UNIVERSITY OF THE EAST

COLLEGE OF LAW

A SINGLE LAW FOR CRIMINAL MARITAL INFIDELITY

(IN LIEU OF ADULTERY AND CONCUBINAGE)

A Dissertation Proposal submitted to the

Faculty of the Graduate School of the
University of the East

In Partial Fulfillment of the

Requirements for the Degree of
Juris Doctor
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AHMED L. SANGCOPAN
February 4, 2015

CHAPTER I

INTRODUCTION

BACKGROUND OF THE STUDY

Our present laws on adultery and concubinage under the Revised Penal Code both constitute

marital infidelity, but these are deemed as discriminatory and nebulous. While both aim to punish

marital infidelity of the spouses, there is higher burden put on wives than on husbands. This disparity in

the treatment of the law is seen in the evidentiary requirement for the two crimes and there is a huge

underlying difference if the infidelity was committed by the male or female spouse. For the wife,

adultery means one act of sexual intercourse provable through circumstantial evidence while for the

husband, evidentiary requirement for concubinage is higher by proving that the sexual intercourse with a

woman who is not his wife is under scandalous circumstances; that he is keeping another woman in the

conjugal home; or that he is cohabiting with her in another dwelling. Our present law also imposes

higher penalty to married women who commit infidelity as compared to married men. The usual

reasoning for the distinction is that the infidelity of the wife can result in introducing alien blood into the

family; that an illegitimate child could be passed off as the husband’s and he will end up supporting and
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giving his name to the said child. It is also claimed that this probability does not arise if it is the husband

who commits concubinage.

It should be noted that as private crimes, our present law on adultery and concubinage regards

the privacy of the offended party as more important than the disturbance to the order of society, as it

gives the offended party the preference whether or not to sue. The moment the offended party has

initiated the criminal complaint, the public prosecutor will take over and continue with prosecution of

the offender. The moment the prosecution starts, the crime has already become public and it is beyond

the offended party to pardon the offender. But the RPC provision on adultery has been used or mostly

abused by many husbands against their wives to threaten, torture, harass or compel the latter to yield to

his demands. On the other hand, the law on concubinage renders it extremely difficult for the wives to

prove the three elements in the Courts of law which results to more dismissals of cases filed. 1

1
http://www.pcw.gov.ph/wpla/marital-infidelity-law
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There seems to be some sort of “credibility gap” between what modern society

considers perfectly permissible sexual behaviour and what the law says is forbidden. Sexual

behaviour within or without the marital union is not spared. With the ever-increasing clamour

for liberalizing sex codes and practices, it is not surprising that there should be a continuing and

spirited debate between morality and the criminal law.2

Alongside with the creation of the relationship of marriage is the crime of adultery.

Adultery is a crime under a penal code promulgated as early as 1932 based on the Spanish

Penal Code of 1870 which, in turn, is based on French Penal Code of 1810. This makes the penal

code of the Philippines more than 150 years old. 3 Yet fornication is not punishable unless the

circumstances of its commission amount to concubinage.

In view of the modern generation, science and technology, and the ideology of

democratization as introduced by the influence of the modern media including the different

forms of social media, the new ideas on sexual relations are gradually inculcated to the

perception of the people. Thus, it is important to re-examine the Philippine penal provisions on

adultery and establish the probability and necessity of the imposition of a single law for criminal

marital infidelity in lieu of adultery and concubinage.

2
Bartolome S. Carale, Criminal Adultery and Fornication in the Philippines: A Re-Examination, Philippine Law Journal, vol. 45 No.
3, July 1970

3
Aquino, The Revised Penal Code of the Philippines 1-2. (1961).
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The constitution, Article 11, Section 14, mandates the state to ensure the fundamental

equality before the law of women and men. This requires the state to apply the law regardless

of one’s gender.

Under the Penal Code, Article 333, adultery may only be committed by a married

woman and by the man who shall have sexual intercourse with her. On the other hand, under

the same law, Article 334, concubinage may be committed by a husband only under certain

conditions which are difficult to prove. These provisions have allowed other married persons

not falling within the coverage to perpetuate marital infidelity but remaining unscathed from

the application of law.

SIGNIFICANCE OF THE STUDY

The researcher believes that the study is significant for two (2) main reasons: First, it will

introduce changes in our Revised Penal Code that signifies that our laws are dynamic and

conform to what is just in our evolving society; and Second, it will promote gender equality as

regards criminal marital infidelity.

STATEMENT OF THE PROBLEM

The researcher initiates to study the imposition of a single law for criminal marital

infidelity in lieu of adultery and concubinage by answering the following guide questions, to wit:

1. What is the prevailing concept in the Philippines as regards marital infidelity?

2. What is the Constitutional basis for imposing a single law for criminal marital

infidelity in lieu of adultery and concubinage?

3. What is the practicability of imposing a single law for criminal marital infidelity?
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SCOPE AND DELIMITATIONS

The study is essentially limited to understanding the crimes of adultery and concubinage

and the Constitutionality and practicability of imposing a single law in lieu of the said crimes. As

regards the proper law to be prescribed, the researcher reserves such responsibility to the

Congress.

DEFINITION OF TERMS

For a better appreciation and understanding of this study, the following terms are

defined, to wit:

Adultery – It is committed by any married woman who shall have sexual intercourse

with a man not her husband and by the man who has carnal knowledge of her, knowing her to

be married, even if the marriage is subsequently declared void. 4

Concubinage – Any husband who shall keep a mistress in the conjugal dwelling, or, shall

have sexual intercourse, under exceptional circumstances, with a woman who is not his wife, or

shall cohabit with her in any other place.5

Cohabit- to dwell together, in the manner of husband and wife, for some period of time, as

distinguished from occasional transient interviews for unlawful intercourse.

Conjugal dwelling- the home of the husband and wife even if the wife happens to be

temporarily absent on any account.

4
Book II, Title Eleven, Article 333, Revised Penal Code.
5
Book II, Title Eleven, Article 334, Revised Penal Code.
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Destierro – Any person sentenced to destierro shall not be permitted to enter the place

or places designated in the sentence, nor within the radius therein specified, which shall be not

more than 250 and not less than 25 kilometers from the place designated. 6

Marital Infidelity- a violation or breach of good faith and confidence by one or both spouses

to the matrimonial vows. It is also a major spousal pressure that eventually causes the breakdown of

marriage as a foundation of the family.

Prision Correccional – It is a penalty that ranges from six (6) months and one (1) day to

six (6) years.7

Prision Correccional in its minimum and medium period – It is a penalty that ranges

from 6 months and 1 day to 4 years and 2 months.8

Prision Correccional in its medium and maximum periods – It is a penalty that ranges

from 2 years, 4 months and 1 day to 6 years.9

Paramour- term used to describe a lover but has no legal relationship with the person.

Scandal- Any reprehensible word or deed that offends public conscience, redounds to the

detriment of the feelings of honest persons, and gives occasion to the neighbor’s spiritual damage or

ruin.

6
Book I, Title Three, Chapter V, Art. 87, Revised Penal Code.

7
Book I, Title Three, Chapter III, Article 27, Revised Penal Code.
8
JBL Reyes, The Revised Penal Code, 1075. (2008).
9
Id., note 5.
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CHAPTER II

REVIEW OF RELATED LITERATURE

NATURE AND CHARACTERISTICS OF MARITAL INFIDELITY

Under the Philippine Revised Penal Code, there is no such crime as marital or sexual

infidelity. Rather, sexual infidelity is regarded as one of the grounds for a Petition for Legal

Separation.10 Also under the Philippine laws, there is no precise definition of sexual infidelity but

our jurisdiction recognizes that this can include adultery and concubinage, which are

denominated as Crimes against Chastity. 11

NATURE AND CHARACTERISTICS OF ADULTERY

Adultery is committed by any married woman who shall have sexual intercourse with a

man not her husband and by the man who has carnal knowledge of her, knowing her to be

married, even if the marriage is subsequently declared void. It shall be punished by prision

correccional in its medium and maximum periods.12

The elements of the crime of adultery are:

1. The woman is married;

2. That she has sexual intercourse with a man not her husband; and

3. That as regards the man with whom she has sexual intercourse, he must know her to

be married.

10
Article 55 (8), Family Code of the Philippines.

11
Book II, Title Eleven, Revised Penal Code.

12
Id., note 3.
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As regards the first element, the legitimacy of the marriage relation between the

offended husband and the defendant wife is one of the circumstances which must necessarily

attend the crime of adultery. Once it is shown that a man and a woman lived as husband and

wife, and none of the parties denied and contradicted the allegation in the complaint, the

presumption of their being married must be admitted as a fact. 13

However, in view of the phrase “Even if the marriage be subsequently declared void”, it is

not necessary that there be a valid marriage between the offended husband and the guilty

woman. There is adultery, even if the marriage of the guilty woman with the offended husband

is subsequently declared void.14 The rationale is that at no time does the bond of matrimony

contain a defect which by itself is sufficient to dissolve the union. Until the marriage is declared

to be null and void by competent authority in a final judgment, the offense to the vows taken,

and the attack on the family exists – the adultery reunites the essential conditions required for

its punishment.15

As regards the second element, direct proof of carnal knowledge is not necessary to

sustain a conviction for adultery. The legal tenet has been and still is that circumstantial and

corroborative evidence such as will lead the guarded discretion of a reasonable and just man to

the conclusion that the criminal act of adultery has been committed, will suffice to bring about

a conviction of the crime.

13
U.S. v. Villafuerte, 4 Phil. 476.

14
Supra.

15
U.S. v. Mata, 18 Phil. 490.
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The Supreme Court held in one case 16 that the crime of adultery is an instantaneous

crime which is consummated and completed at the moment of the carnal union. Each sexual

intercourse constitutes a crime of adultery. Even if the husband should pardon his adulterous

wife, such pardon would not exempt the wife and her paramour from criminal liability for

adulterous acts committed after the pardon has been granted, because the pardon refers to

previous and not to subsequent adulterous acts. Moreover, the gist of the crime of adultery is

the danger of introducing spurious heirs into the family, where the rights of the real heirs may

be impaired and a man may be charged with the maintenance of a family not his own. 17

The essence of adultery is the violation of the marital vow. 18

NATURE AND CHARACTERISTICS OF CONCUBINAGE

Concubinage is committed by any husband who shall keep a mistress in the conjugal

dwelling, or, shall have sexual intercourse, under exceptional 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. The concubine shall suffer the penalty of

destierro.19

The elements of the crime of concubinage are:

1. That the man must be married.

16
People v. Zapata and Bondoc, 88 Phil. 688

17
U.S. v. Mata, 18 Phil. 490.

18
Id., p. 901.

19
Id., note 4.
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2. That he committed any of the following acts:

a. Keeping a mistress in the conjugal dwelling;

b. Having sexual intercourse under scandalous circumstances with a woman

who is not his wife;

c. Cohabiting with her in any other place.

3. That as regards the woman, she must know him to be married.

The offenders are the married man and the woman who knows him to be married prior

to the commission of the crime. The former is liable for concubinage only when he does any of

the three acts mentioned. If his sexual relations with a woman not his wife is not any one of

them, he is not criminally liable.20

As regards the first way of committing the crime, it is necessary that the woman is taken

21
by the accused into the conjugal dwelling as a concubine in order to be regarded as a

mistress. “Scandalous circumstances” are not necessary to make a husband guilty of

concubinage by keeping a mistress in the conjugal dwelling. As to the second way of committing

it, it is only when the mistress is kept elsewhere (outside of the conjugal dwelling) that

“scandalous circumstances” become an element of the crime.22 Lastly, as regards the third way,

“cohabit” means to dwell together, in the manner of husband and wife, for some period of time,

as distinguished from occasional, transient interviews for unlawful intercourse. The offense is

not a single act of adultery; it is cohabiting in a state of adultery which may be a week, a month,

20
People v. Santos, et al., C.A., 45 O.G. 2116.

21
People v. Bacon, C.A., 44 O.G. 2760.

22
U.S. v. Macabagbag, et. al., 31 Phil. 257.
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23
a year or longer. Thus, there is no concubinage if a married man is surprised in the act of

sexual intercourse with a woman not his wife in a hotel.

Like adultery, concubinage is a violation of the marital vow. However, adultery is more

severely punished than concubinage because adultery makes possible the introduction of

another man’s blood into the family so that the offended husband may have another man’s son

bearing his (husband’s) name and receiving support from him.24

PUNISHMENT

1. Adultery

Adultery shall be punished by prision correccional in its medium and maximum periods. If the

person guilty of adultery 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.

2. 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. The

concubine shall suffer the penalty of destierro.

DEGREE OF EVIDENCE

23
People v. Pitoc, et. al., 43 Phil. 760.

24
Id., p. 908.
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In prosecuting Adultery, the offended husband must provide circumstantial evidence that the

wife has committed an act of sexual intercourse with another man.

However, the evidence required in prosecuting Concubinage is higher. To prosecute the

offending husband for the crime of Concubinage, one of the three circumstances must be proven:

1. the offending husband had sexual intercourse with a woman who is not his wife is under scandalous

circumstances;

2. the offending husband is keeping another woman in the conjugal home; or

3. the offending husband is cohabiting with another women in another dwelling.

Since a married woman can easily be convicted of Adultery for a single act of sexual intercourse,

many of the offended husbands have found a way to take advantage of the infidelity committed by their

wife. Instead of filing a criminal action, the offended husbands would either harass or threaten their wife

in order for their demands to be complied with.

What is more appalling is that the offended husbands will often use their children and their well-

being to get back at their wives who erred against them. The husbands would either threaten their wives

with regard to their children’s custody or the husbands will turn their children against their mothers.

With regard to the offended wives, it seems highly impossible for them to have their husbands

prosecuted for Concubinage due to the required circumstances provided by law.

The following matters must be emphasized:

1. there may be a separate trial for the man and the woman;
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2. the man may be acquitted if he did not know the woman is married;

3. if the man is married, he may also be liable for Concubinage and the married woman man may also

be charged as a concubine.25

DISCUSSION OF THE PRESENT SITUATION

At present:

1. There is a higher penalty imposed on married women who commit infidelity as compared to married

men;

2. A married woman can be convicted of adultery for a single act of sexual intercourse with a man not

her husband; and

3. A wife is liable for Adultery under Article 333 of the Revised Penal Code if the following elements are

present:

a. That the woman is married (even if marriage is subsequently declared void);

b. That she has sexual intercourse with a man not her husband;

25
https://www.change.org/p/the-house-of-representatives-the-senate-of-the-philippines-and-president-
benigno-aquino-iii-petition-for-the-enactment-of-house-bill-no-4033-into-law-8
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c. That as regards the man with whom she has sexual intercourses, he must know her to be

married.

To quote:

“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 the man who has carnal knowledge of her

knowing her to be married, even if the marriage be subsequently declared void.

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

If the person guilty of adultery 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.”

4. A husband is liable for Concubinage under Article 334 of the Revised Penal Code if he commits any of

the following act as specified:

a. keeping a mistress in the conjugal dwelling;

b. having sexual intercourse under scandalous circumstances with a woman who is not his wife;

or

c. Cohabiting with her in any other place.

To quote:
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“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.

The concubine shall suffer the penalty of destierro.”

Adultery, as previously discussed, is committed by any married woman who shall have sexual

intercourse with a man not her husband and by the man who has carnal knowledge of her knowing her

to be married, even if the marriage be subsequently declared void.

For Adultery, direct proof of carnal knowledge is not necessary. Circumstantial evidence is

sufficient to prove the crime (i.e. love letters signed by the paramour, photos showing intimate relations,

testimony of witnesses).

On the other hand, the husband will be liable for Concubinage if he 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. According to this definition, a married man is

not liable for Concubinage for mere sexual relations with a woman not his wife. A man would only be

guilty of Concubinage when he has sexual intercourse with another woman under scandalous

circumstances.

On a general perspective, these crimes punish both a married man and woman who engage in a

sexual relationship towards others not their own spouse. The very essence of the two crimes is the

violation of marital vows. Both crimes may result in illegitimate offspring being brought into the family.
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As such, there is no definite and clear reason why such acts must be distinctly specified and named as

Adultery and Concubinage and classify each as a crime done only by a woman and a man, respectively.

WHAT ARE THE EXPERIENCES OF OTHER COUNTRIES IN ADDRESSING THE ISSUE?

In Canada, the crime of adultery applies to both a man and a woman when either of them has

sex with someone outside the marriage. Adultery is also a crime in Korea punishable by up to two (2)

years in jail. In many countries such as the United States, Russia, Canada, Israel and Poland, adultery

represents as ground for divorce. Iran, Pakistan, Saudi Arabia and Yemen punish adultery by death

however, there have been no recent executions unless other crimes were involved .

WHO CAN FILE THE ACTION FOR ADULTERY OR CONCUBINAGE?

Only the offended spouse can legally file the complaint for adultery or concubinage. The

marital status must be present at the time of filing the criminal action. In other words, the

offended spouse must still be married to the accused spouse at the time of the filing of the

complaint.

WHO MUST BE PROSECUTED?

The offended party cannot institute the criminal charge without including both guilty

parties (the offending spouse and the paramour), if both are alive.

WHAT IS THE EFFECT OF CONSENT OR PARDON BY THE OFFENDED SPOUSE?

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The criminal charge cannot prosper if the offended spouse has consented to the offense

or pardoned the offenders. Pardon can be express or implied. An example of express pardon is

when the offended party in writing or in an affidavit asserts that he or she is pardoning his or

her erring spouse and paramour for their act. There is implied pardon when the offended party

continued to live with his spouse even after the commission of the offense. Pardon must come

before the institution of the criminal action and both offenders must be pardoned by the

offended party.

THE REVISED PENAL CODE ARTICLES 333 AND 334

Articles 333 and 334 define adultery and concubinage. According to these articles, a wife may be

found guilty of adultery if she has sexual relations with a man not her husband. In contrast, a husband

would only be guilty of concubinage by meeting certain specific conditions. The punishment for adultery

is heavier than concubinage.

The law implies that husbands can get away with infidelity so long as they don’t meet certain conditions,

making it discriminatory against women. Various women’s groups, notably Gabriela and PCW, have called

for the article’s revision to make adultery clauses and punishment applicable to both sexes.

So far, the article has not been revised, and lawyers have had to rely on charging unfaithful husbands

with psychological violence under the Anti-Violence against Women and their Children Act of 2004.

CHAPTER III
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METHODOLOGY

The study utilized the qualitative research by conducting research of pertinent laws and

jurisprudence to arrived at the result of the study. The pertinent provisions of the 1987

Constitution as well as other provisions of Civil and Criminal codes of the Philippines.

CHAPTER IV

ANALYSIS

The researcher takes caveat that this is an academic exercise. As it is, the Constitution

mandates that the State shall ensure the fundamental equality before the law of women and

men.26 This is also in accordance with the international mandate that the Philippine law shall

prohibit any discrimination and shall guarantee to all persons equal and effective protection

against discrimination on any ground such as social origin, birth or status. 27 However, the

provisions of the Revised Penal Code on Adultery and Concubinage provide for a great disparity

on the treatment of the sexual infidelity of the husband, on one hand, and the wife, on the

other hand; and in effect neglecting the said mandates based on the following:

First, as regards the commission of the crime of adultery, a single intercourse by the wife

of a man not her husband, regardless of how privately or discreetly done, would suffice to

convict her. As the Supreme Court reasoned out, adultery is a crime of result and not of

tendency.28 However, the husband might have sexual intercourse with another woman not his

26
Section 14, Article II, 1987 Constitution.

27
Article 26, International Covenant on Civil and Political Rights.

28
Id., note 15.
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wife and not be guilty of concubinage if it was done privately, voluntarily on the part of the

husband’s paramour, and not in any of the three ways enumerated by the Code;

Second, as regards the penalty imposed, adultery is more severely punished than

concubinage. Though the justification for this strict liability of the married woman is the danger

of introducing spurious heirs into a family, its validity is now open to question because of the

availability of the “pill” and other contraceptives; 29 and

Third, with the kind of evidence required in adultery, the married woman may be placed

in an untoward situation. The paramour may have no knowledge of her being married but the

married woman may be convicted on the uncorroborated testimony of the innocent paramour. 30

Nevertheless, a view to the penal systems of other countries may give us some insights

on the practicability of imposing a single law in lieu of adultery and concubinage. Adultery is

excluded from the category of crimes in England, Uruguay and Japan, among others. In the

31
German and Swiss Codes, it is punished only if because of it, the marriage is dissolved. Also, in

most jurisdictions in the United States, adultery is committed by either the man or the woman,

or both. It is enough that there be sexual intercourse between two persons either of whom is

married to a third person, provided the other has knowledge of such marriage. 32 Moreover, in

New York, the Commission on Revision of the Criminal Law recommended that the offense of
29
Id., note 1.

30
Supra, citing N.Y. Rev. P.C., Sec. 255.30.

31
Id., note 1.

32
Supra.
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adultery be omitted from the Revised Penal Law on the ground, as perceived by the majority of

the commission, that the basic problem is one of private rather than public morals that its

inclusion neither protects the public nor acts as a deterrent. 33 Lastly, the Model Penal Code of

the American Law Institute does not penalize the sexual sins, including fornication, adultery,

sodomy and other illicit sexual activities.

CHAPTER IV

SUMMARY, CONCLUSION AND RECOMMENDATION

SUMMARY

The study is principally based on the Constitutional and International Law mandates on

the equality of men and women and the prohibition of any kind of discrimination.

The Philippine law does not recognize marital or sexual infidelity as a crime but as a

ground for legal separation, which includes Adultery and Concubinage. The latter are crimes

defined in the Revised Penal Code under the Crimes against Chastity, which involve breach of

the marital vows. The former crime is committed by a married wife who shall have sexual

intercourse with a man not her husband and a man who knows her to be married; while the

latter is regarded as a crime only if committed by a married man in any of the three ways

33
Supra.
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provided by the Code. Also, the former is punished severely than the latter. These great

disparities of the Revised Penal Code with the said mandates are the main thrust of the study.

CONCLUSION

The foregoing discussions underscore that the imposition of a single law for criminal

marital infidelity in lieu of the provisions of the Revised Penal Code on Adultery and

Concubinage is possible because of the needs of the modern society, practicable because it has

been adopted in other countries, and essential to the development of our laws in the sight of

the international community.

RECOMMENDATION

The researcher submits that the subject matter is equally important to the present and

future generations as the relationship of marriage is inevitable to the humanity. However, due

to lack of material time and availability of resources on the subject matter, the researcher highly

recommends an intensive study including the proper penalty to be imposed especially because

the subject is a proposed bill in the Philippine Congress.