大法官解釋 釋字第791號 |
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| 公佈日期：2020/05/29 |
| 解釋爭點 |
| 1、刑法第239條規定是否符合憲法第22條保障性自主權之意旨？本院釋字第554號解釋應否變更？ 2、刑事訴訟法第239條但書規定是否符合憲法第7條保障平等權之意旨？ |
| Southern Sur. Co. v. Oklahoma, 241 U.S. 582, 586, 36 S.Ct. 692, 694, 60 L.Ed. 1187 (1916). In addition to prohibiting adultery by criminal statute, Massachusetts law also makes adultery a ground for divorce.… We take judicial notice that the act of adultery frequently has a destructive impact on the marital relationship and is a factor in many divorces. We are not unaware that the public policy against adultery is most often expressed in these divorce proceedings and that the crime of adultery is rarely made the subject of criminal prosecution.…as the Appeals Court further noted: “To recognize that fact is not to say that [this statute has] become invalid or judicially unenforceable.…The failure to prosecute others is not presented by the legal questions reported in this case. The statute remains as a permissible expression of public policy. If any lack of prosecution of the crime of adultery indicates a general public disfavor with the statute, appropriate means exist to address such disfavor to the Legislature, which has the power to change or repeal the statute.… In the absence of a constitutional violation, we have no power to invalidate the statute.” 389 Mass. 171, 174-6 (1983).） |
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