1.1 Marriage as a State-Sanctioned Site of Sex and Procreation

Modern states, no matter how liberal and laissez-faire they may be, demark certain sexual expressions as illegal, such as polygamy and incest. Historically, it was legal marriage that differentiated legitimate from illegitimate sex. As Reference MurrayMurray (2008) aptly points out, the traditional legal framework relied on the marriage-criminality duality of sex. Marriage, in this sense, was an exclusive site for state-sanctioned sex and procreation. The past five decades, however, have witnessed increasing deregulation and decriminalization of sex and intimate choices (Reference Frank, Bayliss and BoutcherFrank et al. 2010; Reference MurrayMurray 2008), indicated by the abolition of anti-miscegenation laws, legalization of same-sex marriage, and decriminalization of prostitution and adultery. This emerging legal trend reflects the changed cultural view of sex as a matter of individual choice and pleasure (Reference Frank, Bayliss and BoutcherFrank et al. 2010; Reference GiddensGiddens 1992), and it signals that the previous marriage-criminality duality in the law is being blurred (Reference MurrayMurray 2008).

In the last decade, the Korean courts have made several decisions that clearly signaled the emerging trend of decriminalizing intimate choices. The first of these decisions was the ruling of the Criminal Code 304 (Case No.: 2008HUNBA58, Date of Verdict: 2009.11.26), which used to allow (only) women to sue men for enticing them to engage in intercourse under the false pretense of a marriage proposal. Not all women were eligible for this provision;women who had had multiple sexual partners were not eligible. Judges of the Constitutional Court ruled against the Code, citing that it “restricts men's sexual autonomy and rights to privacy and freedom” and “treats women as if they are minors and the state unduly denies women's self-determination under the name of protecting women.” In 2005, the Civil Code 7427, that prevented divorced women from remarrying for six months, was eliminated; and in 2015, the Constitutional Court ruled article 2 of the Civil Code 844 partially unconstitutional (Case No. 2013HUNMA623, Date of Verdict: 04.30. 2015). This article stipulated that babies born within 300 days of a divorce are assumed to be children of the ex-husband. The ruling stated that the article “violates the mother's human rights and basic liberty in regard to marriage and family life.” Finally, in 2015, after almost a decade of legal debate, the Constitutional Court ruled Criminal Code 241 (adultery) unconstitutional (Case No. 2009HUNBA17, Date of Verdict: 02.26.2015). In ruling against adultery being a criminal offense, the judges declared that it “was beyond the bound of the state's purview to restrict the sexual freedom and self-determinacy of individuals.”

Even within the emerging new legal framework, legal marriage and sex within legal marriage still remain the most valorized forms of intimate relationships (Reference MurrayMurray 2008). This is especially true with female marriage migrants. Migrants, mainly female migrants, stir sexualized anxieties (Reference Yeoh and HuangYeoh and Huang 2010) and are viewed as a moral threat to household and home (Reference NäreNäre 2014: 371). To take the United States as an example, the perception of Asian women as prostitutes justified the exclusion of Asian women as “a corrupting force and threat to monogamous Christian marriage” (Reference FirstenbergFirstenberg 2011: 85). The Immigration Act of 1907 included a provision to screen out “women [who migrate] for lewd and immoral purposes” (Reference LeeLee 2010: 248). It is noteworthy that the statutory provisions “did not apply to all forms of immoral behavior, only to sexual immoralities, of which prostitution was understood to be the prototype” (Reference DublerDubler 2006: 762). Even today, female migrants are suspected of sexual imprudence, and the notion that marriage migrants pose a threat to the “sanctity” of marriage persists (Reference NäreNäre 2014; Reference Yeoh and HuangYeoh and Huang 2010). Our analysis of the application of Korea marriage migrant court cases will show that despite increasing liberalization of sexual jurisprudence, Korean judges view marriage migrants through the lens of marriage-criminality binary and impose stricter sexual moral rules on marriage migrants.

1.2 Marriage as a Citizenship-Delineating Institution

Marriage also serves as a crucial institution for delineating the boundaries between citizens and noncitizens. Parents can confer citizenship onto their biological or adopted children, and one may acquire citizenship derivatively through marriage to a citizen. Concerns about “fraudulent marriages” are based on the role of marriage as a citizenship-delineating institution. For the state, marriage fraud may entail “an unwanted inclusion of new members whom the state would not have chosen if it had known the truth about them” (Reference AbramsAbrams 2012: 53). But family laws in many liberal democratic states have become liberalized, and marriage has become an insufficient mechanism to regulate membership (Reference AbramsAbrams 2012). As such, the state came to rely more heavily on immigration and criminal laws (Reference MinterMinter 1993); family reunification and fiancé visa policies have become increasingly restrictive in the past few decades (Reference Bonjour and de HartBonjour and de Hart 2013; Reference EggebøEggebø 2013; Reference Foblets and VanheuleFoblets and Vanheule 2006; Reference JonesJones 1997; Reference LanLan 2008; Reference RufferRuffer 2011; Reference SchmidtSchmidt 2011; Reference WrayWray 2006). Compared to other laws, such as tax and pension, immigration law requires the most demanding and expansive proof of marriage (Reference AbramsAbrams 2007, Reference Abrams2012; Reference JonesJones 1997), and those migrants who are suspected of entering a fraudulent marriage are criminally charged.

Marriage, as a citizen-delineating institution, genders citizenship in two important ways. First, women's citizenship has depended upon their marital status for a long time (Reference BredbennerBredbenner 1998; Reference GardnerGardner 2005, Reference MundayMunday 2009; Reference NicolosiNicolosi 2001). Second, descent-based citizenship is another mechanism of marriage gendering citizenship. While most modern states acknowledge both men's and women's rights to confer citizenship upon their children, for a child born out-of-wedlock, acquiring citizenship from their father often depends on the father's willingness to acknowledge the child as their own (Reference Augstine-AdamasAugustine-Adams 2000). On the contrary, a child born to a married woman is assumed to be the offspring of the husband, who may or may not be the child's biological father. By making the legal status of husband trump the biological status of father, marriage empowers the husband to determine “the terms of legitimacy that render some children citizens and others aliens” (Reference Stevens, Cohen, Jones and TrontoStevens 1997: 66; see also Reference Abrams and BrooksAbrams and Brooks 2009). As such, marriage- and descent-based citizenship reinforce the idea of “women as sexually responsible mothers” (Reference Augstine-AdamasAugustine-Adams 2000: 112) and justify harsher policing of women's sexual transgressions than men's (Reference Abrams and BrooksAbrams and Brooks 2009).

The changes in Korean nationality laws reveal how they gender citizenship and how migrant spouses' access to Korean citizenship has become more restricted, while the family laws have become more liberalized. Until 1998, women's citizenship in Korea was mainly derivative; a woman's Korean citizenship was rescinded when she married a foreign man. Further, one had to be fathered by a Korean man to be eligible for Korean citizenship—having a Korean mother was not enough. The discourse around marriage migrants started to change in 1997 with a set of amendments proposed to increase gender equality in the Korean nationality law. With the “gender-neutral” nationality law, migrant wives lost their automatic access to Korean citizenship. The then Minister of Justice explained that the rationale for revoking automatic citizenship for migrant women was “to prevent foreign women from using marriage to Korean men as an easy way to gain Korean citizenship.”Footnote ⁶ Concerns over fraudulent marriages entered legal discussion again with the nationality law amendment of 2010, which allowed dual citizenship for the first time in Korean history. The 2010 law states that continued marriage to a Korean husband is one of the preconditions for dual citizenship. The fear of “fraudulent marriage” is used to justify exclusion of marriage migrants from full eligibility for dual citizenship. As an expert review committee member stated while the amendment as being drafted, “given the high divorce rates among international marriage couples, there have been some serious concerns that allowing dual nationality for all foreign brides will actually exacerbate the dissolution of those families.”Footnote ⁷

Even after a marriage migrant finally acquires Korean citizenship, the 2008 Nationality Law Amendment made it possible for her citizenship to be revoked if it is proved that she acquired it illegally (e.g., a fraudulent marriage).Footnote ⁸ In 2009, proposals to exempt marriage migrants who had given birth to a child from the citizenship repeal clause and to place a five-year limit on Korean citizenship annulment were up for consideration in the National Assembly. The proposals were rejected on the grounds that they would “legalize the status of those who have acquired Korean citizenship via illegal or criminal means and may increase the number of illegal immigrants.”Footnote ⁹ Our empirical analysis will demonstrate that Korean judges share the same concerns expressed by the members of the legislative branch introduced above and assume the role of gatekeepers of Korean citizenship.

1.3 Sociolegal Construction of Marriage

Marriage in a modern state is a legal phenomenon, where the sovereign state has the ultimate authority to classify a union as “marriage.”Footnote ¹⁰ While marriage is a legal contract that is legitimated only by the state, for a judge to say what marriage “is” is complicated (Reference Abrams and BrooksAbrams and Brooks 2009: 6). The legal ambiguities stem from marriage being as much a cultural as a legal concept (Reference HullHull 2006). The burgeoning literature on family migration has shown us how specific understandings of love and marriage inform legal authorities' decisions of which marriages are real and which are fraudulent. In Europe and North America, for example, marriage is considered authentic if two individuals enter freely and the union is based on “true love.” The indicators of fake marriage used by Belgian civil registrars include: parties have never met before the marriage, the intervention of an intermediary and a large age difference (Reference Foblets and VanheuleFoblets and Vanheule 2006: 267–8). A similar list is found in Norwegian family reunification and immigration laws (Reference MyrdahlMyrdahl 2010). These laws stigmatize arranged marriage, a practice that does not fit into the Western concept of romantic love and marriage based on individual autonomy and choice (Reference GiddensGiddens 1992). This view also problematizes trans-border marriages, because they inevitably involve a pragmatic concern of migration, which is considered antithetical to “true love” (Reference ConstableConstable 2003). In Japan, on the other hand, judicial visions of love, sex and marriage take a quite different form. Based on 2700 court opinions, Reference WestWest (2011) demonstrates that Japanese judges hold the position that love is a desirable but not an indispensable component of a marriage; to Japanese judges, “love … is so unachievable in real-life marriages that its absence is expected” (Reference WestWest 2011: 217). Japanese judges instead pay more attention to whether each partner in a marriage is performing the duties and responsibilities of a married couple. In a similar vein, Friedman's analysis of Taiwanese marriage migration policies also shows that duties and responsibilities are prioritized over emotions (Reference FriedmanFriedman 2015). The differing views indicate that marriage is a cultural artifact as well as a legal concept (Reference Abrams and BrooksAbrams and Brooks 2009; Reference HullHull 2006); and in deciding who gets to be a citizen via marriage, judges not only rely on legal principles but also on their own preconceptions of love, sex and marriage.

Marriage is a culturally, as well as legally, significant institution in Korea. Traditionally, marriage was considered a gateway to adulthood (Reference KendallKendall 1996) and was something one would need to do in order to live a “normal” life in Korea (Reference SongSong 2010). Even today, Korea is a “marrying country” (Reference KendallKendall 1996: 4). The pressure to marry is so great that some gay men and lesbians enter “contract marriages” to resolve the social pressure to get married (Reference ChoCho 2009: 405). The marriage migration phenomenon reflects the cultural significance of marriage in Korea. The increasing number of unmarried men is viewed as a social, not just individual, problem, to which the state should attend; and the Korean state and local governments have actively supported marriage migration (Reference FreemanFreeman 2011; Reference KendallKendall 1996).

As much as the Korean state needs migrants to honor its male citizens' right to have a wife and family, the state is also concerned about “undeserving” wives becoming Korean citizens and has intensified its intervention in the regulation of trans-border marriages. For example, the MOJ recently imposed a minimum income requirement for Korean male citizens to be eligible to apply for a marriage visa. MOJ also introduced new Korean language competency requirements. A Korean consulate may refuse to issue a visa to marriage migrants unless they pass a certain level of Korean language competency. It is important to note that these measures are at odds with the emerging cultural and legal view of marriage. As mentioned earlier, there is a developing jurisprudence that views marriage as a matter of individual choice and the state's intervention and regulation is increasingly viewed as illegitimate.Footnote ¹¹ On the contrary, MOJ has increasingly assumed the role of marriage police for trans-border marriages at all stages of their existences: entry to marriage is scrutinized through financial solvency and language requirements; existing marriages are constantly monitored by the Bureau of Immigration officials, and termination of a marriage requires going through the court system, unless the migrant wife is uninterested in staying in Korea after the divorce. If a marriage migrant does not pass MOJ's scrutiny, their spouse visa may be revoked or their naturalization application may be denied or even revoked. Once that happens, their only hope is to appeal the decision to the court.

1.4 Bringing the Court Back In

Historically, the issues of immigration and citizenship have been mainly under the purview of the administrative branch, and the judicial branch has shown deference to the executive bodies of the government (see, e.g., Reference AleinikoffAleinikoff 2002; Reference CharlesCharles 2010; Reference JohnsonJohnson 1993; Reference MoyceMoyce 1986). Judicial deference is based on the idea that deciding national membership is a matter of state sovereignty, therefore legislative and administrative bodies of the government may exercise significant discretion. Korea is not an exception. The Constitutional Court (Case No. 2003HUNMA87) declared the issue of immigration to be a matter of state sovereignty and stated, “less strict standards [of checks and balances] shall be applied in judging whether an exercise of the government authority violated the Constitution” (cited in Reference KimJ.Y. Kim 2015: 76). This is one of the reasons why immigration scholars have focused mainly on the executive branch (see, e.g., Reference FriedmanFriedman 2010, Reference Friedman2015; Reference GilboyGilboy 1991; Reference HeymanHeyman 1995; Reference KimJ. Kim 2011; Reference SatzewichSatzewich 2014).

In the past few decades, however, scholars have noted the growing role of the courts in protecting the rights of migrants (see, e.g., Reference JoppkeJoppke 1998, Reference Joppke2010; Reference KawarKawar 2011; Reference MartinMartin 1983; Reference Soennecken and SaratSoennecken 2013; Reference SchuckSchuck 1984; Reference Schuck and WangSchuck and Wang 1992). According to this view, courts and nonelected judges are insulated from the public pressures of anti-immigrant sentiment and have increasingly overruled decisions made by re-election-seeking legislators and restriction-minded state executives. More and more immigrants challenge the administrative branch's decision by suing the government (Reference Palmer, Yale-Loehr and CroninPalmer et al. 2005; Reference SchuckSchuck 1984). The role of the courts is particularly significant in interpreting the good morality requirement. The ambiguity of the requirement not only leaves room for migrants to challenge executive decisions, but also for judges to intervene with their own interpretation of the legal meaning of moral character. The discretionary power given to bureaucrats or judges can be a double-edged sword for migrant applicants and petitioners, as it can lead to unpredictable and seemingly arbitrary decisions. Indeed, observing remarkable disparities in decisionmaking from one asylum office to another and from one immigration judge to another, Reference Schoenholtz, Ramji-Nogales and SchragSchoenholtz et al. (2007) characterize the US asylum adjudication system to be one of “refugee roulette,” rather than “equal justice under the law.” In the case of Korea, the majority of the court statements we reviewed had a common phrase, stating “bad moral character does not necessarily mean having a criminal record. It is an overall assessment of a person's quality as a future member of [Korean] society, and it has to consider a broad range of factors such as gender, age, occupation, family relationship, criminal records, etc.” With this definition, Korean judges hold significant discretionary power in interpreting what constitutes moral character.

Despite its increasing significance, systematic empirical analysis using court cases is still largely lacking. A few existing studies focus mainly on whether and how frequently courts make decisions favorable for the immigrant petitioners (see, e.g., Reference SchuckSchuck 1984; Reference Schuck and WangSchuck and Wang 1992; Reference Schoenholtz, Ramji-Nogales and SchragSchoenholtz et al. 2007), leaving the rich data found in court statements underutilized. Judicial opinions are socially embedded and the language and rationale the judges provide in the court statements are sociologically important data, as a reflection of the discursive and symbolic power of law (Reference He and NgHe and Ng 2013: 282). With an in-depth analysis of these data, this article sheds new light on how the judiciary uses marriage to construct citizenship in a gendered and sexualized manner.

2.1 Data and Case Selection

Court decisions were collected through three different sources: (1) naturalization litigation filed against the MOJ, (2) visa litigation filed against the Bureau of Immigration and (3) cases posted on the Supreme Court Web site. For the first two sources, the first author used the “case search service” at the Supreme Court Library (library.scourt.go.kr), in May 2015. The combined search terms of “naturalization” (gwihwa) and “visa” returned 582 cases. To keep the number of cases manageable, we limited case inclusion to those filed at the Seoul Administrative Court, where the plurality of appeals are filed. The Seoul Administrative Court processed 104 naturalization and 84 visa litigations filed by marriage migrants. Among these 188 Seoul Administrative Court appeals cases, about 55 percent were initially rejected by MOJ for suspicion of fraudulent marriage, followed by 15 percent for having criminal records, 14 percent for violating immigration regulations and 15 percent for other reasons. Most of the plaintiffs (57 percent) were female and 19 percent male. About 23 percent of the cases the court documents did not contain sufficient information to determine the sex of the plaintiff. Judges ruled in favor of migrant spouses in 19 out of these188 cases, about 10 percent.

The authors read the 188 cases and jointly chose thirty-four cases that contained themes of sexual morality; of these, fourteen cases involved sexualized labor and twenty cases involving fraudulent marriage charges due to perceived sexual imprudence on the part of marriage migrants. These thirty-four cases are used for the first and the third empirical analysis sections. Out of thirty-four cases, all but eight involved migrant wives and Korean husbands; five cases involved male migrants and wives with Korean citizenship and it was impossible to match the gender and nationality in the remaining three cases. The rate of favorable ruling is among those thirty-four selected cases was 11 percent (4 out of 34 cases). We provide a detailed analysis of the four favorable ruling cases in the third empirical section. But it is important to note that this percentage is much lower compared to the overall rates of favorable decisions of administrative litigation cases in Korea, which hovers around 50 percent.Footnote ¹²

The Supreme Court posts a few selected decisions that they consider to be important to their Web site. The authors reviewed and analyzed an additional seven of these posts that involved marriage migrants. These cases were decided at various courts such as Family Courts (n = 3), District Courts (n = 3) and the Supreme Court (n = 1). Out of the seven cases, four cases were filed by Korean husbands who were seeking annulment of a marriage and the last three cases were filed by marriage migrants, challenging the fraudulent marriage charges by the Prosecutors' Office. These seven cases are used for the second empirical analysis section. The list of all the cases and basic information can be found in Appendix A.

Our analysis is limited in two ways. First, we do not claim that our sample is representative or systematic. Using different search terms might have returned different cases. Second, the scope of our analysis is limited to the information available in the court statements. For example, there is no way for us to know whether Ms. X indeed engaged in sexual massage while Ms. Y did not. In addition, we do not know whether a particular plaintiff had good legal representation. However, finding the truth of each case or examining the effectiveness of legal representation is not the goal of our analysis. Instead, we use the information included by judges (not the lawyers representing marriage migrants) in their rulings to understand how they arrived at their judgments (Reference WestWest 2011), and how those statements reflect the gender and sexual norms that define “good” spouse and “real” marriage.

The format of each court statement is similar. Each statement, which is between three and seven pages long, starts with a brief account of the facts (the migrant's background information and immigration history), when they applied for visa extension or naturalization, why the MOJ decided to reject the application and a summary rebuttal statement by the marriage migrant (plaintiff). After that comes the main focus of our analysis—judges' ruling and the rationale behind their decision. The length of the judges' ruling is about one paragraph when the ruling rejects the plaintiff's appeal, but it is about two or three paragraphs when the ruling overturns MOJ's initial decision. Our empirical analysis consists of three parts. The first section analyses the cases where the judges have found marriage migrants not chaste enough. On the other hand, being too reserved sexually is also seen as a sign of fraudulent marriage, which is the focus of the second section. The third and final section reviews the four cases where judges overlooked alleged or confirmed sexual misconduct and sided with migrant spouses.

2.2 When Marriage Migrants Are Not Chaste Enough

Signaling that the marriage-criminality binary (Reference MurrayMurray 2008) is the prevalent view in the marriage migrant moral jurisprudence, Korean legal authorities regard any sexual or intimate relationship outside of a marriage as a sign of fraudulent marriage. First, any extramarital relationship or hint of infidelity raises suspicion of fraudulent marriage and may disqualify migrants from Korean citizenship. The cases of Mses. N and G exemplify the degree of scrutiny placed on the sexual behavior of marriage migrants.

Ms. N came to Korea in June 2003 as a marriage migrant from Vietnam, but her Korean husband left for Canada in December 2005 and never contacted Ms. N again.Footnote ¹³ Since Ms. N maintained her marriage with her now-absent husband for two years (from June 2003 to December 2005), per Korean Nationality Law, Article 6, clause 2.3, she was eligible for naturalization. She applied for and gained permanent residency in December 2010. She filed for divorce from her missing husband in July 2011. Sometime after her husband's disappearance and before the divorce was finalized (the court document does not provide specific timing), Ms. N started to date a Vietnamese man. The couple had a baby together in April 2011. The MOJ notified Ms. N of the revocation of her permanent residency in February 2013. The judges in the case ruled that the revocation met the conditions of “special circumstances” stated in Article 89, Section 1 of the Immigration Control Act, under which immigration decisions can be rescinded. The judges stated that “MOJ's decision was made without knowing that she had been dating another man and had given a birth to an illegitimate Footnote ¹⁴ child, and it was highly unlikely that MOJ would have approved the application, had MOJ been informed about the fact.”

Similar to Ms. N, Ms. G had her permanent residency status revoked when she remarried to a Chinese man less than two months after her divorce from her Korean husband. Based on how soon she remarried, MOJ concluded that her marriage to the Korean ex-husband must have been fraudulent.Footnote ¹⁵ Ms. G appealed the decision, arguing that she and the Chinese man (now her husband) were just friends while she was married to her Korean ex-husband, and MOJ violated her privacy by checking her text messages without her consent. The judges found that the evidence submitted by MOJ (pictures of Ms. G and her new husband together saved in her cellphone) was convincing enough to prove Ms. G's infidelity, making her first marriage fraudulent (rather than an open relationship, or a failed marriage). It is worth noting that Civil Code 7427, which prohibited women from remarrying for six months after a divorce, was abolished in 2005. While their decision to remarry was legal, in both cases the act was used to deny them Korean citizenship. It is also noteworthy that both Mses. N and G had their permanent residency status revoked. These two cases underscore the undue burden imposed upon marriage migrants in Korea; their actions may be scrutinized even after they have acquired what they believe to be secure legal status. Marriage migrants can have their legal status revoked based on how inferred sexual misconduct affects the perception of their moral character.

Further, any display of emotion toward a former (non-Korean) spouse is heavily policed and any sustained contact with a former spouse is presumed to be a marker of fraudulent marriage and of emotional (and physical) infidelity to current spouses. A Joseonjok man divorced his wife in May 2003 and married a Korean woman that December. When he applied for a visa extension as the spouse of a Korean citizen, the Bureau of Immigration rejected his request on the grounds that “he and his ex-wife were on the same flight to China, while he and his current wife have never traveled abroad together.” But the Bureau did not find enough evidence to criminally charge the Joseonjok man for fraudulent marriage. The judges sided with the Bureau of Immigration nonetheless, in part based on the fact that he “had been paying for his ex-wife's cellular phone bills and supporting his son (with his ex-wife) back in China,”Footnote ¹⁶ duties and responsibilities that Korean judges found a husband would do.

A Joseonjok woman's visa extension was also rejected on similar grounds—that she “made on average only about two phone calls to her husband,” while she “talked more frequently with her ex-husband on the phone.”Footnote ¹⁷ Another Joseonjok woman asked for her Korean husband's cooperation during an immigration officials' home visit and said “I may have to go back to my husband in China if I don't get citizenship here.” The statement was later used against her in court, because it made the judges suspect that “she may have been maintaining a de facto marriage with her ex-husband in China.”Footnote ¹⁸ Another female migrant was denied a visa extension because she “sent money to Mr. A's and Mr. B (her current boyfriend)'s bank accounts while she was married to her husband.”Footnote ¹⁹ That she was in a relationship with Mr. B at the time of the ruling was used to retroactively prove her infidelity during her marriage, thus making her morally unqualified for Korean citizenship. These decisions point to the aspect of marriage as an exclusive site of sex and procreation, showing how Korean judge use the marriage-criminality binary and consider transnational family ties as evidence of emotional (and physical) infidelity.Footnote ²⁰

Korean judges' view is also informed by gendered sexual norms. While migrant wives' alleged infidelity disqualifies them from staying in Korea, Korean husbands' infidelity does not carry much weight in judges' decisionmaking, confirming that a wife's sexuality is more heavily policed than a husband's. For example, Ms. Q appealed the MOJ's decision, arguing that she divorced because “her ex-husband continued to meet with his ex-wife, and he even had her live in the same house and maintained two households under the same roof.” Nonetheless, the judges ruled in favor of MOJ.Footnote ²¹ Indeed, we found only one case (out of 105 naturalizations based on marriage) where the migrant's appeal was upheld because the migrant spouse was not deemed responsible for the failure of the marriage. That case was a Joseonjok female migrant whose husband “became physically and emotionally abusive and started to demand that she earn money when his business started to struggle.”Footnote ²² While the judges apply a strict sexual moral standard to migrant wives, the judges find a husband's inability to support his family more morally appalling than his infidelity. These decisions indicate that judges' decisions are as influenced by their gendered understanding of the duties of husbands and wives as by legal principles.

In addition to infidelity, intolerance of female migrants' sexualized labor is one of the main features that characterize marriage migrant moral jurisprudence in Korea.Footnote ²³ As the cases of Ms. X and Ms. Y introduced at the beginning of the article suggest, sexualized illegality is more harshly judged than nonsexualized illegality. Further, penalties for engaging in sexualized labor may go beyond the female migrant who engaged in the activity. Two Chinese migrants, for example, applied for citizenship on the grounds that their adopted father was a Korean citizen, Mr. C (their mother, Ms. C, married Mr. C). But Ms. C was convicted of solicitation four times between 2010 and 2014. Ms. C was also suspected of infidelity, as she was found to have “exchanged frequent text messages and gifts with another man.” The MOJ found Ms. C's immorality particularly unacceptable, given that she “had cohabited with another man while she was married to Mr. C, and engaged in prostitution while she was married to Mr. C,”Footnote ²⁴ and the MOJ ordered Ms. C to leave Korea immediately. The judges seemed to find the fact that Ms. C had had an affair and was convicted of solicitation while she was married appalling, rendering Mr. C and his marriage victims of an immoral female migrant. While the plaintiffs' naturalization applications were based on their relationship with Mr. C, their adopted father, not Ms. C, their biological mother, judges ruled that the sexual immorality of Ms. C (infidelity and prostitution charges) was proof of a fraudulent marriage between Mr. and Ms. C, and there was a good enough reason to doubt whether the adoption itself was genuine. The sexual moral jurisprudence of Korea found that not only Ms. C, but also her offspring, were unworthy of Korean citizenship.

Sexualized labor is not only seen as a threat to the sanctity of marriage, but also to social morality in general, as indicated by the judges' statement in the case of Ms. X (introduced at the beginning) that “prostitution is a serious social ill that hurts healthy social culture and needs to be eradicated.”Footnote ²⁵ However, it is misleading to assume that judges apply sexual moral standards in the same way to Korean nationals and migrant women, as illustrated by the case of Ms. M, whose application for naturalization was denied because of her conviction for solicitation. She appealed her naturalization denial, arguing that “other than being convicted of solicitation,”Footnote ²⁶ she “does not have any other criminal record, has worked hard and saved up a considerable amount of money, has donated money for good causes and volunteered.” But the judges did not find her good deeds (being industrious and generous) enough to grant her citizenship “because it is prudent to restrict foreigners who engaged in prostitution from naturalizing in the context of increasing social concerns regarding female migrants engaging in prostitution.”Footnote ²⁷ The judges of this case did not try to hide that their decision was based more on her being a migrant than on her own morality. In some sense, what is sexualized is not the nature of the work per se but the migrant bodies (Reference NäreNäre 2014; Reference Yeoh and HuangYeoh and Huang 2010). What matters more is who is doing a particular work, not what the work itself is. Female migrants who have worked at massage parlors or karaoke bars are often assumed to have engaged in sexualized labor (unless proven otherwise) and to be unworthy of citizenship,Footnote ²⁸ even if the actual labor may not have entailed any sexual activities.

2.3 When Marriage Migrants Are Too Sexually Reserved

As demonstrated in the previous section, suspected sexual imprudence often disqualifies marriage migrants from citizenship. But inability or unwillingness to have a sexual relationship raises suspicion of marriage fraud and also may block a marriage migrant's path to Korean citizenship, solidifying the notion that marriage is a state-sanctioned vehicle for sex and procreation. There were a few cases where Korean judges annulled the marriage itself, depriving the migrant spouses of any chance to stay in Korea. The case of Ms. D, a Vietnamese migrant, is one example.Footnote ²⁹ The judges of the case ruled in favor of her Korean husband, stating that Ms. D “had a boyfriend back in Vietnam who is now working in Korea and continued to see him when she came to Korea” and “there was a no sexual relationship between Ms. D and her Korean husband.” Footnote ³⁰ However, the opposite can be true as well; as long as migrant spouses are willing to consummate the marriage (regardless of whether the migrant spouse truly intended to marry and stay married to the citizen spouse), the marriage is real from a legal perspective. For example, judges sided with a Chinese woman, Ms. Z, when she appealed the fraudulent marriage charge. The court's decision was based on Ms. Z's performance as a wife; she “lived in the same house and had a sexual relationship with Mr. K (her husband) several times, visited a relative of Mr. K, twice on holidays.”Footnote ³¹ In August 2009, the Suwon District Court made a similar decision in another case. The court ruled that the marriage was valid because the migrant wife “has lived and had a sexual relationship with the husband for a year after she came to Korea.”Footnote ³²

These cases demonstrate that having sex constitutes an essential feature of the marriage relationship in Korean judges' decisionmaking. From a legal perspective, a marriage cannot be annulled when there is a sexual relationship. Divorce is still a possibility, but the marriage is legally real. Even this seemingly simple fact is complicated by judges arbitrarily drawing lines regarding what constitutes a significant enough sexual relationship between a married couple. A Korean husband filed for an annulment of his marriage to a Filipina migrant when she left him after a month of marriage. The Seoul Family Court rejected the Korean husband's request on the grounds that “[the migrant] had lived a conventional married life for a month, such as traveling together to Jeju Island.”Footnote ³³ The Korean husband appealed the Family Court decision to the Supreme Court. The Supreme Court had a different view. Noting that “given there were only a few sexual intercourses for that one month because the accused [migrant wife] has refused to do so,”Footnote ³⁴ the Supreme Court ruled that the marriage should be annulled; marriage is legally real when there is a “significant” sexual relationship.

2.4 When Judges Overlook Alleged Sexual Imprudence

Our analysis has shown the high sexual moral standards applied to marriage migrants in Korea, sometimes even after those migrants thought they had secured legal status. Further, similar to other migrant-receiving countries, the Korean courts tend to show a great degree of deference to the administrative branch when it comes to immigration and citizenship decisions and rarely overrule the MOJ's decisions.Footnote ³⁵ Indeed, among our sample of thirty-four Seoul Administrative Court cases, only three other marriage migrants (one male and two female), in addition to the case of Ms. Y mentioned at the beginning of this article, had MOJ's rejection overturned in court, and each case is worth reviewing in detail. The analysis of these court cases suggests that justification for deeming marriage migrants “moral” was whimsical and inconsistent. But these three cases did have one factor in common—all three “pardoned” marriage migrants were, at the time of the ruling, in a legal marriage. These cases imply what Reference DublerDubler (2006) calls the “marriage cure”—legal marriage can turn an illicit relationship into a licit one.

The first case is Mr. W, a Joseonjok man whose visa extension request was denied because he was found guilty of fraudulent marriage. But when Mr. W appealed the decision, the judges ruled in favor of Mr. W on three grounds.Footnote ³⁶ First, the judges suspected the validity of the fraudulent marriage charge, given that the fraudulent marriage charge was based only on the confession of Mr. W's (now ex-) wife (a Korean citizen), without cross-checking her statement against that of Mr. W.Footnote ³⁷ Second, the judges found that the marriage had features of a bona fide marriage based on text and phone call records; the judges noted that Mr. W and his ex-wife called and texted each other frequently. The judges also noted that Mr. W paid for his ex-wife's medical bills, a responsibility of a husband. Finally, the judges found Mr. W deserved to stay in Korea because, after he divorced his Korean wife, he re-married a permanent resident (Korean-Chinese) and they had a daughter together. The judges ruled that “raising a child in Korea is a good enough reason to grant a visa extension” (to Mr. W, his current wife and their children). Note that this decision is based on the cultural understanding of the duties of a husband, and as long as a migrant husband performed his duties, his marriage from the Korean judges' perspective, was real. Also note that the decision contradicts the case of Ms. N, where judges did not find a Vietnamese couple raising an ethnically Vietnamese child was a strong enough reason to not rescinding the mother's permanent residency. Given the role of marriage as a citizenship-delineating institution, judges seem to find marriages/families that involve ethnic Koreans worthier of keeping intact than marriages/families consisting solely of nonethnic Koreans. As such, the idioms of nationhood and ethnicity, in conjunction with gendered sexual norms, inform judges' decisions of drawing national boundaries.

Second is the case of Ms. L.Footnote ³⁸ She was found guilty of fraudulent marriage in May 2008 by Busan District Court and she pleaded guilty to the charge. Despite the ruling, Ms. L remained in the same relationship throughout the period and applied for naturalization in July 2009, but the Ministry again rejected her application in March 2012 on the grounds of fraudulent marriage. However, in the following year, 2013, judges ruled in favor of Ms. L, arguing that the marriage was real now, even if they started without a true intention to marry, because “she has lived and maintained a normal marital life with her husband for years.” The judges pardoned her “impure” intention because she was acting like she was married. Similar to Mr. W's case, the case of Ms. L indicates that Korean judges consider a marriage to be real as long as one is willing to perform like a married couple, regardless of the intention at its inception.Footnote ³⁹ Indeed, Korean judges express a rather broad and liberal interpretation of “intention to marry.” As a judge at the Daejeon District Court states, “as long as [they] have the intention to maintain what our society would consider married life, a desire to pursue social and economic upward mobility cannot make the marriage a fraudulent one.”Footnote ⁴⁰ Notice how this view does not assume “love” as a prerequisite and sole reason for marriage. Love has little to do with making a marriage legal or fraudulent in the Korean cultural and legal contexts. Nor does this view treat pragmatic considerations and true love as antithetical to each other. This broader interpretation of intention to marry points to the aspect of marriage as a culturally and legally constructed institution and reflects the cultural understanding of love and marriage in Korea, where arranged marriages and marriages by introduction are not an uncommon practice.Footnote ⁴¹ This interpretation also arises in part because it is ethnic Korean men who are bringing in migrant wives (unlike Western European countries, where citizens from immigrant backgrounds bring in spouses from their home countries) and judges honor men's rights to have a wife and a family.Footnote ⁴² As shown in the case of Ms. L, even if the intention to marry had nothing to do with love and everything to do with gaining Korean citizenship, the judges were willing to forgive her because of her continued performance as a wife.

Even if Korean judges share a similar liberal interpretation of “intention to marry” and value duties and responsibilities over the initial intention of marriage, judges arbitrarily evaluate what constitutes good enough performance. Ms. C, who was charged with fraudulent marriage, like Ms. L, was not as lucky as Ms. L. Ms. C appealed the decision to deny her naturalization to the Seoul Administrative Court, arguing that “[she] has maintained a normal married relationship since 2005 when she married Mr. C., has helped Mr. C with his farming, and has completed the Korean language and cultural understanding programs for marriage migrants.” But the judges of Ms. C case rejected her appeal, citing “Nowhere in the Korean Nationality Law guarantees foreigners the right to acquire Korean citizenship.”Footnote ⁴³

The third and the last is the case of Ms. P, who married a Korean citizen in 1999 and came to Korea in 2000. She applied for naturalization in 2006, but MOJ rejected her application on the grounds of lack of good moral character. Ms. P did not learn of the decision until 2008 and, when she found out, she filed a lawsuit at the Seoul Administrative Court. By the time of the lawsuit, Ms. P was divorced from her first Korean husband and was remarried to another Korean man. MOJ's decision to reject her application cited Ms. P's visa overstay (immigration violation), working at a hostess bar and cohabiting with a married man (adultery). Many plaintiffs' appeals are rejected on the grounds of overstay alone, never mind working at a hostess bar and cohabiting with a married man. But in the case of Ms. P, the judges ruled that the listed factors “do not prove that she has characteristics that are unsuitable to be a future member of our society.” The judges took the view that Ms. P worked at a hostess bar “only for a short period of time to make ends meet” and that she “stayed at home and did not have a job after she entered a common-law marriage [with the married man].”Footnote ⁴⁴ The judges found Ms. P had good enough moral character because “there is no proof that she engaged in prostitution even if she worked at a hostess bar … and she lived with the married man under the assumption that they would get married once the man's divorce became final, and they did get married in March 2009 following his divorce in February 2009.” The judges gave Ms. P the benefit of the doubt that she did not engage in prostitution even while she worked at a hostess bar. They also pardoned Ms. P's affair with a married man because Ms. P married the man with whom she had the affair. In exonerating adultery and cohabitation when it led to a marriage, Korean judges relied on the marriage-criminality binary and constructed “marriage as both the antithesis of immoral sex and as a cure for legal immorality” (Dubler 2006: 764). It is worth noting that the judges decided to mention Ms. P “stayed at home and didn't have a job after she entered a common-law marriage,” leaving her (immoral) hostess work behind. The judge's statement portrays marriage, both literally and figuratively, as a cure for Ms. P.

Our analysis has shown that migrant spouses are subject to stricter sexual moral jurisprudence that relies on the traditional marriage-criminality binary. The review of three “pardoned” cases hints that the amorphous criterion of “good moral character” is unevenly applied to migrants of different marital status, and the greatest scrutiny seemed to be applied to those who are at the margin of conventional marriage: divorced, widowed, separated or child-less.Footnote ⁴⁵ Being married may increase one's chance of being pardoned, but there is no guarantee and whether one gets pardoned seems to depend on judicial whimsy. To bring the case of Ms. X again, the judges ruled Ms. X's solicitation charges were unpardonable “even if she is now married to Mr. X … and takes care of Mr. X's mother.”Footnote ⁴⁶