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？ |
| (“The plaintiff contends the Utah adultery statute violates a privacy interest protected by the Fourteenth Amendment…The freedom of disclosure is not involved in the act of adultery since the joint nature of the act inherently involves disclosure beyond one person. There is no marital union, no privacy protected by familial interests; indeed the act has for centuries been viewed as totally antithetical to the family. It is a physical sexual act involving two persons not having any obligation to each other. The Utah law does not compel disclosure of anything. It precludes the act in the first instance. The privacy is in conduct like that of deceit or theft and similar to that of conspiracy, not that of a marriage relationship…. It is suggested here that adultery is akin to a conspiratorial act in violation of the family….“Adultery is a transgression against the marriage relation which relation the law endeavors to protect....”… An adulterous relationship imposes costs on the noninvolved spouse…. Costs may also be incurred by the errant spouse. Emotional costs may be substantial…. It may lead to unwanted children and greater problems of child support…. It may also lead to the destruction of a family and even serious violence. A state also has an interest in preventing disease and adultery may be more deterrable than fornication…. The adulterer whose liaison produces offspring may not have a protectable interest in the child. Adultery does not guarantee special status towards a child produced from the liaison….. Adultery in the case of many will lead to divorce and breakup of a family unit as a positive social and economic unit and force in society. The results can be tragic and the social costs may impact innocent children and relatives….adultery to have serious and endangering social and psychological consequences. It is not a victimless crime. There can be substantial adverse social costs. The state has an interest in avoiding the deficits and damages of the adulterous affair. The fact that adultery may occur with some frequency is no justification for a constitutional restriction on the criminalization of adultery any more than on embezzlement or numerous other violations of trust which frequently occur…. Whether under the circumstances a strict scrutiny or a rational basis standard applies for constitutional review is not material to the resolution of this issue…. The State of Utah and the defendants have a compelling state interest in preventing adultery…. Law Professor Martha A. Fineman…notes that in regulating intimacy, the norms of the nuclear family have been firmly supported by the law…. Professor Fineman notes changes that have taken place, but the “family as a legal, functional, and symbolic institution in America is based” on natural law…. |
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