The Flimsy Philippine Revised Penal Code Poorly Defines Adultery and Concubinage, No Apologies for Writing This

Let me make a point that I'm not a lawyer. If you want legal advice, kindly go to any qualified lawyer. I'm just blogging an ongoing frustration. I might be a man but I think the way the Philippine law defines adultery and concubinage, is rather convoluted. I remember being in PolSci class at the University of San Carlos during Summer ofo 2003. It's been long but I thought about writing the adultery and concubinage law here in the Philippines. 

I referred over to the Respicio & Co. law office for more details, to see where it got wrong:

1. Adultery

1.1 Legal Basis

Article 333 of the Revised Penal Code (RPC) defines and penalizes adultery.

1.2 Definition of Adultery

1. Who can commit adultery?

• A married woman who engages in sexual intercourse with a man not her husband.
• The man (paramour) who has sexual intercourse with a married woman, knowing her to be married.

2. Essence of the Offense

• The act that constitutes adultery is voluntary sexual intercourse between a married woman and a man who is not her husband.
• Unlike concubinage (discussed below), no additional element—such as scandalous conduct, cohabitation, or maintenance of a mistress—is required. A single act of sexual intercourse can be sufficient to constitute adultery.

1.3 Elements of Adultery

To successfully prosecute a charge of adultery under Article 333, the following must be proven:

1. The woman is legally married.
2. She had sexual intercourse with a man who is not her husband.
3. The man with whom she had intercourse knew that she was married (if he is to be held liable as co-principal).
4. The prosecution must present evidence of the specific acts of adultery (the dates and circumstances), not merely a general suspicion.

1.4 Penalty for Adultery

• The penalty under the Revised Penal Code for both guilty parties (the married woman and her paramour) is prisión correccional in its medium and maximum periods (i.e., from 2 years, 4 months, and 1 day to 6 years).

1.5 Who Can File the Case

• Adultery is classified as a private crime. Only the offended spouse (i.e., the legal husband of the adulterous wife) can initiate the criminal action.
• The complaint must include both the wife and the paramour as respondents; failure to include one typically leads to the dismissal of the case unless there is a valid cause for not including the other party (e.g., death or unknown identity).

1.6 Effect on Parental Authority or Property

• A conviction of adultery in itself does not automatically terminate marriage or parental authority.
• However, it can be used as grounds in civil or family law cases (e.g., psychological incapacity claims under the Family Code, or child custody disputes), although each matter is still assessed under its own legal provisions.

2. Concubinage

2.1 Legal Basis

Article 334 of the Revised Penal Code (RPC) defines and penalizes concubinage.

2.2 Definition of Concubinage

1. Who can commit concubinage?

• A married man who commits certain acts with a woman not his wife (the “concubine”).

2. Essence of the Offense

• Concubinage punishes specific scenarios of marital infidelity by the husband that go beyond a single act of sexual intercourse.
• It requires proof of more habitual or scandalous conduct, such as maintaining a mistress in the conjugal home, cohabiting in another place, or engaging in scandalous sexual intercourse.

2.3 Acts Constituting Concubinage

Under Article 334, a married man is liable for concubinage when he:

1. Keeps a mistress in the conjugal dwelling; or
2. Cohabits with a woman not his wife in any other place; or
3. Has sexual intercourse under scandalous circumstances with a woman who is not his wife.

2.4 Elements of Concubinage

To successfully prosecute a charge of concubinage, the following must be proven:

1. The man is legally married.
2. He either:
1. Maintains a mistress in the conjugal dwelling;
2. Cohabits with her in any other place; or
3. Has scandalous sexual intercourse with her.
3. The woman involved (the concubine) must know that the man is married.

2.5 Penalty for Concubinage

• The penalty for the married man (if convicted) is prisión correccional in its minimum and medium periods (i.e., 6 months and 1 day to 4 years and 2 months).
• The penalty for the concubine is destierro (banishment). This means she may be required to stay away from a specified place (usually a certain radius away from where the offended spouse resides or other areas determined by the court).

2.6 Who Can File the Case

• Concubinage is also a private crime. Only the offended spouse (i.e., the legal wife of the husband engaged in concubinage) can initiate the criminal action.
• As with adultery, the complaint must ordinarily include both the husband and the concubine.

The question of balance

Why are we making the adultery and concubinage laws rather complicated? Sure, we already have the Violence Against Women and their Children Act. However, one must look at laws that certain provisions don't clash with each other. I was looking at this part where a woman can technically sue a man for infidelity:

C. "Psychological violence" refers to acts or omissions causing or likely to cause mental or emotional suffering of the victim such as but not limited to intimidation, harassment, stalking, damage to property, public ridicule or humiliation, repeated verbal abuse and mental infidelity. It includes causing or allowing the victim to witness the physical, sexual or psychological abuse of a member of the family to which the victim belongs, or to witness pornography in any form or to witness abusive injury to pets or to unlawful or unwanted deprivation of the right to custody and/or visitation of common children.

If I'm not wrong, this means that technically, any act of cheating done by the cheating spouse, with activities like posting their pictures together on media like Facebook, tagging each other to be "in a relationship" or even married on Facebook, and harassing the legal wife. These fall under psychological violence. 

If we must look into this Merriam-Webster's Dictionary definition of adultery:

: voluntary sexual intercourse between a married person and someone other than that person's current spouse

When a married man has sexual intercourse with any woman not his wife, regardless if she was another man's wife or a single woman, Merriam-Webster's Dictionary doesn't say, "It only happens when a woman has sex with someone other than her husband." It states that any act of extramarital sex is adultery. It doesn't matter who was the guilty party. 

This is where the claim for women's rights collapses with the current adultery/concubinage defintions, in these examples:

1. Why does the husband have the right to sue his wife for extramarital sex with another man, and punish that single man, but what happened to the woman's rights to sue her husband and punish that single woman? 
2. In the case of the woman suing her husband for extramarital sex, the problem is if her husband is cheating on her with another man's wife, the only right to sue falls under the other woman's husband. The only person who can sue that idiot husband for adultery is the other woman's husband, which "lessens" the cheating husband's liability to the courts. 
   
3. In the case of a man suing his wife for extramarital sex, what if the wife's paramour was also married to another woman? Sure, the husband can sue for extramarital sex but what about the wife of the paramour? She could still sue for psychological distress. It gives that third party some "leeway" because while he got sued for adultery by his lover's husband, his wife can only file for psychological damages when technically, both his wife and his lover's husband are victims of adultery.  

Maybe, it's time to apply a new definition of adultery into the Revised Penal Code

Theologically, adultery tends to be defined as any act of infidelity, even if sexual intercourse was absent. For example, in Protestant churches such as Baptists, one ground a pastor can be disqualified from the office is infidelity. Many Protestant churches use the term adultery as groups to remove a pastor for cheating on his wife, even if he didn't have sex with the mistress. It's presumably because the word adultery got its meaning from adulterare, which means "to corrupt, to falsify, to debase, or to make impure by mixing with something foreign."Adulterated means that impurity was edded into the mixture. When a man has sex with a single woman when he's married, it's still adultery. 

I'm not advocating for a theocracy. However, let me be straight that we might need to realize that if we're going to get serious with how we define adultery. Instead of relying on the psychological violence provision, we may want to measure adultery by degrees. These degrees are both non-sexual adultery (any form of romantic involvement with another person aside from your spouse) vs. sexual adultery (when sexual intercourse actually takes place, resulting in spurious heirs like a father raising a child passed off as his, or a father fathering children out of wedlock, destroying the estate's purity). 

We can start off with these revisions for the adultery/concubinage law. I would like to defne the new provision with two types of adultery. The first adultery is non-sexual adultery, which are acts like going on a date, holding hands, getting intimate, living in together as husband and wife without marriage (which adds to concubinage charges) are involved. The second act is sexual adultery, when sexual intercourse is already involved, leading to even bigger charges than non-sexual adultery.

In this new definition, this law should go like this:

1. For the case of adultery, as long as any form of infidelity is involved, a woman can charge her husband for adultery as much as a man can charge his wife for adultery. Sexual intercourse doesn't have to be present to lead to an adultery charge, although the act is a prerequisite to go from non-sexual adultery to sexual adultery.
2. In the case of concubinage, both the man and the woman should be charged as well. In this case, I feel exiling the mistress is too mild while the male party is in jail. Based on concubinage charges, my proposal is that these are the grounds that should make exile "too mild". If the woman herself was already consciously aware (or even worsened by common knowledge of who the real wife is), using banishment is too mild. 

This means, under my new provision, this creates scenarios, such as:

1. Married man, single woman, the wife can charge for adultery. However, the element of guilt should be based on the single woman if she knew her boyfriend was a married man or if she discovered during the relationship, and still persisted anyway, than leave him before trouble brews. In the case of concubinage, both the married man and the willing single woman who are living in together should face jail time for such offenses.
2. Married woman, single man, the husband can charge for adultery. This also applies if the man was a willing accomplice or not, like the first example. Concubinage charges like the first scenario should still apply. 
3. In the case of a married man to a married woman scenario, this should create multiple jeopardy because:
• The first party, where the married man's wife can now sue for adultery. The second party, the married woman's husband, can now also sue the married man for adultery. This would compound the punishment of the man.
• The second party, the married woman's husband, sues her and her boyfriend for adultery. She's also sued for adultery by the wife of a married man. This would be a jeopardy not just for her but also for her boyfriend. 
• In the case of concubinage here, it should add to separate charges, which adds up to the number of years in prison. The third-party woman being banished is too mild, given that she wrecked her own marriage and another person's marriage. Banishing her means she could still be sipping piña colada somewhere, and might ruin someone's life next. Why give the witch a "generous free pass" when she should reflect on her sins in a women's prison?

Right now, we need to consider that this is the principle of the Broken Windows Theory. It's the idea that if small problems are ignored, big ones will follow. If the law starts actually tackling appropriate offenses for non-sexual adultery, then bigger problems like sexual adultery will be much less rampant.