Adultery is more of a moral than legal crime

On Wednesday, Ji Wenlin, former vice-governor of Hainan province, was expelled from the Party and removed from the official post for taking bribes and adultery. A few days ago, Xu Jie, deputy chief of the State Bureau for Letters and Calls was removed from his post for the same reason. Such cases have sparked an online debate on whether adultery constitutes a crime under China's laws.

Some people believe that although extramarital affairs are moral rather than legal issues, at times they could lead to violence and other crimes. In order to avoid such consequences, therefore, law enforcement officers should treat it as a crime. For example, a woman poured petrol on another woman and set fire to her in Kunming, Yunnan province, on the weekend. Since the tragedy was the fallout of the extramarital affair the suspect's husband was having with the victim, many people say that the law should be enforced to punish those who are having extramarital affairs.

In adultery cases, however, we should follow the principle of legality, which means if a person's action is characterized as a crime, there has to be related specific legal provisions to convict him/her. But according to Chinese laws, China does not have any legal provision to punish a person for adultery.

China, however, has specific provisions for convicting a person for committing rape, which Article 236 of the Criminal Law in China defines as the criminal offence of compelling a woman/girl through physical force or duress to have sexual intercourse. Although the key to such a crime is whether the offence is committed against the victim's will - and it seems that extramarital affairs are voluntary actions on the part of both parties - there are several exceptions that could constitute a crime.

First, if one has had sexual intercourse with a girl below the age of 14 years, a judge can rule his action as rape.

Second, according to Article 259 of the Criminal Law, if one has had sex with the spouse of a military officer and even if both parties consented to it, a judge can sentence him up to 3 years in prison. And if one has had sexual intercourse with the spouse of a military officer based on his power relation, he could be convicted for rape.