was
buttressed by legal codes requiring such lest she be economically penalized).
51. CHANG, supra note 44, at 25. See DEBORAH DAVIS & SARA FRIEDMAN, WIVES,
HUSBANDS, AND LOVERS: MARRIAGE AND SEXUALITY IN HONG KONG, TAIWAN, AND
URBAN CHINA 15 (2014) (noting “persistent sexual double standards for men and women” in
Taiwan); Chen, supra note 45, at 47 (“In the Taiwanese society, the designated gender roles
for a woman are, in chronological sequence, filial daughter, dutiful/chaste wife, and
virtuous/loving mother.”).
52. THORNTON & LIN, supra note 42, at 3; Wang, supra note 42, at 58; LEE, supra note
46, at 4.
toward equal criminalization of adultery in the 1930s. 53 Advocates

posited that Article 239, the adultery provision in the Taiwanese penal
code, was discriminatory on the basis of gender and criticized a legal
system prohibiting polygamy and adultery while simultaneously
tolerating concubinage. 54 In response, the Legislative Yuan (the
lawmaking branch of the government) 55 revised the criminal
provision in 1934 to ensure de jure gender equality. 56 Notably, one
Judicial Yuan Interpretation (comparable to a judicial opinion in the
United States) reveals that concubinage was still prevalent in 1976,
though the court was quick to say the practice violated marital
fidelity. 57
Ironically, some women argued that it simply did not make sense
to punish men for adultery: “Even if [wives] know their husbands
have illicit affairs, they have to pretend not to notice” lest they lose
their husbands and consequently, their livelihood. 58 The concern for
what happens next lingered past the push for gender equality in the
1930s and into the conversation on decriminalizing adultery in the
1990s. 59 Interestingly, some women’s groups balked at the idea of
decriminalization, describing the penal provision as an asset to
wives 60: many women preferred to stay married rather than pursue
divorce in court because “traditional male centered values [were] still
53. LEE, supra note 46, at 7; see CHANG, supra note 44, at 4 (discussing the history of
feminism in Taiwan); see also MA, supra note 47, at 274 (discussing gender discrimination in
the Taiwanese penal code).
54 . LEE, supra note 46, at 7; MA, supra note 47, at 274 (explaining the legal
inconsistency that prohibited polygamy but tolerated concubinage).
55. For more information on the role of the Legislative Yuan in Taiwan, see Functions
and Powers, LEGISLATIVE YUAN, REPUBLIC OF CHINA (TAIWAN), http://www.ly.gov.
tw/en/01_introduce/introView.action?id=8 [https://perma.cc/NDQ6-9NM6] (last visited Jan.
11, 2018).
56. LEE, supra note 46, at 7; see also MA, supra note 47, at 274 (discussing gender
discrimination in the Taiwanese penal code).
57. Judicial Yuan Interpretation No. 147 (1976), http://www.judicial.gov.
tw/constitutionalcourt/EN/p03_01.asp?expno=147 [https://perma.cc/DSS3-MB6X] (last
visited Jan. 11, 2018) (Justices of the Constitutional Court, Judicial Yuan:
Interpretations 大法官解釋, English) (Taiwan Const. Ct. Interp.)).
58. MA, supra note 47, at 276.
59. See infra notes 60-64 and accompanying text.
60. Irene Lin, Decriminalization of adultery discussed, TAIPEI TIMES (Jan. 3, 2000),
http://www.taipeitimes.com/News/local/archives/2000/01/03/18080 [https://perma.cc/779R-
54QL] (archived Jan 2, 2018) (discussing how criminalization helps women in divorce
proceedings).
heavily embedded in the [then] current divorce laws.” 61 Women had

an approximate ten to twenty percent chance of retaining custody of
their children thanks to a presumption of paternal custody, 62 and
received little to no financial support upon divorce despite having
never worked outside of the home. 63 Thus, women found they could
use the threat of a criminal charge against their adulterous husbands
as a weapon to ensure financial support either by avoiding divorce or
gaining a larger divorce settlement from Taiwanese men who would
rather lose money or property than face the disgrace of a criminal
record. 64
The argument for continued criminalization waned significantly
as Taiwan progressed through the twentieth and into the twenty-first
century, and women gained independence in the family. 65 After
World War II and into the early 1960s, Taiwan’s agricultural
economy evolved into an industrial one, overwhelming society with
dramatic social change: large swaths of the population moved from
rural areas into cities, breaking down extended family networks and
61. Li-Ju Lee, Law and Social Norms in a Changing Society: A Case Study of Taiwanese
Family Law, 8 S. CAL. REV. L. & WOMEN’S STUD. 413, 413 (1999) (discussing the
transformation of Taiwan into an industrial, modern society and how it has changed the family
system and practices) [hereinafter Lee Case Study]; see Winnie Chang, Unequal Terms,
TAIWAN TODAY (Nov. 1, 1993), http://taiwaninfo.nat.gov.tw/ct.asp?xItem=100662&ctNode=
124 [https://perma.cc/VNR4-W8L3] (archived Jan. 2, 2018) (“[T]he existing divorce law does
not give enough protection to women on property rights after the divorce.”); Lin, supra note
60.
62. Judicial Yuan Interpretation No. 365 (1994), http://www.judicial.gov.tw/
constitutionalcourt/EN/p03_01.asp?expno=365 [https://perma.cc/S38V-FAEA] (last visited
Jan. 2, 2018) (Justices of the Constitutional Court, Judicial Yuan: Interpretations 大法官解釋,
English) (Taiwan Const. Ct. Interp.)) (last visited Nov. 10, 2017) (striking down Article 1089);
Hung-En Liu, Mother or Father: Who Received Custody? The Best Interests of the Child
Standard and Judges’ Custody Decisions in Taiwan, 15 INT’L J L., POL’Y & FAM. 185, 186
(2001); Lee Case Study, supra note 61, at 413.
63 . See generally Wendy Yang, Is Recognizing the Monetary Value of Housework
Sufficient in Achieving Gender Equality: Assessing Taiwan’s §1003-1 and §1018-1’s Potential
Impact on Taiwan’s Road Toward Gender Equality, WASH. COLLEGE OF L.,
https://www.wcl.american.edu/index.cfm?LinkServID=73AC241F-BBF6-01A2-
2E18828AFEC26EE1 [https://perma.cc/L2GL-8C6B] (last visited Jan. 2, 2018).
64. Laurence Eyton, Victory for Taiwan Housewives, ASIA TIMES. (June 11, 2002),
http://www.hartford-hwp.com/archives/55/611.html [https://perma.cc/S2Z4-G7TH] (archived
Jan. 2, 2018); Lin, supra note 60; DAVIS & FRIEDMAN, supra note 51, at 16 (“During divorce
hearings, Taiwanese courts can use evidence of extramarital relationships to establish fault,
and courts…can assign compensation to the non-blameworthy spouse.”).
65. Lee Case Study, supra note 61, at 434-45.
requiring more labor from women, a previously untapped market.66

As women became increasingly economically independent, they
gained “the money and freedom to end unhappy marriages.” 67
Additionally, Taiwan grew more liberal and democratic after martial
law was abolished in 1987, so child welfare and women’s rights
advocates fought to reshape Taiwanese family law to help those at a
disadvantage within the traditional family structure. 68 Divorce
proceedings became more expedient for women by means of a gender
neutral custody law: the presumption of paternal custody, which was
legally mandated in Taiwan’s Civil Code, was finally declared
unconstitutional by Taiwan’s Grand Justices on grounds of equal
protection in 1994 and abolished in 1996. 69 By 2008, custody
determinations, now based on the “best interests of the minor child”
standard, were awarded to mothers between forty and sixty percent of
the time. 70 At last, criminalization was no longer the only tool women
used to obtain an equitable divorce; fewer women felt forced to stay
with their husbands in order to maintain financial support and access
to their children, so fewer married Taiwanese women needed a
criminal provision to tolerate unfaithful husbands. 71
66. Id. (discussing the transformation of Taiwan into an industrial, modern society and
how it has changed the family system and practices).
67. MICHAELA RYAN, TAIWAN 23 (2003); Lee, supra note 46, at 4; Lee Case Study,
supra note 61, at 434-36.
68. Lee Case Study, supra note 61, at 436.
69. Judicial Yuan Interpretation No. 365, supra note 62 (striking down Article 1089);
Liu, supra note 62, at 186; Lee Case Study, supra note 61, at 413. This statement should not be
confused with stating that divorce proceedings are advantageous for women in general. On the
contrary, as is the case in the United States, divorce tends to disadvantage women, who are
more vulnerable and have fewer resources as compared to their husbands. Liu, supra note 62,
at 218; Yang, supra note 63, at 21 (“[W]omen are often left financially disadvantaged and
disempowered in marriage, especially upon divorce.”).
70. Fagui, Ziliaoku [Taiwan Civil Code], art. 1055-1 (listing the factors a judge should
consider when deciding which parent should receive custody of their children in a divorce
proceeding); see Lee Case Study, supra note 61, at 436; I-HSUN CHOU, MANDATORY
DIVORCE MEDIATION IN TAIWAN: LEGAL REGIME, JUDICIAL ATTITUDES AND PUBLIC
OPINIONS 19-20 (2011). This is a dramatic swing away from pre-1996 custody decisions,
which favored the father eighty to ninety percent of the time. Ironically, though the movement
toward a gender-neutral best interests of the child standard was spearheaded by women’s
equality groups, the drastic shift from paternal preference to maternal preference is likely due
to the gender-stereotyped role of women as more fit to be loving and caring parents. See Liu,
supra note 62, at 207-08.
71. See Lena Fung Warmack, Divorce Rate Rises as More Women Stop Tolerating
Unhappy, Unfaithful Unions, INT’L FAMILY LAW (2004), http://www.international-
Despite this socio-cultural evolution, however, a revised adultery

law was reaffirmed in 2002, without any mention of its effect on
women: “A married person who commits adultery with another shall
be sentenced to imprisonment for not more than one year; the other
party to the adultery shall be subject to the same punishment.” 72 In
reviewing the statute, the Justices of the Constitutional Court
explained criminalizing adultery as “essential in order to safeguard
marriage, the family system, and the social order” 73 ; the provision
was deemed proper for deterrence, to maintain respect for marriage,
and to promote family values. 74 While recognizing the constitutional
mandate to protect an individual’s freedom of sexual behavior, the
Court reasoned that this freedom is subject to the restriction placed on
it by marriage and the family system. 75 The Court ruled that
traditional family norms must be regarded by every individual in
society. 76
These rationales are not persuasive to a growing faction of
Taiwanese citizens advocating for decriminalization. 77 Women’s
groups that once advocated for continued criminalization now call for
the opposite; for example, the Awakening Foundation, an
divorce.com/Taiwan:-Divorce-Rate-Rises [https://perma.cc/LNK5-MUAS] (last visited Jan.

11, 2018).
72 . Criminal Code of the Republic of China, art. 239 (2016), Zhonghua Renmin
Gongheguo Fagui Huibian; see also M. Bob Kao, Time to Kiss Goodbye to Taiwan’s Adultery
Laws, THINKING TAIWAN (Mar. 2, 2015), http://archive.is/GdZkE (last visited Jan. 2, 2018).
73. Kao, supra note 72; Kuan Hsiao-wei, Adultery law affects women more, TAIPEI
TIMES (Dec. 11, 2013), http://www.taipeitimes.com/News/editorials/archives/2013/12/11/2003
578751 [https://perma.cc/JC3E-SLLP] (archived Jan. 2, 2018) (noting that the statute is
“presented under the pretext of safeguarding marriages and families and protecting children”);
see also Taiwan’s Archaic Adultery Law, ASIA SENTINEL (Jun. 19, 2013),
http://www.asiasentinel.com/society/taiwans-archaic-adultery-law/ [https://perma.cc/26TA-
K2JJ] (archived Jan. 2, 2018) [hereinafter Archaic Adultery Law]; Lee, supra note 46, at 3.
74. 2002 Const. Ct. Interp. No. 554 (Const. Ct., Judicial Yuan Dec. 27, 2002) (Taiwan).
75. See id.; MA, supra note 47, at 276; 88% of Taiwanese in favor of keeping adultery
illegal, INQUIRER (June 13, 2015, 5:58 PM), http://newsinfo.inquirer.net/698255/88-of-
taiwanese-in-favor-of-keeping-adultery-illegal-poll [https://perma.cc/ZJ47-SJ49] (archived
Jan. 2, 2018) [hereinafter Inquirer]; Lee, supra note 46, at 10.
76. Lee, supra note 46, at 10.
77. Sophia Yang, Taiwan advised to decriminalize adultery, TAIWAN NEWS (Jan. 20,
2017), https://www.taiwannews.com.tw/en/news/3078650 [https://perma.cc/WQ49-DBAM]
(archived Jan. 2, 2018) (“For years, many local experts and women's groups have been
expressing support for the decriminalization of adultery, but the Ministry of Justice turned
them down citing that there was ‘no consensus in society’ on this issue.”); see infra notes 78-
81 and accompanying text.
organization at the forefront of Taiwanese feminist activism since the

1980s, said in 2000 that adultery decriminalization could not be
effective until legal protection is better established for women. 78
Now, the Awakening Foundation endorses the abolishment of
adultery laws in the criminal code. 79 Taiwan’s Minister of Culture
Lung Ying-tai also promotes decriminalization as the country is
supposed to be in “a different era now.” 80 Critics say the Legislative
Yuan’s reaffirmation of the adultery statute in 2002 “reassured
current social norms of Taiwan society” and disregarded the global
movement toward decriminalization, especially considering adultery
continues to be prosecuted in Taiwan. 81 However, continued
criminalization is encouraged by the Ministry of Justice and the
general public 82 : 82.2 percent of Taiwanese citizens opposed
decriminalizing adultery while only 16.8 percent supported abolishing
the law. 83
Aside from the criminal provisions, civil remedies are virtually
non-existent except through divorce proceedings. In Taiwan, a couple
may divorce by mutual consent or by petitioning the court for a
78. Lin, supra note 60 (“Until legal protection is better established for women, we don’t
think the time is right to decriminalize adultery. At the very least, it serves as an effective
weapon to force cheating husbands to offer more financial support to their divorcing
wives[.]”).
79. See Married Family, AWAKENING FOUNDATION, https://www.awakening.org.tw/
topic/category/30 [https://perma.cc/X2V6-FD4S] (last visited Jan. 11, 2018) (indicating the
foundation advocates for the abolition of the criminal adultery law due to its discrimination
against women).
80 . Sun Xi, Taiwan Argues over Decriminalizing Adultery, ALL-CHINA WOMEN’S
FEDERATION (May 14, 2013), http://www.womenofchina.cn/womenofchina/html1/
features/rights/15/5205-1.htm [https://perma.cc/F2AH-BEQQ] (archived Jan. 2, 2018);
Archaic Adultery Law, supra note 73; Lee, supra note 46, at 2.
81. Amy H. L. Shee, Impact of Globalisation on Family Law and Human Rights in
Taiwan, 2 NAT’L TAIWAN U. L. REV. 21, 50 (2007); see also Chen Ping-hung & Chen Wei-
han, Activists criticize adultery law, citing S Korean reversal, TAIPEI TIMES (Mar. 5, 2015),
http://www.taipeitimes.com/News/taiwan/archives/2015/03/05/2003612825
[https://perma.cc/YLR8-HLB8] (archived Jan. 2, 2018) (“The government should align itself
with the global trends in decriminalizing adultery[.]”); infra Section III.C.
82. Xi, supra note 80; Archaic Adultery Law, supra note 73; Lee, supra note 46, at 2.
83. Kao, supra note 72; see also Archaic Adultery Law, supra note 73, at 1 (citing the
2013 poll asking whether citizens opposed or supported decriminalizing adultery); Inquirer,
supra note 75 (reporting eighty-eight percent of Taiwanese respondents in a 2015 government-
hosted poll opposed to the decriminalization of adultery).
divorce decree based on a spouse meeting certain criteria. 84 A divorce

by mutual consent is completed almost entirely outside of the
courtroom; as long as both spouses agree to get divorced, the couple
has the power to negotiate the terms of their divorce, including child
custody, child support, property division, and alimony, without the
interference of a judge. 85 If both do not agree to divorce, a petition to
divorce can be made based on one spouse’s fault, which may include
consensual sex with another person. 86 Successfully asserting a
petition for divorce requires “substantial evidence of sexual
intercourse,” such as photographs of the spouse and the third party in
bed together, which is often procured with the help of private
investigators. 87 In successful petitions, a guilty spouse may face
negative consequences. However, considering the difficulty of
obtaining such evidence, most divorces actually caused by adultery
will not be filed as such. 88 Additionally, considering approximately
ninety percent of divorces are consensual, Taiwanese divorce law
does not substantially affect adulterous spouses. 89
III. PRACTICAL EFFECTS AND CONSEQUENCES

The regulation of adultery has a myriad of legal and societal
repercussions on women in Taiwan and the United States. The
following sections explore three effects highlighted in recent literature
and research: Section A will discuss the disparate social implications
of adultery on women and men in both countries; Section B will
84. Civil Code Art. 1050, 1052 (2015) (Taiwan), http://db.lawbank.com.tw/Eng/FLAW

/FLAWDAT0201.asp?lsid=FL001351&beginPos=116 [https://perma.cc/7LZS-PMDA] (last
visited Jan. 11, 2018).
85. Chou, supra note 70, at 18.
86. Supra note 84.
87. See Cathy T. H. Chen, Kai-Yuan Cheng, & Sih-Yan Lin, Can Email Be Evidence for
Adultery in Criminal Law Cases? A Philosophical and Legal Explication of the Court’s
Evaluation of Evidence through Inner Conviction, 2 INT’L J. OF CYBER SOC’Y AND EDUC. 1, 4
(2009) (discussing elements of adultery and requirements for evidence); Chang, supra note 61,
at 10; see also Archaic Adultery Law, supra note 73 (discussing how a private investigator
may follow a spouse to collect evidence so as to pressure him/her to sign a benpiao, or an
acknowledgement of guilt to the crime of adultery, in order to get a larger divorce settlement).
88. Chou, supra note 70, at 31 (describing the “unreasonable levels of evidence” required
to prove adultery); Chang, supra note 61, at 10; see e.g., Hard-on picture not proof of
adultery: Taiwan prosecutor, TOMO NEWS (Dec. 18, 2013), http://www.tomonews.net/hard-
on-picture-not-proof-of-adultery-taiwan-prosecutor-34648876924928 [https://perma.cc/VDL5-
MRKT] (archived Jan. 3, 2018).
89. Chou, supra note 70, at 19.
explore the legal ramifications of adultery as a heat of passion defense

on women in both countries; and Section C will explain the difference
between prosecuting and convicting men and women for adultery in
Taiwan. Finally, Section D will explain how changing the laws
regulating adultery will help diminish these discriminatory socio-
cultural effects on women in Taiwan and the United States.
A. Sluts and Studs: Social Implications of Adultery

As a woman, the social ramifications of being an adulterer or a
mistress cannot be ignored. In both the United States and Taiwan,
women face cultural shame unexperienced by their male
counterparts. 90 Additionally, women are often expected to react to an
adulterous husband in a reticent and accepting manner in sync with a
patriarchal or traditional view on gender roles in relationships. 91 The
following sections flesh out these concepts in Taiwan and the United
States.
1. United States
When infidelity is exposed, US wives and mistresses are often
cited as suffering social disadvantages that outweigh those of their
male counterparts: “Western cultural stereotypes are more forgiving
of a man having recreational sex ([seen as a] stud) versus how we
tend to view a woman doing the same ([seen as a] slut).” 92 This is
referred to as the cheating double standard, 93 exemplified by a variety
90. See infra Sections II.A.1 & 2.

91. Id.
92. Robert Weiss, Why Women Cheat: 5 Reasons for Female Infidelity, HUFFINGTON
POST (Feb. 4, 2013, 11:25 AM), http://www.huffingtonpost.com/robert-weiss/women-
cheating-5-reasons-for-female-infidelity_b_1936934.html [https://perma.cc/3BPJ-D8L9]
(archived Jan. 3, 2018); Michael Castleman, Marital Infidelity: How Common Is It?, PSYCHO.
TODAY (Oct. 15, 2009), https://www.psychologytoday.com/blog/all-about-sex/200910/
marital-infidelity-how-common-is-it [https://perma.cc/NU3J-XGB8] (archived Jan. 3, 2018)
(“But in our culture, men with multiple partners are often envied as studs, while similar
women are dismissed as sluts.”); Tara Parker-Pope, Love, Sex, and the Changing Landscape of
Infidelity, N.Y. Times (Oct. 27, 2008), http://www.nytimes.com/2008/10/28
/health/28well.html (noting how men with more than one partner are typically seen as “virile”
while women are considered “promiscuous”).
93. Demetria Lucas D’Oyley, Why He Gets a Pass for Cheating and She Doesn’t, THE
ROOT (Dec. 26, 2013), https://www.theroot.com/why-he-gets-a-pass-for-cheating-and-she-
doesn-t-1790899479 [https://perma.cc/V8FH-ND96] (archived Jan. 11, 2018); Jill Filipovic,
The Hunt for “Becky With the Good Hair” Is Sexist and Everyone Needs to Stop,
of celebrity scandals and repercussions affecting average US

women.94 For example, a recent case of marital misconduct involves
pop star Beyoncé and her rapper husband JAY-Z. When Beyoncé
exposed a scathing account of her husband’s infidelity through her
2016 album Lemonade, backlash was directed at accused mistress
Rachel Roy via a slew of insults and threats on social media. 95 The
abuse was enough to force Roy, a prominent fashion designer with
millions of social media followers, to make her Instagram account
private and cancel a scheduled appearance. 96 Other potential
mistresses were also targeted in this “witch-hunt” for the woman
Beyoncé alluded to in several songs. 97 Meanwhile, many noted that
JAY-Z’s criticisms were comparatively far and few between. 98 This
COSMOPOLITAN (Apr. 27, 2016), http://www.cosmopolitan.com/entertainment/celebs/a57582

/becky-with-the-good-hair-hunt-is-sexist/ [https://perma.cc/678B-S9ZN] (archived Jan. 3,
2018) (“Married women have affairs too, and men sleep with married women, but you don’t
hear the term ‘The Other Man’ in the popular lexicon.”).
94. See infra notes 95 to 114 and accompanying text.
95. Melody Chiu, Rachel Roy: 5 Things to Know About the Designer Caught in the
Lemonade Firestorm, PEOPLE (Apr.25, 2016, 5:05 PM), http://www.people.com/article/rachel-
roy-five-things-to-know [https://perma.cc/T653-EYG6] (archived Jan. 3, 2018) (noting
Beyoncé’s fans started a “witch-hunt” for the woman she alluded to in her new album); Alex
Apatoff & Andrea Park, Rachel Roy Denies She’s the ‘Becky’ Who Beyoncé Called Out in
Lemonade: ‘There is No Truth to the Rumors’, PEOPLE (Apr. 26, 2016, 8:40 AM),
http://www.people.com/article/beyonce-lemonade-rachel-roy-denies-becky-album
[https://perma.cc/J856-PK3P] (archived Jan. 3, 2018) (quoting Roy discussing the “hurtful and
scary” comments made on her social media accounts).
96. Chiu, supra note 95; Emily Smith, Carlos Greer, & Emily Saul, Rachel Roy’s cryptic
post sparks Jay Z cheating rumors, PAGE SIX (Apr. 24, 2016, 4:45 PM), http://pagesix.com/
2016/04/24/rachel-roys-cryptic-post-sparks-jay-z-cheating-rumors/ [https://perma.cc/8JP5-
2YM6] (archived Jan. 3, 2018) (stating Roy made her Instagram account private after an
onslaught of users responded to a post allegedly aimed at Beyoncé, which Roy later denied).
97. Chiu, supra note 95; Filipovic, supra note 93.
98. Filipovic, supra note 93 (“[I]t’s not [JAY-Z], largely, who’s getting attacked online,
perhaps because we assume that men are sexually uncontrollable and it’s the collective duty of
womankind to keep them in line. Men are, in fact, just as capable as women of making
decisions about sex. And when they make bad decisions — decisions that hurt people or that
violate the boundaries of their relationship — they are just as responsible.”); Jenna Mullins,
Beware the Beyhive: What Happens When the Good Intentions of a Fanbase Go Bad, ENEWS
(Apr. 25, 2016, 6:49 PM), http://www.eonline.com/au/news/759656/beware-the-beyhive-what-
happens-when-the-good-intentions-of-a-fanbase-go-bad [https://perma.cc/8ZMC-JWZN]
(archived Jan. 3, 2018) (noting how Beyoncé’s fans attacked Roy and her daughter, “not the
man who also allegedly did the cheating”). This was noticed by several Twitter users: “why
are people dragging Rachel and not Jay? Just wondering. Not defending her, but reject the
double standard. […] I’m not defending her, but Jay isn’t trending. Not here for
homewreckers. But HE’s the one married.” (@melimel, Apr. 24, 2016, 1:14pm, 1:17pm); “I
can be compared to an event that occurred only one month before, in

which R&B singer Kehlani Parrish was brutally harassed on social
media for allegedly cheating on her boyfriend, basketball star Kyrie
Irving, leading her to delete her Instagram account and attempt
suicide. 99 In contrast to the response elicited from JAY-Z’s adultery,
the woman who allegedly cheated was berated to the point of extreme
psychological distress while the male paramour, a former boyfriend,
was euphemistically branded as a man “able to steal back a
woman.” 100
The infamous Bill Clinton and Monica Lewinsky scandal is yet
another example of the social harms that befall women over men in
adulterous situations: Lewinsky was cyber-bullied, called a “tramp,
tart, slut, whore, bimbo, and…that woman,” and still copes with the
social, political, and emotional repercussions of performing sexual
acts with a married man over fifteen years after the event. 101 On the
other hand, Clinton enjoys a political legacy that overshadows the
conveniently-named “Lewinsky Scandal” and remains one of
“America’s Favorite Living Ex-Presidents” 102 despite being
mean Jay Z is weak for not being able to control his d*** (: […] stop blaming women for a
man’s action.” (@MSP_Lexsiri, Apr. 24, 2016, 2:00pm, 2:01pm).
99. Aliya S. King, Kehlani, Suicide, and the Dark Side of Social Media, ESSENCE (Mar.
30, 2016), http://www.essence.com/2016/03/31/kehlani-suicide-and-dark-side-social-media
[https://perma.cc/R8VG-48ZB] (archived Jan. 3, 2018); Esther Lee, Kehlani Parrish, Singer,
Attempted Suicide Amid Rumors She Cheated on NBA Boyfriend Kyrie Irving, US WEEKLY
(Mar. 29, 2016, 10:10 AM), http://www.usmagazine.com/celebrity-news/news/kehlani-
parrish-attempted-suicide-amid-rumors-she-cheated-on-nba-boyfriend-w200593
[https://perma.cc/Y47M-PB2W] (archived Jan. 3, 2018).
100. Beth Shilliday, PartyNextDoor: 5 Things to Know About the Rapper in the Kehlani
Cheating Scandal, HOLLYWOOD LIFE (Mar. 28, 2016, 10:15 PM), http://hollywoodlife.com/
2016/03/28/who-is-partynextdoor-rapper-kehlani-cheating-scandal-kyrie-irving/
[https://perma.cc/V4KV-2DHF] (archived Jan. 3, 2018).
101. Monica Lewinsky, The Price of Shame, TED (Mar. 20, 2015),
(https://www.youtube.com/watch?v=H_8y0WLm78U) (internal quotations omitted); see also
Jessica Bennett, Monica Lewinsky is Back but This Time it’s on Her Terms, NY TIMES (Mar.
19, 2015), http://www.nytimes.com/2015/03/22/style/monica-lewinsky-is-back-but-this-time-
its-on-her-terms.html?_r=2 (discussing the implications of cyber bullying in Lewinsky’s life as
a result of her relationship with Bill Clinton).
102. Peter Coy, Clinton and Elder Bush are America’s Favorite Living Ex-Presidents,
BLOOMBERG (June 20, 2014, 3:29 PM), http://www.bloomberg.com/news/articles/2014-06-
20/clinton-and-elder-bush-are-americas-favorite-living-ex-presidents [https://perma.cc/HZY7-
M494] (archived Jan. 3, 2018); Steven Franklin, What is Bill Clinton’s presidential legacy?,
QUORA (Oct. 13, 2014), https://www.quora.com/What-is-Bill-Clintons-presidential-legacy
(noting fourteen other positive contributions to the country before mentioning that his
impeachment was a mistake); see also Russel L. Riley, Bill Clinton: Impact and Legacy,
impeached for lying about his adulterous conduct. 103 Arguably,

Clinton’s career as President of the United States is more significant
than his adulterous affair, and some would say his legacy should not
be irreparably tainted by an act of infidelity. However, even his wife,
Hillary Clinton continues to receive attention and criticism for his
actions despite her own prolific professional and political career:
Democrats and Republicans alike set their crosshairs on Hillary
during her 2016 presidential campaign, evoking both jokes and
serious commentary about her ability to run the country based on her
husband’s adultery. 104 Even when the woman did not conduct the
sexual act, she still received social backlash stemming from adultery.
The social implications on non-celebrity women who commit
adultery (or those with significant others who commit adultery) are
less politicized but strike a similar tone to those described above. For
example, women are the primary focus of internet shame and
degradation for being cheaters or mistresses in the United States.105
“Revenge porn” is often used to expose a cheating ex-lover, and
websites driven by submissions from spurned lovers are cluttered
with intimate photos and personal details of women in far higher
UNIVERSITY OF VIRGINIA MILLER CTR, http://millercenter.org/president/biography/clinton-

impact-and-legacy [https://perma.cc/48BM-PJWN] (last visited Jan. 3, 2018) (noting that
Clinton’s greatest downfall in the impeachment was never knowing “what might have been”
had he not been vying for political survival).
103. President Clinton Impeached, HISTORY, http://www.history.com/this-day-in-
history/president-clinton-impeached [https://perma.cc/8W94-3VCD] (last visited Jan. 3, 2018).
104. Emily Shire, Here’s How Monica Lewinsky Could Haunt Hillary Clinton’s
Campaign As More Than A One-Off Low Blow, BUSTLE (Apr. 25, 2016),
http://www.bustle.com/articles/156761-heres-how-monica-lewinsky-could-haunt-hillary-
clintons-campaign-as-more-than-a-one-off-low-blow [https://perma.cc/7DPR-WBNZ]
(archived Jan. 3, 2018); Michael Crowley, Lewinsky Scandal Still Affects Clintons, CBS (May
12, 2008, 12:28 PM), http://www.cbsnews.com/news/lewinsky-scandal-still-affects-clintons/
[https://perma.cc/C3TG-3D7P] (archived Jan. 3, 2018); Interview with Hillary Clinton, BBC
(July 3, 2014), http://www.bbc.co.uk/programmes/b048033v [https://perma.cc/6FCS-FSQT]
(archived Jan. 3, 2018); Jane C. Timm, The Monica Lewinsky jokes are back, MSNBC (Apr.
30, 2016), http://www.msnbc.com/msnbc/the-monica-lewsinksy-jokes-are-back [https://perma
.cc/BLJ6-CN4W] (archived Jan. 3, 2018).
105. Kate Dries, This Website Exposes the Woman Your Partner Cheated on You With,
JEZEBEL (Oct. 29, 2013, 7:00 PM), http://jezebel.com/this-website-exposes-the-woman-your-
partner-cheated-on-1454128297 [https://perma.cc/HG4Y-RFL8] (archived Jan. 3, 2018);
Bennett, supra note 101 (quoting Gloria Steinem explaining how “sexual shaming…is far
more directed at women than at men” in the context of adultery).
numbers than those of men. 106 Victims of revenge porn have

increased risk of stalking, sexual harassment, physical attack,
emotional distress, and anxiety and suffer decreased opportunities for
employment, professional growth, and romantic relationships. 107
Hardly regulated by states’ penal codes, these issues
disproportionately burden women in situations of adultery-fueled
revenge porn. 108
Additionally, US women are culturally expected to shoulder
burdensome responsibilities when their husbands cheat: “[e]ntrenched
social expectations of ethical superiority provide women with a script
for how to act when betrayed.” 109 They are to remain Madonna-esque,
reacting to infidelity with kindness, understanding, and virtuosity. 110
In addition to repressing natural feelings of anger, US women are
expected to stay emotionally stable. 111 If they do not, they are
perceived as irrational, chaotic, and uncontrollable—a sentiment
founded in a social hierarchy that criticizes female emotional
expression in general. 112 These expectations inevitably restrict US
women into internalizing their pain lest they be labeled “hysteric,
shrew, nag, [or] harpy.” 113 These expectations do not befall men in
106 . Danielle Keats Citron & Mary Anne Franks, Criminalizing Revenge Porn, 49
WAKE FOREST L. REV. 345, 347-48 (2014) (“As revenge porn affects women and girls far
more frequently than men and boys, and creates far more serious consequences for them, the
eagerness to minimize its harm is sadly predictable.”); Cyber Civil Rights Initiative, End
Revenge Porn (2014), https://www.cybercivilrights.org/wp-content/uploads/2014/12/RP
Statistics.pdf [https://perma.cc/9MKZ-MEC7] (last visited Jan. 3, 2018) (listing statistics about
those affected by revenge porn).
107. Citron & Franks, supra note 106, at 350-54 (describing the effects of revenge porn
on its victims); Cyber Civil Rights Initiative, supra note 106.
108. See generally Citron & Franks, supra note 106, at 345; Cyber Civil Rights
Initiative, supra note 106.
109. LAUREN ROSEWARNE, CHEATING ON THE SISTERHOOD: INFIDELITY AND FEMINISM
44 (2009).
110. Id. at 43-44.
111. Id. at 45; Filipovic, supra note 93 (“Beyoncé, like many women before her, has
decided to keep her marriage together through allegations of infidelity. She did so while also
pointing to the fundamental unfairness of male sexual entitlement, of the expectation that she
stay strong and silent beside her man.”).
112. Tracey E. Madden, Lisa Feldman Barrett, & Paula R. Pietromonaco, “Sex
Differences in Anxiety and Depression: Empirical Evidence and Methodological Questions” in
GENDER AND EMOTION: SOCIAL PSYCHOL. PERSPECTIVES 280 (Agatha H. Fischer
e., 2000; ROSEWARNE, supra note 109, at 45.
113. ROSEWARNE, supra note 109, at 45.
similar situations and continue to burden US women despite strides

forward in the fight for gender equality. 114
2. Taiwan
Taiwanese women face social disadvantages and
disproportionate expectations in response to adultery due to
traditional notions of female sexuality. Socio-cultural standards of a
woman’s value are set at a high bar: to be xianqi liangmu, a dutiful
wife and loving mother, is the ideal, and chuanzong jiedai, to produce
a son to carry on the paternal family, is the goal. 115 Women are
expected to be chaste before and faithful during marriage; thus, some
Taiwanese feminist advocates contend that women’s expressions of
eroticism are often morally smeared, especially considering unfaithful
wives are seen as “sluts” when they are not obedient to their husbands
in marriage. 116 There is little social tolerance for women having
multiple sexual partners. 117 However, Taiwanese society maintains a
cultural legacy of excused male adultery; women are commonly
advised to be patient and endure her husband’s adultery simply
because it is not exceptional for men to have affairs. 118 In fact, men
reportedly cheat often in Taiwan, though the thought of a woman
having an extramarital lover is unacceptable. 119 Some justify excused
male infidelity as a cultural presumption of a man’s “natural
promiscuity” 120 ; others blame Buddhism, Taiwan’s major religion,
114. See generally supra notes 109-13.

115. Chen, supra note 45, at 48. But see Davis & Friedman, supra note 51, at 16
(“[M]arital infidelity for ordinary citizens rarely generates consequences in other domains of
social and economic life, such as advancement in the workplace.”).
116. CAROL R. EMBER & MELVIN EMBER, ENCYCLOPEDIA OF SEX AND GENDER: MEN
AND WOMEN IN THE WORLD’S CULTURES 860, 864 (Vol. 2, 2003); Married Family, supra
note 79; Hsiao-wei, supra note 73; see also Crimes of Passion, SOUTH CHINA MORNING POST
(Mar. 18, 2005), http://www.scmp.com/article/493201/crimes-passion [https://perma.cc/
A3PG-W8P2] (archived Jan. 3, 2018) (discussing stigma for women who commit adultery in a
Confucian country).
117. David C. Schak, Gender and Buddhism in Taiwan, 3 玄奘佛學研究第九期 145,
165-66 (2008).
118. Jui-Shan Chang, Scripting Extramarital Affairs: Marital Mores, Gender Politics,
and Infidelity in Taiwan, 25 MODERN CHINA 69, 69 (1999) (“Women’s tolerance of their
husbands’ extramarital activity [is] relatively high.”) [hereinafter J. Chang]; EMBER & EMBER,
supra note 116, at 864-65 (“The traditional concept of sexuality…allow[s] men to have several
sexual partners before and after their wedding.”); Chou, supra note 70, at 34.
119. Schak, supra note 117, at 166.
120. J. Chang, supra note 118, at 94.
which is lenient toward unfaithful husbands despite its general

disapproval of adultery. 121 Yet others insist that a husband’s adultery
is inconsequential as long as his wife consents and he is a capable and
loving husband—a vestige of the cultural promotion of
concubinage. 122 As a result, men generally feel less guilty about
cheating on their wives than women. 123
Furthermore, the fault and responsibility of a husband’s
infidelity in many ways fall on the wife. 124 A woman whose husband
committed adultery is instructed to look in the mirror and consider
how her own actions may have contributed to his behavior:
[W]hat could she do to rescue the situation[?] Could she improve
her own attitude, temper or behaviour? Could she do more for her
husband, make him feel that the home is a more pleasant place or
that she is concerned about him in positive rather than negative
ways? 125
The cultural fault of divorce also rests on a woman’s shoulders
despite her husband’s adultery. 126 Reconciliation with a cheating
spouse is encouraged for women specifically due to stigma felt after
divorce, in which society blames the woman for not being an
adequate enough wife and mother to keep the marriage together. 127 As
a result, women reportedly suffer more emotional strife than men
after discovering an extramarital affair, yet are expected to repress
thoughts of anger, hatred, or revenge. 128 Additionally, economic and
reputational hardships faced by women after divorce encourage wives
to stay with their cheating husbands so another woman will not
121. Schak, supra note 117, at 165-66 (noting that in Buddhism, adultery is prohibited
and regarded as wrong, but history and scripture “display a tolerant attitude toward men”); see
also Linda Learman, Modernity, Marriage and Religion: Buddhist Marriage in Taiwan 129
(2005) (Ph.D. dissertation, Boston University).
122. Learman, supra note 121, at 75; Schak, supra note 117, at 166.
123. Wu, supra note 46, at 46 (stating how men often “find it easier to deal with their
guilty feelings than women”).
124. J. Chang, supra note 118, at 94; Schak, supra note 117, at 166.
125. Symposium on Present-Day Problem Number Three: The Buddhist View of the
Problems Facing Women, 18 當代問題座談紀實之三：佛教對女性問題的看法, Pumen
Xuebao 18 (2006a); Schak, supra note 117, at 167.
126. Schak, supra note 117, at 165; Chou, supra note 70, at 34.
127. Schak, supra note 117 at 165; Chou supra note 70, at 34; Ryan, supra note 67
(noting that there is still a stigma attached to being a divorced woman despite increased
independence and freedom to end unhappy marriages).
128. Schak, supra note 117, at 166-68.
benefit from the fruits of her labor building a home and family. 129 The
logical result of these social expectations is a disparity between
women and men who commit adultery, and also between men and
women who experience their spouse committing adultery.
B. To Poke a Sleeping Bear: Adultery as Provocation

A phenomenon springing from the issue of adultery is the
proliferation of heat of passion crimes, which generally mitigates the
penalization of a person’s violent (criminal) act when it is done in
response to some “provocation” under the law. 130 One such legally
recognized provocation is witnessing or discovering one’s spouse
committing adultery. As will be explained in the following
subsections, this mitigation inevitably results in legal leniency for
men who abuse or kill their wives as it is primarily used by husbands
who respond violently to encountering a wife’s adultery. 131
1. United States
In the United States, women are killed by their significant others
at higher rates than men: in 2015, ninety percent of female victims
were murdered by men, and sixty percent were murdered by their
husbands, ex-husbands, or boyfriends. 132 In striking comparison, less
than ten percent of male homicide victims were killed by women in
total, 133 let alone an even smaller average of five to eight percent of
129. Chou, supra note 70, at 34-35. Men are also urged not to divorce, though this is
certainly not a cultural mandate to discontinue an extramarital affair (opting to simply have
two wives or families instead). Id.
130. See infra Sections II.B.1 & 2.
131. Id.
132. Violence Policy Center, When Men Murder Women: An Analysis of 2015 Homicide
Data 3 (Sept. 2017), http://www.vpc.org/studies/wmmw2017.pdf [https://perma.cc/PG72-
PX5P] (archived Jan. 11, 2018); Olga Khazan, Nearly Half of All Murdered Women Are Killed
by Romantic Partners, ATLANTIC (July 20, 2017), https://www.theatlantic.com
/health/archive/2017/07/homicides-women/534306/ [https://perma.cc/F8SC-SJ63] (archived
Jan. 3, 2018); see Donna K. Coker, Heat of Passion and Wife Killing: Men Who Batter/Men
Who Kill, 2 S. Cal. Rev. L. & Women’s Stud. 71, 71-72 (1992) (explaining emotional and
psychological motivations behind violent reactions against an adulterous wife).
133. Federal Bureau of Investigation Department of Justice, Expanded Homicide Data
Table 6, 2015 CRIME IN THE UNITED STATES (2015), https://ucr.fbi.gov/crime-in-the-
u.s/2015/crime-in-the-u.s.-2015/tables/expanded_homicide_data_table_6_murder_race_and_
sex_of_vicitm_by_race_and_sex_of_offender_2015.xls [https://perma.cc/UH7H-QZKQ]
(archived Jan. 11, 2018).
male victims estimated to have been killed by a girlfriend or wife.134

Because spousal homicide and battering significantly increases when
a spouse discovers or suspects sexual infidelity by a woman, US
women are killed in disproportionately higher numbers than men in
response to adultery. 135
A facet of US criminal jurisprudence that appears to endorse this
behavior is a heat of passion defense in voluntary manslaughter
doctrine: a defendant’s murder charge may be mitigated to voluntary
manslaughter, which carries a significantly smaller sentence, or even
excused if the jury finds the defendant killed the victim in the “heat of
passion.” 136 California’s penal code illustrates a typical definition of
heat of passion:
A killing that would otherwise be murder is reduced to voluntary
manslaughter if the defendant killed someone…in the heat of
passion. The defendant killed someone…in the heat of passion if:
The defendant was provoked; [a]s a result of the provocation, the
defendant acted rashly and under the influence of intense
emotion that obscured (his/her) reasoning or judgment; [and]
[t]he provocation would have caused a person of average
disposition to act rashly and without due deliberation, that is,
from passion rather than from judgment. 137
Essentially, the court can find that a defendant murdered a person—
i.e., all of the elements of murder are present—but will not convict
the defendant of murder because his or her actions were incited by
134. Bob Miller, Jealousy, Control And Murder: Men Killing Their Intimate Partners
More Often Than Women, SOPUSA (Mar. 17, 2014), http://sopusa.net/jealousy-control-
murder-men-killing-intimate-partners-often-women/ [https://perma.cc/QK6P-TXKP] (archived
Jan. 3, 2018).
135. Ofer Zur, Infidelity & Affairs: Facts, Myths and What Works, ZUR INSTITUTE,
http://www.zurinstitute.com/infidelity.html [https://perma.cc/H8B2-ULPG] (last visited Jan.
11, 2017); Decriminalization of adultery and defenses, UN WOMEN (2012),
http://www.endvawnow.org/en/articles/738-decriminalization-of-adultery-and-defenses.html
[https://perma.cc/VMZ9-SGW3] (last visited Jan. 3, 2018) (hereinafter UN Women); Coker,
supra note 132, at 73.
136. California Criminal Jury Instructions, 511 Excusable Homicide: Accident in the
Heat of Passion, https://www.justia.com/criminal/docs/calcrim/500/511.html [https://perma.
cc/8M9J-ZEYR] (last visited Jan. 3, 2018) (noting that the defendant must not have acted with
intent, conscious disregard, or criminal negligence in order to be excused from the homicide).
137. California Criminal Jury Instructions, 570 Voluntary Manslaughter: Heat of Passion
– Lesser Included Offenses, https://www.justia.com/criminal/docs/calcrim/500/570.html
[https://perma.cc/W4JG-ZMVF] (last visited Jan. 3, 2018). This is an example of a heat of
passion defense from California; it is typical of those found in almost all other states.
“adequate provocation,” or a situation in which a reasonable person

might be goaded into killing. 138 It is settled legal precedent that
adultery is one such provocation that may be used in a heat of passion
defense despite that it is the only provocation in which an actual or
threatened physical assault is not required. 139 While the defense can
be used by either spouse, in the context of adultery-related heat of
passion crimes, it is most commonly used in proceedings involving
the murder or assault of an adulterous wife; consequently, penal codes
across the United States seem to sanction violent behavior by
reducing the criminal charge for men who kill or harm their wives
after discovering her in an adulterous act. 140 The roots of this gender
disparity can be elucidated in several ways.
First, the prevalence of “legislative vagueness, discriminatory
attitudes, and judicial discretion” in determining whether a defendant
was in the heat of passion results in de facto gender discrimination
despite a gender-neutral statute. 141 The US legal system is often
criticized for having a male bias, especially considering the
underrepresentation of female judges and jurors. 142 But male-oriented
laws also contribute to gender stereotyping in cases involving heat of
138. People v. Steele, 47 P.2d 225, 239-41 (2002). See also 9.6 Manslaughter, U. MINN.
LIBRARIES, http://open.lib.umn.edu/criminallaw/chapter/9-6-manslaughter/ [https://perma.cc
/7A3A-NZX4] (last visited Jan. 3, 2018).
139. Other categories include mutual combat, false arrest, and violent assault. See Coker,
supra note 132, at 71-73; Barret Broussard, Principles for Passion Killing: An Evolutionary
Solution to Manslaughter Mitigation, 62 EMORY L J. 179, 179 (2012) (“[S]exual infidelity
remains a paradigmatic approach for mitigation.”); Adeyemi Oshunrinade, Crime of Passion:
Murder You Can Get Away With, GLOBAL NEWS POST (Jan. 28, 2012),
https://san0670.com/2012/01/28/crime-of-passion-murder-you-can-get-away-with-by-
adeyemi-oshunrinade/ [https://perma.cc/NA6F-MBHT] (archived Jan. 28, 2018) (“In most
jurisdiction of the United States, it is settled principle of law that a husband who finds his wife
in the act of committing adultery may be reasonably overcome by passion to kill either his
wife or the lover. In such situation, he has not committed murder but rather voluntary
manslaughter.”); 9.6 Manslaughter, supra note 138.
140. Oshunrinade, supra note 139 (“In most jurisdictions of the United States, it is
settled principle of law that a husband who finds his wife in the act of committing adultery
may be reasonably overcome by passion to kill either his wife or the lover. In such situation,
he has not committed murder but rather voluntary manslaughter.”). See generally Coker, supra
note 132.
141. See UN Women, supra note 135; see generally Antonia Elise Miller, Inherent
(Gender) Unreasonableness of the Concept of Reasonableness in the Context of Manslaughter
Committed in the Heat of Passion, 17 WM. & MARY J. WOMEN & L. 249, 249-50 (2010).
142. A. Miller, supra note 141, at 249-50.
passion crimes. 143 Some have analyzed this phenomenon through a

historical lens, comparing the differences between a man and a
woman’s “natural” responses to adultery. Tracing back to the concept
of paternal uncertainty, a husband killing his wife in response to
sexual infidelity is an evolutionary response to the male fear of
investing in a child that does not carry his genetic lineage. 144 In the
same vein, a wife killing her husband in response to emotional
infidelity is an evolutionary response to female fear of a “disastrous
loss of investment from those mates with whom they have decided to
reproduce.” 145 According to this critique, both spouses have equally
passionate responses to infidelity rooted in the cultural and biological
roles women and men have assumed throughout history, but only
sexual infidelity is adequate provocation to invoke the heat of passion
defense because men have been in charge of law-making for the
entirety of US history:
Because men have traditionally been in power in Western culture
throughout the development of the common law, (male)
lawmakers would have been cognizant of the enormous distress
caused by sexual unfaithfulness in the confines of relationships.
That distress and shared sense of understanding find their roots in
evolution. As a universal challenge faced by all men over the
course of thousands of years, [… and] in a male-dominated legal
system, mitigation for the frailty of human nature or the laws
upon which human nature is constituted would incorporate male
frailties but not necessarily female ones. 146
Additionally, in nearly all US jurisdictions, a husband who discovers
his wife in the act of adultery, or sometimes even mere knowledge of
adultery, can receive a mitigated sentence or charge for violent crimes
because courts use a “reasonable man” standard to determine the
appropriateness of a spouse’s violent reaction to adultery. 147 The
143. Id.
144. Broussard, supra note 139, at 203; see supra Section I.A.
145. Broussard, supra note 139, at 203; see also Scott Haltzman, Infidelity and how it
Affects Marriage, Children and Families (Interview June 10, 2013 at 11:00 AM),
https://thedianerehmshow.org/shows/2013-06-10/infidelity-and-how-it-affects-marriage-
children-and-families [https://perma.cc/5HAN-NRGH] (archived Jan. 3, 2018) (“Many people
(particularly women) feel the emotional affairs can be just as damaging as physical affairs.”).
146. Broussard, supra note 139, at 201-02 (emphasis added).
147. Aya Gruber, Leniency as a Miscarriage of Race and Gender Justice, 76 ALB. L.
REV. 1571, 1592-93 (2013) (“Some assert that the whole notion of exoneration based on anger
privileges masculinist belligerence over preferred feminine passivity.”); WAYNE R. LAFAVE &
differences between a reasonable man and woman in the context of

US culture are stark: “differential gender socialization” describes the
phenomenon that men are socialized to be more aggressive in
situations that invoke anger while women are not. 148 In cases of
sexual infidelity, male aggression is deemed reasonable because a
cheating wife is more shameful than a cheating husband; women, on
the other hand, are “taught not to be surprised by male infidelity,” so
a reaction of rage or violence is far less reasonable. 149 Thus, by
excusing a reaction that is reasonable for men but not for women, the
defense “primarily serves a masculine interest,” as the definition of
“reasonable” is largely shaped by a person’s culture. 150
Some cases serve as telling examples of the prevalence of gender
stereotyping in the use of heat of passion defenses. Kenneth Peacock
was convicted of voluntary manslaughter and received a sentence of
eighteen months in prison for killing his wife. 151 Upon discovering
her in bed with another man, Peacock spent multiple hours
threatening her and consuming alcohol before finally pulling the
trigger. 152 Judge Robert E. Cahill, who sentenced Peacock,
subsequently stated, “I seriously wonder how many men married five,
four years would have the strength to walk away without inflicting
some corporal punishment.” 153 The judge exemplified his male bias
further when he admitted to believing Peacock’s actions were fully
AUSTIN W. SCOTT, JR., CRIMINAL LAW 656 (2d ed., 1986); ROLLIN M. PERKINS & RONALD
N. BOYCE, CRIMINAL LAW 86-87 (3d ed., 1982) (explaining the “modern rule” using a
reasonable person standard to determine the adequacy of a husband’s violent reaction to the
adulterous information or act).
148. Emily L. Miller, (Wo)manslaughter: Voluntary Manslaughter, Gender, and the
Model Penal Code, 50 Emory L.J. 665, 680-81 (2001); RHODA UNGER & MARY CRAWFORD,
WOMEN AND GENDER: A FEMINIST PSYCHOLOGY 235, 736 (1992); Deborah W.
Denno, Gender, Crime, and the Criminal Defenses, 85 J. CRIM. L. & CRIMINOLOGY 80, 92
(1994); ROSEWARNE, supra note 109, at 44.
150. E. Miller, supra note 148, at 670; Unger & Crawford, supra note 148; Denno, supra
note 148.
151. A. Miller, supra note 141, at 249; KATHARINE T. BARTLETT ET AL., GENDER LAW
AND POLICY 363 (2014).
152. Tamar Lewin, What Penalty for a Killing in Passion, NY TIMES (Oct. 21, 1994),
http://www.nytimes.com/1994/10/21/us/what-penalty-for-a-killing-in-passion.html; Karl Vick,
MD. Judge Taking Heat in Cuckolded Killer Case, WASH. POST (Oct. 30, 1994),
https://www.washingtonpost.com/archive/politics/1994/10/30/md-judge-taking-heat-in-
cuckolded-killer-case/1a8d9744-6dee-4bd1-9abb-eb5f0a91c67c/?utm_term=.9b5e666e4611
[https://perma.cc/PW3A-9HQT] (archived Jan. 3, 2018).
153. A. Miller, supra note 141, at 249; BARTLETT ET AL., supra note 151, at 363.
justified by his wife’s adultery and only sentenced him to prison time
because it was legally required. 154 Alternatively, in a case involving a
woman who killed her husband after confronting him and his mistress
at a hotel, the wife was convicted of murder despite testimony saying
she was “in a fog” and “blackout” from rage; the court even enhanced
her sentence to the maximum of twenty years for using a deadly
weapon (a car). 155 The prosecution and defense used female gender
stereotypes such as “promiscuous” and “selfish spendthrift” for both
the wife and the mistress to bolster their cases.156 Most shockingly, in
People v. Chen, a Chinese man moved to the United States and
murdered his wife with a hammer after she admitted to having an
affair. 157 Chen confessed to the killing, but contended that in Chinese
culture a husband’s wife committing adultery implicates weakness;
because divorce is considered shameful, Chen argued, Chinese men
commonly threaten to murder their adulterous wives. 158 The court
decided this “cultural defense” was enough to mitigate a murder
charge to a mere probationary sentence. 159 The decision has been
lamented as “a means to protect men who have murdered their wives”
based on the traditional perception of women as the family honor, and
has never been overturned. 160 These examples show that cultural
expectations of how a reasonable woman or man should act skew the
United States’ use of adultery as heat of passion provocation to the
benefit men and the detriment of women. 161
A final critique impugns the voluntary manslaughter doctrine in
the context of adultery as a reinforcement of gender stereotypes
154. A. Miller, supra note 141, at 249; Bartlett et al., supra note 151, at 363.
155. BARTLETT ET AL., supra note 151, at 363.
156. Id.
157. Damian W. Sikora, Note, Differing Cultures, Differing Culpabilities?: A Sensible
Alternative: Using Cultural Circumstances as a Mitigating Factor in Sentencing, 62 OHIO ST.
L.J. 1695, 1695 (2001) (discussing the facts of People v. Chen); Taryn F. Goldstein, Comment,
Cultural Conflicts in Court: Should the American Criminal Justice System Formally Recognize
A "Cultural Defense"?, 99 DICK. L. REV. 141, 151-53 (1994) (discussing the facts of People v.
Chen).
158. See Melissa Spatz, A “Lesser” Crime: A Comparative Study of Legal Defenses for
Men Who Kill Their Wives, 24 COLUM. J.L. & SOC. PROBS. 597, 622 (1991) (describing
Chen’s legal defense).
159. Spatz, supra note 158, at 622 (“Chen’s Chinese heritage created pressures that led
him to kill his wife; it made him more ‘susceptible to cracking under the circumstances.’”).
160. Id. at 624.
161. See generally A. Miller, supra note 141, at 249.
similar to those held by domestic abusers. 162 Donna K. Coker, a law

professor who spearheaded research and analysis on the nature and
effects of heat of passion defenses, uses patterns of domestic violence
as a comparison to adultery-related heat of passion defenses, detailing
how a man that batters his wife often blames her for provoking him
into some violent behavior. 163 The abuser portrays his act as
uncontrollable in response to the wife’s disobedient or non-
conforming conduct, implying she is deserving of his physical
punishment. 164 The heat of passion defense follows a similar logic: by
mitigating a murder to a voluntary manslaughter, the law “blames”
the adulterer for provoking the spouse into some violent behavior,
implying the adulterer is deserving of the resulting assault or
killing. 165 The law, by asserting that the victim inspired the emotional
state which resulted in violence, portrays the spouse’s act as
uncontrollable in response to the adulterer’s “wrongful, illegal, and
horrific act.” 166 Thus, a batterer’s rationale for his violence—that it is
uncontrollable as a result of his wife’s actions—”resonates with and is
reinforced by the legal doctrine” because it minimizes the punishment
(and thus, the cultural shame and disapproval) endured by the spouse
for physically harming his adulterous wife. 167 Because the heat of
passion defense is mainly used to benefit men who have discovered
their wives committing adultery, critics contend mitigating these
violent acts effectively enforces abusive gender stereotypes and a
repressive social hierarchy. 168
162. See Gruber, supra note 147, at 1592-93 (“Some assert that the whole notion of
exoneration based on anger privileges masculinist belligerence over preferred feminine
passivity.”). See generally Coker, supra note 132.
163. See Coker, supra note 132, at 84-85; see also E. Miller, supra note 148, at 686.
164. Supra note 163; Gruber, supra note 147, at 1593.
165. See Coker, supra note 132, at 71 (contending violent acts in response to adultery are
both controllable and deterrable to a reasonable person, so allowing adultery as provocation
defends those who choose to commit violent acts similar to domestic abusers); see also
Gruber, supra note 147, at 1595-96 (“The identified problem is that the provocation defense,
especially in its broad form, permits exoneration of those whose anger reflects, at least in part,
repressive social hierarchy (i.e., sexism in domestic relations, homophobia, and masculinist
violence).”).
166. See Gruber, supra note 147, at 1593; 9.6 Manslaughter, supra note 138.
167. See Coker, supra note 132, at 128.
168. Id. at 71 (contending violent acts in response to adultery are both controllable and
deterrable to a reasonable person, so allowing adultery as provocation defends those who
choose to commit violent acts similar to domestic abusers); see also Gruber, supra note 147, at
1595-96 (“The identified problem is that the provocation defense, especially in its broad form,
2. Taiwan
Until the end of the Qing dynasty in 1911, a wife who beat or
killed her husband in retaliation to domestic violence or adultery
could be strangled, beheaded, or “executed by slicing.” 169 However, a
husband could kill his wife and her paramour after catching them in
the act of adultery and go without punishment. 170 Into the early
twentieth century, the laws seemed to enforce the cultural tradition of
a husband’s dominance and a wife’s subordination. 171 While Taiwan
does not codify such punishments today, a sentence for murder—
usually the death penalty or life imprisonment—can be mitigated to
under seven years of imprisonment with a heat of passion defense if
the person killed while “justly angered.” 172 The defense is not
typically used for the benefit of women in the context of adultery, as
critics have commented that it is often used to exonerate a husband
who killed his wife after catching her in the act of adultery. 173 While
there is little English-language information available regarding the
use of heat of passion defenses in situations of adultery-related
killings in Taiwan, research shows the incidence of domestic violence
rises in situations of adultery. 174 In general, violence against women
was listed by the US Human Rights Report as one of the gravest
human rights challenges confronting Taiwan; nearly forty-two percent
of Taiwanese women have experienced some type of violence, most
of which were perpetrated by spouses or partners. 175 Though the
actual effects of heat of passion defenses in Taiwan are beyond the
permits exoneration of those whose anger reflects, at least in part, repressive social hierarchy
(i.e., sexism in domestic relations, homophobia, and masculinist violence).”).
169. Wu, supra note 46, at 47.
170. Id. at 41 (discussing traditional China’s legal codes).
171. Id. at 47 (discussing traditional China’s legal codes).
172. Taiwan Criminal Code arts. 271, 273 (2016), http://law.moj.gov.tw/eng/
LawClass/LawAll.aspx?PCode=C0000001 [https://perma.cc/9Z8G-GVYU] (archived Jan. 11,
2018) (providing the criminal provisions for murder and mitigation, respectively).
173. Sara L. Friedman, Adjudicating the Intersection of Marital Immigration, Domestic
Violence, and Spousal Murder: China-Taiwan Marriages and Competing Legal Domains, 19
INDIANA J. GLOBAL L. STUD. 221, 239-40 (2012).
174. Wu, supra note 46, at 46.
175. Joy Lee, 41.5% of Women Fall Victims to Violence: Foundation, CHINA POST (Jan.
18, 2013), https://www.questia.com/read/1P3-2868322231/41-5-of-women-fall-victims-to-
violence-foundation [https://perma.cc/3D87-2UMJ] (archived Jan. 3, 2018); see Sam Sky
Wild, Violence shatters myth of domestic bliss, TAIPEI TIMES (Feb. 26, 2014),
http://www.taipeitimes.com/News/feat/archives/2014/02/26/2003584361
[https://perma.cc/7PM4-THZP] (archived Jan. 3, 2018).
scope of this research, Taiwanese women likely suffer physical

retribution at higher rates than men as a result of committing adultery.
C. Policing the Bedroom: Prosecution and Conviction Rates for

Women
While the imposition of criminal penalties no longer poses a
meaningful problem for US women, adultery is still actively
prosecuted and punished in Taiwan—over 600 individuals were
convicted from 2010 to 2013. 176 The maximum punishment allowed
for the crime of adultery is one year imprisonment, though most of
those convicted receive sentences of fines or community service
instead of going to jail. 177
Importantly, the criminalization of adultery in Taiwan
disproportionately affects women on a prosecutorial level, which
inevitably results in higher rates of convictions for women as well. An
innocent spouse must file charges against the adulterous spouse and
partner in order for a criminal proceeding to begin. 178 Though the
majority of those in adulterous affairs are men, 179 the number of
women convicted for adultery is considerably higher regardless of
whether the woman is the adulterer or the mistress. 180 This is because
women are significantly more likely to withdraw their complaints
against their spouse than men.181 Government statistics show that fifty
percent of women pressing charges against their husbands for
adultery eventually drop those charges, as opposed to twenty-three
176. Lee, supra note 46, at 4-5

177. Taiwan Criminal Code Art. 239 (2013), https://www.ilo.org/dyn/natlex/docs
/ELECTRONIC/80254/112858/F-1444561515/CHN80254%20Eng.pdf [https://perma.cc/
WUV8-NMMT] (archived Jan. 3, 2018); Lee, supra note 46 (citing Letter from Judicial Yuan,
re: Sentencing Statistics on Conviction of article 239 of the Criminal Code 2010-2013 (Mar.
27, 2014) (on file with author)); Lin, supra note 60 (noting how people are mainly fined rather
than imprisoned when convicted of adultery).
178. Archaic Adultery Law, supra note 73 (“It is an offense prosecuted on complaint,
which means that the case is closed as soon as the plaintiff drops the charge. In practice, that
usually means unfaithful women are punished while cheating men walk free.”).
179. Xi, supra note 80.
180. Married Family, supra note 79.
181. Hsiao-wei, supra note 73; Inquirer, supra note 75 (“[D]iscriminatory applications
[of the adultery crime] take women to court while sparing men, whose wives tend to drop
charges.”); Archaic Adultery Law, supra note 73 (“It is an offense prosecuted on complaint,
which means that the case is closed as soon as the plaintiff drops the charge. In practice, that
usually means unfaithful women are punished while cheating men walk free.”).
percent of men doing so against their wives. 182 Wives of adulterous

men tend to drop charges because the husband is usually the
economic provider of the family, but women are “dragged into court”
by spurned husbands. 183 Married women who are accused and
punished for adultery in Taiwan tend to be economically
disadvantaged and are often domestic violence victims. 184
Additionally, women are not as likely to withdraw their complaints
from their husbands’ paramours as they are from their husbands,
leaving more women to be prosecuted for adultery. 185 In fact, the
ability to press charges against a paramour is often used by wives as
revenge against the mistress, resulting in more criminal convictions
for women. 186 Critics contend the gender prejudice inherent in the
way Taiwanese society views affairs causes a discrepancy in
punishment, thus making a gender-neutral statute discriminatory in
practice. 187
D. The Takeaway
The connection between the United States’ and Taiwan’s legal
history and current social attitudes speaks to a larger truth about
culture and the potential evolution of societal norms. Anthropologists
observe that nature, norms, and law shape human behavior. 188 Both
the United States and Taiwan codified laws to regulate adultery in
more traditional eras of their histories, where lawmaking relied
heavily on the influence of custom and heritage. 189 In traditional
182. Xi, supra note 80; Hsiao-wei, supra note 73.

183. Yang, supra note 77; Archaic Adultery Law, supra note 73.
184. Hsiao-wei, supra note 73.
185. Id. (discussing how the withdrawal rate of accusations lodged against a husband’s
paramour is over twenty percent higher than the withdrawal rate of accusations lodged against
the husband, making the discrepancy in punishment “discriminatory in practice, even though
the prejudice is not written into the terms of the law”); see Woman In Taiwan Faced 300 Years
Jail For Affair Due To Island’s Harsh Adultery Laws, NEWS.COM.AU, (Sept. 3, 2013),
http://www.news.com.au/world/woman-in-taiwan-faced-300-years-jail-for-affair-due-to-
islands-harsh-adultery-laws/story-fndir2ev-1226709412816.
186. Archaic Adultery Law, supra note 73.
187. Hsiao-wei, supra note 73.
188. Lee Case Study, supra note 61, at 425; see also Lawrence Lessig, The Constitution
of Code: Limitation on Choice-Based Critiques of Cyberspace Regulation, 5 COMM. LAW
CONSPECTUS 181 (1997).
189. S. Langlois, Traditions: Social, INTERNATIONAL ENCYCLOPEDIA OF THE SOCIAL
AND BEHAVIORAL SCIENCES (2002), http://www.cms.fss.ulaval.ca/upload/soc/fichiers/
traditions_social.pdf [https://perma.cc/HV6L-Z9UW] (archived Jan. 11, 2018); Peter F.
countries, where the law mimics or codifies the informal social norms
already existing in society, 190 criminalizing adultery could be seen as
a codification of what was already socially penalized, and choosing to
mitigate a murder committed by a husband in response to his wife’s
adultery was an imitation of what was already socially permissible.191
However, now that both the United States and Taiwan have evolved
(or, are in the process of evolving) away from traditional societies, the
continued regulation of adultery splays the sexist legal antiquities and
patriarchal cultures of the United States and Taiwan, which perpetuate
discrimination toward adulterous women, mistresses, and even female
victims of adultery. 192
The United States and Taiwan are more susceptible now than
ever to an evolution of social norms when brought about by legal
change. 193 There is an assumption in modern Western legal culture
that the law “would and should lead the social norm”; laws have the
unique ability to alter, form, and control human behavior in countries
like the United States. 194 While traditional Chinese legal cultures (like
that of Taiwan) would usually imply the opposite, some analysts
insist Taiwanese social norms will not change on their own, and that
it is the government’s role to institute policies and legislation despite
difficulties doing so in the past so as to change the social norms that
encourage discrimination or disparate treatment. 195 Thus, the
opportunity for the United States and Taiwan to change the social
norms surrounding women’s infidelity through the deregulation of
adultery is at least plausible, if not expected. The goal is not for
society to perceive adultery as an acceptable act; infidelity, as noted
Drucker, The Age of Social Transformation, ATLANTIC (Nov. 1994),

http://www.theatlantic.com/past/docs/issues/95dec/chilearn/drucker.htm [https://perma.cc/
A77P-2HPR] (archived Jan. 3, 2018) (talking about how the US was a traditional society); see
supra Section I.B.
190. For example, Imperial Chinese government reinforced the informal hierarchy of the
family system by imposing formal penalties for those that did not comply. Lee Case Study,
supra note 61, at 426; Yang, supra note 63, at 22
191. For example, see Lee Case Study, supra note 61, at 426 (noting how adulterers were
punished by the family or village before the government became involved).
192. See generally Lee, supra note 46; Lee Case Study supra note 61.
193. See Lee Case Study, supra note 61, at 432-36; see also Yang, supra note 63, at 22-
23.
194. Yang, supra note 63, at 22; Lee Case Study, supra note 61, at 425-26.
195. Yang, supra note 63, at 28-29; Teemu Ruskola, Law Without Law, Or Is “Chinese
Law” An Oxymoron, 11 WM & MARY BILL RTS. J. 655, 658 (2003).
before, can be detrimental and result in emotional turmoil and broken

relationships. Rather, the legal objective to deregulate adultery should
initiate the cultural goal: to view an act of infidelity the same whether
conducted by a man or a woman.
IV. ARGUING FOR DEREGULATION

As both countries stand currently, social ramifications and
expectations weigh heavily on adulterous women and mistresses
while men in the same situations are excused or slapped on the wrist.
For two governments that purport to concern themselves with equality
of the sexes, this is unacceptable. Despite drastically different
cultures, both the United States and Taiwan have the potential to
change social norms surrounding adultery, thereby mitigating the
cultural disadvantages facing adulterous women and mistresses, by
choosing to deregulate it. As previously stated, deregulation aims to
eliminate adultery from laws and binding precedent as a rationale for
punishments, judgments, mitigations, defenses, or factors for
consideration in the law. While supporters of maintaining these laws
may argue the function outweighs the negative consequences, this
Article posits the opposite.
A. Eliminating Adultery as a Heat of Passion Crime Provocation

Heat of passion defenses function to excuse violent reactions
that any reasonable person might express if put in a similar
situation.196 But determining a defendant’s psycho-physical response
to discovering adultery is highly subjective, swayed by the judge and
juror’s personal perceptions, societal influences, and inherent
biases. 197 Research points toward a significant gender disparity
between those who benefit from the defense and those who do not,
indicating a cultural prejudice embedded in the law that cannot be
extracted without a concrete shift in voluntary manslaughter
doctrine. 198
Arguably, this shift could manifest as a modification or
loosening of current provisions so the defense is easier to invoke for
196. 9.6 Manslaughter, supra note 138.

197. See supra Section II.B.1.
198. Id.
women. 199 But this would bring a negative result for two reasons.
First, further excusing the use of violence as an understandable and
expected reaction to discovering one’s spouse committing adultery is
harmful from a public policy standpoint. People are expected to
control their behavior despite strong emotions so as to not impulsively
hurt others; this makes society a safer place. While mitigating
violence stemming from an emotional reaction may be understandable
when someone is physically assaulted or threatened (and the reaction
from that physicality results in returning a physical assault), it creates
a slippery slope to broaden the way a non-physical provocation can be
used to mitigate murder. Tolerating the use of violence in the context
of adultery sends the message that violent behavior is acceptable, or at
least less unacceptable, when one feels betrayed, hurt, or angry. 200
Because all people have and will feel betrayed, hurt, or angry at some
point in their lives, it is imprudent to permit a non-physical
provocation to mitigate homicidal behavior, let alone loosen its
limitations so that more people may take advantage of it.
Second, as women are more often the victims of spousal
homicide, providing more leniency to voluntary manslaughter
doctrine would concurrently encourage and broaden its use for men
that kill their wives. 201 This perpetuates the abusive cycle women fall
victim to now and reinforces the gender stereotypes plaguing women
in their current legal systems. 202 Some critics have even compared
adultery-related crimes of passion with honor killings, a practice that
draws widespread condemnation from the international community. 203
A complete deletion of adultery as a provocation in heat of passion
defenses would not only remove the direct discriminatory effects, but
would also symbolize a cultural disapproval of violence, especially
against women who do not conform to gender stereotypes.

200. Id.
201. Id.
202. Id.
203. Anna Momigliano, Honor Killing by Any Other Name, NATION (Feb. 2, 2010),
https://www.thenation.com/article/honor-killing-any-other-name/ [https://perma.cc/4WHS-
HWF5] (archived Jan. 3, 2018); Arsalan Iftikhar, Honor Killings Are a Global Problem, TIME
(July 29, 2016), http://time.com/4415554/honor-killing-qandeel-baloch/ [https://perma.cc/
P89R-4BDL] (archived Jan. 3, 2018); Hillary Mayell, Thousands of Women Killed for Family
“Honor”, NATIONAL GEOGRAPHIC (Feb. 12, 2002), http://news.nationalgeographic.com
/news/2002/02/0212_020212_honorkilling_2.html [https://perma.cc/C5P4-PUMS] (archived
Jan. 3, 2018).
B. Decriminalizing Adultery
The criminalization of adultery allegedly serves the function of
deterrence and exemplifying moral disdain for infidelity within the
confines of marriage. 204 But a criminal sanction against extramarital
sex is futile for this goal. Protecting marriage by penalizing adultery
implies that the criminal sanction would either deter people from
committing adultery, rehabilitate those marriages that have been
broken by adultery, or both. 205 Adultery criminalization does none of
those things. For example, the criminalization of adultery does not
serve as an actual deterrence to engaging in extramarital sex in either
the United States or Taiwan. 206 In the United States, adultery is
reported to occur in between ten and sixty percent of marriages. 207
204. Viator, supra note 6, at 856-59 (“[T]he overwhelming prevalence of adultery in our
society proves that criminal prohibition is not a deterrent”; explaining state interests in
criminalizing adultery through the harm principle and abuse of the institution of marriage);
Boorstein, supra note 38 (“‘[A]s far as general deterrence, it should now be widely known that
adultery is a crime in Virginia.’”); Coleman, supra note 10, at 400-01; Lee, supra note 39; see
Turley, supra note 39 (“Social conservatives, however, insist that such laws are needed to back
up moral dictates with criminal sanctions”; noting how adultery laws fail to adequately deter
and punish violators). While many outdated statutes remain on the books without question, it is
the intention of this author to show that the negative effects of adultery regulation outweigh
any positive moral implications. See POLLOCK, supra note 40; Maki, supra note 40 (“Society
may not be able to make people be virtuous, but this does not mean we cannot punish vice.
Adultery may involve consenting adults, but when it breaks up a marriage it is harmful to
society. Even if the purpose of law is simply to protect society, then these behaviors must be
restricted.”); Hsiao-wei, supra note 73 (noting that the statute is “presented under the pretext
of safeguarding marriages and families and protecting children”); see also Archaic Adultery
Law, supra note 73; Lee, supra note 46; No. 554, 2002, Justices of the Constitutional Court,
Judicial Yuan, R.O.C., http://www.judicial.gov.tw/constitutionalcourt/EN/p03_01.asp
?expno=554 [https://perma.cc/24FX-Y29Q] (last visited Jan. 3, 2018).
205. See generally Henry M. Hart, The Aims of Criminal Law, 23 LAW AND CONTEMP.
PROB.401 (1958); An Overview of the 5 Objectives of the Criminal Justice System, ISFMA
(Dec. 29, 2015, 12:00AM), http://www.isfma.com/insider-report/an-overview-of-the-5-
objectives-of-the-criminal-justice-system/ [https://perma.cc/ME28-2MB7] (archived Jan. 3,
2018); Jason W. Swindle, The Five Objectives of Criminal Laws, SWINDLE LAW GROUP (Jan.
18, 2014), http://www.swindlelaw.com/2014/01/the-five-objectives-of-criminal-laws/
[https://perma.cc/2WKP-RQZ8] (archived Jan. 3, 2018).
206. See Coleman, supra note 10 (noting how adultery laws fail to adequately deter and
punish violators).
207. There are obvious difficulties involved in obtaining accurate information concerning
the prevalence of cheating in marriages. Most sources admit this at the outset. See John M.
Grohol, How Common is Cheating & Infidelity Really?, PSYCH CENTRAL (2013),
http://psychcentral.com/blog/archives/2013/03/22/how-common-is-cheating-infidelity-really/
[https://perma.cc/K576-FF29] (last visited Jan. 3, 2018) (“[O]ver the course of your entire
relationship, the chances of infidelity may rise to as much as 25 percent.”); Facts and Statistics
The fact that adultery goes mainly unprosecuted in the United States
shows that the law is not persuading people to stop committing
adultery. 208 The prevalence of adultery in Taiwan is unknown, but
according to aforementioned research it is evident that spouses,
specifically husbands, continue to cheat on their significant other
despite criminalization, and critics contend the continued
criminalization of adultery cannot be successful in regulating or
preventing extramarital sex. 209 Of course, considering the private
nature of sex generally, it is difficult to effectively “catch” a
perpetrator, which in turn provides little legal incentive to not commit
adultery. Despite general opposition to the concept of infidelity in
both countries, people continue to do it and, more importantly, not be
prosecuted nearly as much as the crime actually occurs. 210 Between a
lack of prosecution in the United States, and requiring the victim to
press charges against a spouse and/or paramour in Taiwan, any type
of deterrence more plausibly derives from relational and moral
repercussions of adultery rather than the legal ramifications. 211
Criminalization does not play a significant enough role in deterring
adulterous behavior to warrant continued penalization.
A more retributive function of the law is the most
psychologically convincing rationale for the continued regulation of
adultery, but it does not work towards the goal of protecting marriage.
about Infidelity, TRUTH ABOUT DECEPTION, https://www.truthaboutdeception.com/cheating-

and-infidelity/stats-about-infidelity.html [https://perma.cc/KRZ6-7R2U] (last visited Jan. 3,
2018) (“It is estimated that roughly 30% to 60% of all married individuals (in the United
States) will engage in infidelity at some point during their marriage.”); Castleman, supra note
92 (“Every year, 10 percent of spouses admit cheating.”); Meenakshi Chaudhary, Major
Effects of Extra-Marital Affairs, ONLY MY HEALTH (Jun. 17, 2014),
http://www.onlymyhealth.com/major-effects-extra-marital-affairs-1332313120
[https://perma.cc/78GR-VHX6] (archived Jan. 3, 2018) (“According to a survey done by
National Opinion Research Center, 17% of women in marital relationship have committed
adultery while 25% of men have had extra-marital affairs. Also it is quite shocking that the
number of married people cheating on their spouses is much higher than unmarried people
cheating on their partner.”).
208. See supra Section II.C.
209. See supra Section II.A.2; Lee, supra note 46, at 4 (“Given such development, it
would be a delusion to believe the existing adultery law could successfully regulate or prevent
extramarital sex, especially when it is a weak and limited tool by design.”); see also Lee Case
Study, supra note 61, at 434-46 (discussing the breakdown of traditional Taiwanese family
structure to the result of greater individualization).
210. See supra Section II.C.
211. See supra Sections I.A. & II.C.
Criminal laws often aim to satisfy “the thirst for revenge, anger, and
hate…that criminals ought to suffer in some way for their crimes.” 212
This is particularly relevant in the case of adultery, where a spouse
may feel hurt, anger, and the need for revenge after learning of a
partner’s infidelity. 213 But penalizing a person’s relational faux pas
with formal criminal proceedings does the opposite of protecting a
marriage; the use of criminal law to bring about revenge or retribution
is particularly damaging to the prospects of fixing or maintaining a
relationship, which is ultimately many US and Taiwanese couples’
goals after learning of infidelity. 214 While looking to, for example, a
counselor, parent, or community leader may be an appropriate
authority to gain advice on how to mend a broken marriage, the
criminal courts are the “wrong place” to find protection for the
family. 215 For countries that defend their criminal sanctions on
adultery by advocating to keep the family together and avoid
divorce, 216 the law should be an avenue to encourage reconciliation
rather than to destroy prospects of it. Thus, while repercussions of the
criminalization of adultery serve the purpose of revenge for a
particular victim, a criminal response is inappropriate when weighed
against the governmental and public interest of maintaining and
protecting marriages.
212. Swindle, supra note 205.

213. Howard Iken, The Long Lasting Legal and Psychological Effects of Infidelity,
DIVORCED MOMS (Mar. 4, 2014), http://divorcedmoms.com/articles/the-long-lasting-legal-
and-psychological-effects-of-infidelity [https://perma.cc/R2PE-94B4] (archived Jan. 11,
2018); Richard P. Fitzgibbons, Marital Infidelity, MARITAL HEALING (2015),
http://www.maritalhealing.com/conflicts/maritalinfidelity.php [https://perma.cc/ZDQ3-2UKJ]
(last visited Jan. 3, 2018) (discussing the psychological repercussions of discovering a
spouse’s infidelity).
214. Elizabeth Bernstein, Back to Happily Ever After, WALL ST. J. (May 1, 2012),
http://www.wsj.com/articles/SB10001424052702304050304577376152391225734 (noting
that between thirty and eighty percent of couples afflicted by an adulterous affair want to
remain married); Warmack, supra note 71 (“Although divorce is growing in acceptance in
Taiwan, it’s still not preferable, especially when it wrecks families, counselors say. ‘Even in
our society, we don’t encourage divorce,’ said Lee of Warm Life. ‘We still want them to keep
the family.’”).
215. Archaic Adultery Laws, supra note 73 (“When adultery happened in past eras,
people would have looked for authority – someone powerful in the extended family or in the
community, to sort things out. Hence, the main pattern of thought on the island is still the
traditional one, meaning people wanting to protect their family look for authority – and in the
wrong place, namely the criminal courts… .”).
216. See supra Part I.
The criminalization of adultery is not only ineffective at serving

both governments’ ultimate moral goals, it is also discouraged by the
international community. The United States is a UN Member State,
and Taiwan, though not a Member State, often adopts or passes into
law UN treaties and covenants, which holds the country legally bound
to its provisions. 217 The United States signed 218 the Convention on the
Elimination of All Forms of Discrimination against Women
(“CEDAW”) and International Covenant on Economic, Social and
Cultural Rights (“ICESCR”), and signed and ratified 219 the
International Covenant on Civil and Political Rights (“ICCPR”). 220
Taiwan signed, ratified, and passed laws to make legally binding
ICCPR and ICESCR, 221 and adopted CEDAW to be effective as
217. Yean-Sen Teng, Who is Afraid of Human Rights? A Taiwanese Perspective, in THE
UNIVERSALISM OF HUMAN RIGHTS 167-68 (Rainer Arnold ed., 2013). The United Nations
does not recognize Taiwan as a sovereign country; thus, it is unable to have UN Member State
status. See Edward M. Gomez, Taiwan seeks United Nations membership. China and the U.S.
say: “No way!”, SFGATE (Feb. 26, 2008), http://blog.sfgate.com/worldviews/2008/
02/26/taiwan-seeks-united-nations-membership-china-and-the-u-s-say-no-way/
[https://perma.cc/W2SA-BVP2] (archived Jan. 3, 2018).
218. Signing a UN treaty or convention expresses a “willingness of the signatory state to
continue the treaty-making process.” While it does not mean the Member State consents to be
bound by the treaty or convention, it does require the State to refrain from acting in a way that
would contravene the object and purpose of the instrument. What is the difference between
signing, ratification and accession of UN treaties?, DAG HAMMARSKJOLD LIBRARY (Nov. 29,
2016), http://ask.un.org/faq/14594 [https://perma.cc/TYM5-8HGZ] (archived Jan. 3, 2018)
(hereinafter DAG HAMMARSKJOLD LIBRARY).
219. Ratifying a UN treaty or convention indicates a Member State’s consent to be
bound to a treaty or convention. DAG HAMMARSKJOLD LIBRARY, supra note 218.
220. Convention on the Elimination of All Forms of Discrimination against Women,
UNITED NATIONS TREATY COLLECTION, https://treaties.un.org/PAGES/
ViewDetails.aspx?src=IND&mtdsg_no=IV-8&chapter=4&clang=_en [https://perma.cc/B94M-
GNW3] (last visited Jan. 3, 2018); International Covenant on Civil and Political Rights,
UNITED NATIONS TREATY COLLECTION, https://treaties.un.org/PAGES/ViewDetails.aspx?
src=TREATY&mtdsg_no=IV-4&chapter=4&clang=_en [https://perma.cc/836Y-B2PY] (last
visited Jan. 3, 2018); International Covenant on Economic, Social and Cultural Rights,
UNITED NATIONS TREATY COLLECTION, https://treaties.un.org/PAGES/ViewDetails.aspx
?src=IND&mtdsg_no=IV-3&chapter=4&clang=_en [https://perma.cc/3MBQ-9PD3] (last
221. Taiwan was a Member State until 1971, and thus was able to be a signatory on the
Covenants in 1967. Wendy Zeldin, Taiwan: Two International Human Rights Covenants
Ratified, LIBRARY OF CONGRESS (Apr. 15, 2009), http://www.loc.gov/law/foreign-
news/article/taiwan-two-international-human-rights-covenants-ratified/
[https://perma.cc/M7QR-528M] (archived Jan. 3, 2018); Flora Wang, Legislature Ratifies UN
Rights Treaties, TAIPEI TIMES (Apr. 1, 2009), http://www.taipeitimes.com/News
/taiwan/archives/2009/04/01/2003439900 [https://perma.cc/B7MX-HBWQ] (archived Jan. 3,
2018).
domestic law. 222 These commitments are significant because of their

focus on gender equality as manifested through the law.
First, all Member States have the legal obligations to respect the
equality between men and women as expressed in the UN Charter.223
ICCPR also prohibits and guarantees protection against
discrimination on account of sex. 224 ICESCR requires the protection
of men and women from harmful stereotypes and prejudices, and
ensures non-discrimination in practice despite gender-neutral laws,225
as cultural, economic, and social rights must be protected and enjoyed
equally between men and women. 226 CEDAW endows the greatest
responsibility by demanding countries address social and cultural
patterns of conduct that reflect the notion of “inferiority or the
superiority of either of the sexes or stereotyped roles for men and
women.” 227 CEDAW requires countries to eliminate discrimination
against women in all family and marriage-related issues, and to repeal
all criminal provisions that discriminate against women. 228 Though
the General Assembly has not yet called for blanket
decriminalization, the Working Group on the Issue of Discrimination
Against Women in Law and in Practice specifically opposes the
criminalization of adultery in all countries, basing its recommendation
222. Wendy Zeldin, Taiwan: Law Implementing CEDAW Adopted, LIBRARY OF

CONGRESS (Mar. 31, 2011), http://www.loc.gov/law/foreign-news/article/taiwan-law-
implementing-cedaw-adopted/; Legislative Yuan passes UN convention on gender
discrimination, TAIWAN TODAY (May 23, 2011), http://taiwantoday.tw/news.php?unit=
2,23,45&post=1821 [https://perma.cc/7VR8-VHBM] (archived Jan. 3, 2018) (quoting the
Minister of the Interior, saying, “With passage of the act, the government will work
proactively to eliminate existing gender discrimination and promote gender equality”).
223. “We the peoples of the United Nations determined . . . to reaffirm faith in
fundamental human rights, in the dignity and worth of the human person, in the equal rights of
men and women and of nations large and small . . . ” UN Charter pmbl.,
https://treaties.un.org/doc/source/docs/charter-all-lang.pdf [https://perma.cc/8ZLV-75LU] (last
224. UNHR Office of the High Commissioner, International Covenant on Civil and
Political Rights, art. 26 (March 1976).
225. Comm. on Economic, Social, and Cultural Rights, General Comment No. 16, U.N.
Doc. E/C.12/2005/4, ¶¶ 18-21 (Aug. 11, 2005).
226. International Covenant on Economic, Social and Cultural Rights, art. 3, art. 2 ¶ 2,
993 U.N.T.S. 3 (Dec. 16, 1966).
227. Convention on the Elimination of All Forms of Discrimination against Women,
Dec. 18, 1979, art. 5(a), U.N.T.S. 1249.
228. Id., art. 16 ¶ 1(c), art. 2 ¶ g.
for decriminalization on its disparate impact on women and

enforcement of patriarchal oppression of women in families. 229
The United States and Taiwan, which purport to support the
equality of all people not only through their own constitutions 230 but
also via CEDAW, ICCPR, ICESCR, and (for the United States) the
UN Charter, have an inherent responsibility to their citizens to uphold
and encourage gender parity. The regulation of adultery through heat
of passion defenses and criminalization offends this notion of equality
when the laws discriminate against women, even if the laws are
neutrally written. As mentioned before, changing laws would not only
help eliminate the disproportionate effects these regulations have on
women, but also the sexist cultural repercussions that befall women
involved in situations of adultery.
V. CONCLUSION
The United States and Taiwan are two countries with
dramatically different legal, historical, and cultural experiences. Yet
still, the ramifications of adultery regulation on women are
predictably similar. The United States’ path through adultery
regulation is rooted in dogmatic norms that evolved from direct
sanctions into ancillary legal tactics that punish wives
disproportionately in comparison to adulterous husbands. The
lingering social repercussions on cheating women that rarely disturb
men show that the United States simply has not overcome its gender
bias in matters of adultery. Similarly, Taiwan’s Confucian bedrock
shaped the penal provision—and the discriminatory consequences—
the country maintains today. Bias in prosecution and conviction rates
mirror the cultural punishment women endure as a result of
committing adultery.
229. Report of the Working Group on the issue of discrimination against women in law
and in practice, U.N. Doc. A/HRC/29/40, ¶ 73(c)(v). (Apr. 2, 2015) (recommending the
“[r]epeal [of] all laws that support the patriarchal oppression of women in families, such
as…laws that criminalize adultery”).
230. U.S. CONST. AMEND. XIV (declaring that the states must provide all people equal
treatment under the law); MINGUO XIANFA art. 7 (2005) (“All citizens of the Republic of
China, irrespective of sex, religion, ethnic origin, class, or party affiliation, shall be equal
before the law.”).
The number of countries that traverse the same path is not

insignificant. 231 In many areas of the world, women who have been
unfaithful to their husbands will be sentenced to physical and
psychological torture or death. 232 In its continued regulation of
adultery, the United States and Taiwan are in bed with these nations.
Considering the negative implications of regulating infidelity, the
United States and Taiwan turn a blind eye toward millions of women
affected by adultery laws around the globe. Deregulation of adultery
in all sectors of the law is the only way to ensure that discriminatory
societal and legal consequences discontinue, so women can one day
stop worrying about what happens next.
231. See paper produced by International Human Rights Clinic at Fordham University
School of Law, 2015, on file with author.
232. Id.

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Fordham International Law Journal

Volume 41, Issue 2 Article 4

Punishing Passion: A Comparative Analysis of

A COMPARATIVE ANALYSIS OF ADULTERY

women in both countries. Importantly, the regulation of adultery in

II. PAST AND PRESENT: ADULTERY IN SOCIETY

American Law Institute to recommend the decriminalization of

affection and criminal conversation 16 gave husbands the opportunity

a spouse is still relevant in the US legal system. 19 Some states, such as

originally designed to punish a guilty spouse, but to be a “sanctioned

to award a spouse. 28 Adultery may also influence the division of

Twenty states continue to keep adultery on the books as a

regulation does not imply a moral or cultural approval of adultery. In

TIMES (Nov. 14, 2012), http://www.nytimes.com/2012/11/15/us/adultery-an-ancient-crime-

discussed in Part III, it is this moral disapproval conflated with the

[C]riminal prohibition against adultery was based on the notion

toward equal criminalization of adultery in the 1930s. 53 Advocates

heavily embedded in the [then] current divorce laws.” 61 Women had

requiring more labor from women, a previously untapped market.66

Despite this socio-cultural evolution, however, a revised adultery

divorce.com/Taiwan:-Divorce-Rate-Rises [https://perma.cc/LNK5-MUAS] (last visited Jan.

organization at the forefront of Taiwanese feminist activism since the

divorce decree based on a spouse meeting certain criteria. 84 A divorce

III. PRACTICAL EFFECTS AND CONSEQUENCES

84. Civil Code Art. 1050, 1052 (2015) (Taiwan), http://db.lawbank.com.tw/Eng/FLAW

explore the legal ramifications of adultery as a heat of passion defense

A. Sluts and Studs: Social Implications of Adultery

90. See infra Sections II.A.1 & 2.

of celebrity scandals and repercussions affecting average US

COSMOPOLITAN (Apr. 27, 2016), http://www.cosmopolitan.com/entertainment/celebs/a57582

can be compared to an event that occurred only one month before, in

impeached for lying about his adulterous conduct. 103 Arguably,

UNIVERSITY OF VIRGINIA MILLER CTR, http://millercenter.org/president/biography/clinton-

numbers than those of men. 106 Victims of revenge porn have

similar situations and continue to burden US women despite strides

114. See generally supra notes 109-13.

which is lenient toward unfaithful husbands despite its general

B. To Poke a Sleeping Bear: Adultery as Provocation

male victims estimated to have been killed by a girlfriend or wife.134

“adequate provocation,” or a situation in which a reasonable person

passion crimes. 143 Some have analyzed this phenomenon through a

differences between a reasonable man and woman in the context of

similar to those held by domestic abusers. 162 Donna K. Coker, a law

scope of this research, Taiwanese women likely suffer physical

C. Policing the Bedroom: Prosecution and Conviction Rates for

176. Lee, supra note 46, at 4-5

percent of men doing so against their wives. 182 Wives of adulterous

182. Xi, supra note 80; Hsiao-wei, supra note 73.

Drucker, The Age of Social Transformation, ATLANTIC (Nov. 1994),

before, can be detrimental and result in emotional turmoil and broken

IV. ARGUING FOR DEREGULATION

A. Eliminating Adultery as a Heat of Passion Crime Provocation

196. 9.6 Manslaughter, supra note 138.

199. A. Miller, supra note 141, at 273-75.

about Infidelity, TRUTH ABOUT DECEPTION, https://www.truthaboutdeception.com/cheating-

212. Swindle, supra note 205.

The criminalization of adultery is not only ineffective at serving

domestic law. 222 These commitments are significant because of their

222. Wendy Zeldin, Taiwan: Law Implementing CEDAW Adopted, LIBRARY OF

for decriminalization on its disparate impact on women and