A new version of Vietnam’s Penal Code is coming into effect from July this year, raising concerns of law experts over an amended article which subjects adulterers to jail terms.
Article 182 of the 2015 Penal Code stipulates that those who commit adultery which results in divorce or the suicide of the husband, wife, or their children shall be sentenced to up to three years in prison.
The code, which will take effect on July 1, 2016, will replace the current version which has been in use since 2000.
Lawyer Nguyen Huu The Trach said Article 182 is an elaboration on Article 147 of the existing Penal Code, which punishes acts of infidelity that cause serious consequences.
In practice, Trach said, it is very difficult for officials to determine what is considered a serious consequence, while judicial records have proven that Article 147 is not often referred to in real life.
Article 182, therefore, is seen as an improvement to the current law, though its provisions have stirred new controversy surrounding the topic.
Cause or condition?
Lawyer Huynh Phuoc Hiep, a member of the Ho Chi Minh City Bar Association, said the term “lives like husband or wife” as mentioned in the article is usually subjective, and without specific quantitative provisions, it is very difficult to determine which act falls into this category to punish those engaging in extramarital affairs.
Due to its subjectivity, opinions on the act vary from person to person, thus leading to the criminalization of civil relations, Hiep said.
According to the lawyer, the wording of Article 182 also means that unfaithfulness has to be the cause of divorce or suicide in order for the convicted to be jailed.
In reality, there have been many cases where divorce follows an act of infidelity, and is not necessarily its direct result, but the parties’ ensuing unskillful conduct instead, Hiep elaborated.
In these cases, the act of cheating is just a condition for the divorce, he added.
“So, when is adultery a cause and when is it a condition?” Hiep asked. “It’s almost indistinguishable for judicial bodies.”
Agreeing with Hiep, lawyer Le Cao, a member of the Da Nang Bar Association, said, “A circular has laid out some signs for determining which acts are considered living ‘like husband or wife,’ such as having children or being confirmed by local authorities or neighbors. However, people often don’t pay as much attention to their neighbors, which makes it difficult to prove such acts.”
Lawyer Trach said the cause of any divorce has to be clarified during court proceedings, but in real life couples often hide the true reason for their separation to save their honor.
Judicial agencies do not have the obligation to look into this, which inadvertently makes it hard for competent bodies to investigate and prosecute the case, Trach added.
Furthermore, Trach said, a spouse may abuse this article to wrongly accuse their husband or wife of adultery in order to render them punishable by law.
Likewise, those who commit suicide tend to hide their true reason or sentimental life prior to taking their own lives, “so it is necessary to further inspect the validity of the evidence left behind to rule out any chances of false accusations, which can be very challenging,” Trach explained.
The determination of the cause and effect relationship in this case is therefore, according to Trach, personally dependent on each prosecutor.
Comprehensive assessment to guarantee practicality
Lawyer Le Cao said Article 182 of the 2015 Penal Code does not introduce anything new, but rather elaborates on Article 147 of the 1999 Penal Code. The elaboration, however, is unscientific, hard to apply in practice, and unconvincing to the people.
“Vietnam is not the only country that has laws to protect the constitution of monogamous marriage. However, we must conduct more comprehensive assessment of this law to ensure its practicality,” Cao said.
Lawyer Trach added that current guidelines on the issue are outdated and unsuitable for the current reality, making it difficult to enforce this article in everyday life and troubling prosecutors in the handling of legal cases.