Hilario, Pamela Denise October 10, 2015 Legal Research – Atty. Alcobilla

One of the most significant issues present now in society is the fundamental

equality between men and women. Corollary to this issue, it is mandated by the law that

that there should be a substantial distinction between men and women before they can be

given different rights. However, in our laws, it appears that several provisions are still

favorable to men without appropriate justification and clear, substantial distinction.

The Philippine Constitution provides in Article III, Section 11:

Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws

Although numerous laws in the Philippines continue to serve the purpose of

promoting the rights of its individuals, several laws still remain to be indirectly

discriminatory to others. One of these said laws is the Revised Penal Code.

In the Philippine context, infidelity is classified depending on the gender of the

offending party. Under the Crimes Against Chastity of the Revised Penal Code, Article

333 , also known as adultery, states that,

Art. 333. Who are guilty of Adultery. — Adultery is committed by any married

woman who shall have sexual intercourse with a man not her husband and by

1 CONST. art. III, sec 1.

the man who has carnal knowledge of her knowing her to be married, even if the

marriage be subsequently declared void.

Thus, adultery is committed, under the distinction of the Revised Penal Code, by a

married woman. Furthermore, Article 334 of the Revised Penal Code, states that,

Art. 334. Concubinage. — Any husband who shall keep a mistress in the conjugal

dwelling, or shall have sexual intercourse, under scandalous circumstances, with a

woman who is not his wife, or shall cohabit with her in any other place, shall be

punished by prision correccional in its minimum and medium periods.

It can be discerned that before the fulfillment of the actual crime, both individuals

must be married. For a woman, on the first hand, she must have carnal knowledge with a

man who has knowledge of her being married. For a man, on the other hand, to be

penalized with that of concubinage, he must have fulfilled at least one (1) of the three (3)

acts expressly stated in the Revised Penal Code.

Adultery shall be punished by prision correccional in its medium and maximum

periods , while concubinage shall be punished by prision correccional in its minimum and

medium periods.

The commission of adultery, as compared to that of concubinage, based on the

intention of its framers, is perceived to be heavier. This is because of the possible

introduction of illegitimate children other than natural children, also known as spurious

children, as mentioned by the Constitutional Commission. Following the provisions

stated in the Articles 333 and 334, an inference can be drawn that a single instance of

sexual intercourse by a woman with a man other than her husband already amounts to a

violation of the Revised Penal Code. There is a presence of this in the law because of the

perception that when a husband commits infidelity, there is no danger since the bearing

of the child of the woman with whom the husband has committed the imprudence with

will not disturb the integrity and harmony of the family. However, it should be noted that

marital infidelity, no matter how committed and by whom, almost all cases of infidelity

all lead to disharmony within the family. More so, there is even a larger possibility of a

husband fathering a child of another woman. An illegitimate child, although not

introduced to the conjugal home of the spouses, in any case, also causes prejudice to the

legitimate heirs. The said child also shares in the inheritance of his father, to the prejudice

of the legitimate children, who would have been the only heirs if not for the illegitimate

child or children of their father. With this, the differential treatment is perceived as no

longer germane to the purpose of the law.

What these circumstances entail is that mere sexual intercourse is not sufficient to

have the husband be convicted of concubinage. It has to be carnal knowledge under

scandalous circumstances, which is a requisite not present in the crime of adultery.

Additionally, even when the wife surprises her husband in bed with another woman, there

shall still be no conviction on the part of the husband for the reason that the wife is a lone

witness to the act, the same could not have produced scandal under the law. 2 However, it

is a different scenario when it is the wife who had intercourse with another man. The

2 People V. Hilao, 52 OG 904 (1951)

sexual act, no matter how discretely done, already constitutes the crime of adultery. Even

if there is no direct evidence to the crime, mere circumstantial evidence is already

necessary to sustain her conviction.

The last element of concubinage is if the husband shall cohabit with his concubine

in a place other than the dwelling of the husband and wife. This means that if the two

parties, i.e. the husband and the concubine, live together, deport themselves as husband

and wife in a period of time that is not merely occasional or transient, their actions would

be considered as acts that constitute as Concubinage.

If the purpose of the distinction lies solely on the prevention of the possible

introduction of the wife of a spurious heir and claiming the same to be that of her

husband’s, then the distinction made is germane to the purpose of the law. By means of

the fact that infidelity on part of the husband is also penalized, nevertheless, gives the

implication that the real intention of the law is to penalize marital infidelity. So that

being the case, despite how committed and by whom, such an infidelity must be dealt

with similarly given the fact that both are violations of the law.

In response with the clamor of women worldwide for equality with men, and the

showing that women are not inferior to men it is believed that the difference in the

treatment of marital infidelity as a crime should be also be equalized.

Having said that, it is recommended by the researches for the legislature to enact

a law that shall remove the distinction as to the crimes of adultery and concubinage with

the crime of marital infidelity that would apply equally to both genders. The law should

not distinguish between the infidelity of a man from the infidelity of a woman. After all,

the marriage vow of the wife is no different than that of the husband’s, and the

unfaithfulness of the wife does not betray the husband any less than in instances where

the infidel one is the husband.

It is of considerable importance that the same penalties are to be

imposed to offending parties for the same gravity of offense committed. In lieu of the

pre-existing laws governing the crime of infidelity, enacting a law that will treat all

crimes of adultery and concubinage in the same degree in terms of penance seems to be

the best possible solution since both crimes constitute to only one criminal act, which is

marital infidelity. However, the offended party shall be barred from instituting a criminal

prosecution if said party is also guilty of committing the offense.

In order to address the inequality in the law, it is recommended that Revised

Penal Code provision on adultery and concubinage be merged to punish marital

infidelity as one. Hence, the provision should be amended to read as follows:

Art. 333. Who are guilty of Marital Infidelity—Marital Infidelity is committed by

any legally married person who shall have sexual intercourse with another person not

his/her spouse, and by the person who has sexual intercourse with the married person,

knowing that person to be legally married, even if the marriage be subsequently declared

void.

Marital Infidelity shall be punished by prision correccional in its medium and

maximum periods.

If the person guilty of marital infidelity committed this offense while being

abandoned without justification by the offended spouse, the penalty next lower in degree

than that provided in the next preceding paragraph shall be imposed.

While this proposal does not give a guarantee that the spouses will remain

faithful to their marital vows. Through leveling the grounds and penalties for marital

infidelity, women shall be given the option to file criminal charges against a

philandering husband. Although this option has previously existed in our present laws,

the purpose of which is still nugatory given the nature and the degree of burden needed

to file and prove the crime of concubinage.

Abolition of the double standards in the crimes of adultery and concubinage will

be instrumental in ensuring equality before the law between women and men. Most

importantly, it will also protect the rights of legally married women.