A Review on Responsiveness of the Philippine Infidelity Laws to the Contemporary Life

Abstract In this paper, the responsiveness of infidelity laws in the Philippines to the contemporary life was reviewed. Infidelity laws as that of adultery and concubinage were scrutinized and analyzed for the establishment of any possible revisions or amendments of these existing legal provisions. Advancement and promotion of equality between men and women as provided in the 1987 Philippine Constitution and UN initiatives on womens empowerment were the ultimate aim of the researchers. The researchers seek to eradicate and eliminate gender bias in laws penalizing the crimes of adultery and concubinage, thus advocating gender equality. Results of this research provide suggested amendments in the infidelity laws of the Philippines that could possibly prod the competent authority for certain actions. I. INTRODUCTION The Problem and its Setting "The State recognizes the role of women in nation building and shall ensure the fundamental equality before the law of women and men." (Sec. 14, Art. II, 1987 Constitution) Studies have shown that political positions continue to be held mostly by men. Last 2007 in the Philippine local government units, there were only 274 female mayors (17.19%) while there were 1,320 male mayors (82.81%) and 18 female governors (21.95%) compared to 62 male governors (78.05%). In the legislature, a study by the Inter-Parliamentary Union (IPU) as of May 31 2012, an international organization of members of parliament, shows that in the Philippines, there

are only 65 women (22.9%) in the House of Representatives out of the 284 representatives and there are only 3 women out of the 23 Senators (13.0%) in the present Congress. Its no surprise then that we have laws that are crafted from the perspective of men. According to Senator Pia Cayetano, several laws containing distinctions, exclusions and restrictions against women persist despite great advancements in the recognition of womens rights in recent decades. These laws are trapped in a time warp, back in an archaic age when chauvinist thinking dominated society and women were considered inferior to men. We need to strip our existing laws of all discriminatory provisions against women to ensure that their Constitutionally-guaranteed rights are upheld and to allow them to actively participate and contribute to our national development. But times have changed and so laws like these must also be revised, accordingly. As what was mandated under Section 12 of the Magna Carta of Women (RA 9710), which Sen. Cayetano principally authored, and which was approved on August 14, 2009 and took effect after fifteen (15) days of publication in at least two (2) newspapers of general circulation, The State shall take steps to review and, when necessary, amend and/or repeal existing laws that are discriminatory to women within three (3) years from the effectivity of this Act. Citing a classic example, Cayetano said that, the grounds under the Revised Penal Code (RPC) are more difficult when convicting a married man for concubinage compared to a married woman for adultery. Furthermore, Section 14, Article II of the 1987 Philippine Constitution, which the researchers cited earlier, has not been fully upheld despite the provisions of the Family Code (EO 209, as amended) which replaced "adultery on the part of the wife and concubinage on the part of the husband" with "sexual infidelity" on the part of either

spouse as a ground for legal separation. And yet, many years after the passage of the Family Code, the Revised Penal Code (Act 3815, revealing as amended) retains both legal adultery (Art. 333, RPC) and concubinage (Art. 334, RPC) as felonies, thus the pernicious discrimination against women that still afflicts our tradition and society. Despite the right to equal treatment under the law, a wife can be convicted for a single act of sexual intercourse under Article 333 of the Revised Penal Code, while the husband is only liable for concubinage if he does any of the following acts specified in Article 334 of the Revised Penal Code, to wit: (1) keeping a mistress in the conjugal dwelling; (2) having sexual intercourse under scandalous circumstances with a woman who is not his wife; or (3) cohabiting with her in any other place. Moreover, a wife in an adultery case incurs a heavier penalty than a husband in a concubinage case. This paper features an illustrative case of analysis, seeks to review on the responsiveness of the Philippine infidelity laws to contemporary life and propose possible remedies and amendments on such disparity between the penalties imposed by existing laws on the crimes of adultery and concubinage under Articles 333, 334 and 344 of the Revised Penal Code. Furthermore, this should be more attuned to the Constitutional mandate of fundamental equality before the law of men and women. Statement of Objectives This paper seeks to review the responsiveness of the Philippine infidelity laws to contemporary life and propose possible remedies and amendments on such disparity between the penalties imposed by existing laws on the crimes of adultery and concubinage under Articles 333, 334 and 344 of the Revised Penal Code. The following questions shall be answered: 1. Differences between the existing laws on the crimes of concubinage and adultery as to their concept, nature and penalties.

2. How responsive is the existing law on the crimes of concubinage and adultery to contemporary life? 3. Is there a need for any revisions and amendments of Articles 333, 334, and 344 of the Revised Penal Code? 4. What are the possible ways to revise and amend the existing law on the crimes of concubinage and adultery to be more attuned to the Constitutional mandate of fundamental equality before the law of men and women? Methodologies This research paper is a qualitative study that utilized the descriptive and historical approaches in understanding its subject. The illustrative case of analysis in this study is a review on the responsiveness of the infidelity laws to contemporary life in the Philippine context. It is a theoretically-informed discussion on criticisms on the disparity of the penalties of Philippine infidelity laws. As such, it allows the examination of more general principles by providing an example of a real situation of policy stability and change, enabling a clearer understanding of ideas than could be achieved simply by presenting abstract theories. Thus, this research employs the following methods of data collection and analysis: 1. Comprehensive literature review. This serves as the foundation upon which the research process will be based. Through this, the researchers were able to know what has been written regarding the concepts and its elements to relate them to the institutional application in the Philippines. Primary sources of data, such as laws and statutes, and secondary sources, such as treatise, books and commentaries, are used to gather and provide information and arrive at answers and analyses to achieve the objectives. Specifically, this paper used the legal bases such as the 1987 Philippine Constitution, Revised Penal Code of the Philippines, Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), Magna

Carta for Women and all other laws related. Furthermore, this study is also anchored on the Legal Equality doctrine. 2. Analysis of proposed House Bill This was undertaken in order to gather the background information into the existence of filing such legislative bill and the history and related authors of the said bills. These scanned records taken from Congress website allowing all people who have accessed to the internet an examination of what exactly is happening to the bills from the time of filing, and how they had been officially disposed of by the Committees. II. THEORETICAL BACKGROUND Legal Equality Doctrine Equality before the law, also known as legal equality, is the principle under which all people are subject to the same laws of justice (due process). All are equal before the law. Article 7 of the Universal Declaration of Human Rights states that, "All are equal before the law and are entitled without any discrimination to equal protection of the law." Thus, the law and the judges must treat everybody by the same laws regardless of their gender, ethnicity, religion, socio-economic status, and some other relevant factors without privilege. Legal Equality Doctrine states that differences can be erased by laws and policies that require that men and women be treated the same. An "equality principle" is a philosophical, moral, and legal doctrine asserting that all human beings are "equal," and that they ought to be treated "equally" under the law. The doctrine leaves two very important unanswered questions: In what respect are people equal? How people ought to be treated equally under the law? Using the legal equality doctrine, women and men are made the same in the eyes of law, and therefore cannot be treated differently. Advocates of the legal equality doctrine claim that differences can be erased by laws

and policies which require that men and women be treated the same. The doctrine of legal equality goes back to the natural law doctrine of the Stoics which, in the name of universal reason, postulates equality of individuals, races and nations. How people ought to be treated equally under the law? Equality of treatment, according to this view, similarly situated people should be treated equally. For instance, all people who commit the same crime under the same circumstances should be punished in the same way; differences in treatment should arise only from differences in the circumstances surrounding the crime. This concept leaves unanswered two important questions: First, similar in which respects? If one man is beaten as a child and then beats his children, and another man is raised by great parents and beats his children, should we consider the men's different backgrounds in deciding how to treat them under the law? Which circumstances are relevant in determining which people are "similarly situated?" Second, how much should different circumstances affect our treatment? How much of a difference should the men's differing backgrounds make? Justice Stevens, writing for the Supreme Court, included dictum supporting an equality principle for gender in Miller v. Albright, 523 U.S. 420. Equality of Treatment Moralists have claimed that men, in spite of differences of character or intelligence, are of equal dignity, worth, or desert. Statements of this kind are to be interpreted in a normative sense, to the effect that all men are entitled to be treated equally. The same applies to the allegation that all men have the same moral or natural rights. To say that I have a moral right implies that others should let me exercise it (whereas to have a legal right means that it is conferred by positive law). Thus, Locke interprets his own statement, that men by nature are equal as referring, not to all sorts of equality, since men differ as to age or virtue, but to the equal right that every man hath to his natural freedom; this means that men, should also be equal amongst another, that is, they should be given the corresponding legal rights. Analogously, to claim that those of one nation or race or class are superior to all others is to hold that they ought to receive preferential treatment.

One of the most known and influent political and juridical theories is the Theory of the Social Contract, whose important representatives were the English thinkers J.Locke and T. Hobbes and the French Ch. Montesquieu and J.J. Rousseau. The basic idea resulting from this theory is that, by means of the contract one has found a form of association able to protect and guarantee both the persons and the goods of each partner allowing each citizen to keep his or her liberty and to affirm equality towards. Legal Bases Equality between men and women before the law is not impossible to achieve, since this has been supported by appropriate number of legal bases, to wit: Section 14, Article II of the 1987 Philippine Constitution, provides that "The State recognizes the role of women in nation building and shall ensure the fundamental equality before the law of women and men. This statement clearly encouraged our legislators to consider fairness in the enactment of laws, regardless of gender. Section 12, Magna Carta of Women (RA 9710), provides that, The State shall take steps to review and, when necessary, amend and/or repeal existing laws that are discriminatory to women within three (3) years from the effectivity of this Act. This statement leads us to the question, isnt that the law of adultery and concubinage discriminatory to women? Article 2, Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) is clear on the obligations of State Parties. In order to eliminate discrimination against women, states must undertake: (a) To embody the principle of the equality of men and women in their national institutions and other appropriate legislation if not incorporated therein and to ensure through law and other appropriate means, the practical realization of this principle;

(b) To adopt appropriate legislative and other measures, including sanctions, where appropriate, prohibiting all discrimination against women; (c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination;

(d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation; (e) To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise;

(f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women.

III. NATIONAL POLICIES ON CONCUBINAGE AND ADULTERY A Brief Discussion on Philippine Infidelity Differences between the existing laws on the crimes of concubinage and adultery as to their concept, nature and penalties under the Revised Penal code of the Philippines where as follows: As regards to their concept or definition: Concept of 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. (Art. 334, Revised Penal Code) The crime of concubinage is committed by a married man who: 1. Shall keep a mistress in the conjugal dwelling a). the concubine must live in the conjugal dwelling even for brief periods of time, and not where she occasionally comes for a tryst or to spend the night therein. 2. Shall have sexual intercourse with her under scandalous circumstances. a). Proof of sex is not necessary but may be inferred. b). There be a public or open flaunting of the illicit relationship so that the public is scandalized, shocked, or the conduct give rise to general protest, or that the relationship sets a bad example.

c). Example: being seen with the woman in social and public gatherings; introducing or treating the woman as though she was the wife. d) Since public reaction is gauge of the scandal is there concubinage if: (i) openly going out is in places where the two are total strangers (ii) relatives and acquaintances accept the fact of the relationship, as when the wife left the man who now is cared and loved by another woman. 3. Cohabit with her in any other place. a). To cohabit is to live together as husband and wife. 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. (Art. 333, Revised Penal Code)

The crime committed by a 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: A. The gist is actual sexual intercourse and not just mere romantic dating, or petting or kissing. B. There is no frustrated stage: it is either that the accused were able to engage in sex or not. C. It is not a continuing crime because each separate sex act on a different occasion is a different and a separate crime. D. This may be committed when a married woman marries a second time without the first having been judicially annulled or voided. Her liability is in addition to bigamy.

Proposed Bills on Philippine Infidelity Laws House Bill 3721 An Act simplifying the acts constituting concubinage amending for this purpose Article 334 of the Revised Penal Code of the Philippines. This bill was introduced by Rep. Linabelle Ruth R. Villarica of the 4th District of Bulacan. It aims to correct by way of legislative amendment the provisions of Art. 334 of the Revised Penal Code regarding the proof of evidence required to prosecute the offender favors men over women, thus violating the fundamental equality of men and women before the law.

House Bill 3761 An Act amending Republic Act numbered three thousand eight hundred fifteen, as amended, otherwise known as the Revised Penal Code of the Philippines, and for other purposes. This bill was proposed by Rep. Pablo Garcia in order to remove gender bias observed in the provisions of the Revised Penal Code and to synchronize the provisions of existing laws in the country and seeks to maintain the crime of adultery instead of creating another crime. It also proposes to repeal from the Revised Penal Code the crime of concubinage and make adultery a crime that can be committed by any legally married person who shall have carnal knowledge of a person not his or her spouse. The bill further suggests that the crime of adultery be imposed on the person with whom the guilty spouse has had carnal knowledge, provided that this person knew of the legal status of the guilty spouse even if the latters marriage is subsequently declared void. It also recommends that both offending parties of the crime of adultery be meted with same gravity of penalty. House Bill 5734 An Act Defining the Crime of Sexual Infidelity and Providing Penalties Therefor (An Act Defining the Crime of Sexual Infidelity and Providing Penalties Therefor, Amending for the Purpose Articles 333(Adultery) 334 (Concubinage) and Articles 344 and 345 of Title 11, Book II of Act No. 3815, As Amended, Otherwise Known as the Revised Penal Code ) HB 5734, an Act Defining the Crime of Sexual Infidelity, is a consolidation of five bills filed by Deputy Speaker Ma. Isabelle Climaco; Susan Yap (LP, Tarlac); Josephine Veronique Lacson Noel (LP, Malabon-Navotas); Teddy Brawner Baguilat (LP, Ifugao); and Linabelle Ruth Villarica (LP, Bulacan).

The House Committee on Women and Gender Equality has approved and endorsed to the plenary House Bill (HB) 5734, an Act Defining the Crime of Sexual Infidelity, that would penalize a married person who engage in sex with an individual other than his or her legal spouse. HB 5734 defines sexual infidelity as an act committed by any legally married person who shall have sexual intercourse with another person other than his or her legal spouse, The proposed bill aims to protect the institution of marriage and provides that, if the crime happens within the home of the married couple, the party found guilty of sexual infidelity will be penalized with prision correccional in its maximum period. If it happens somewhere else, the party guilty of the crime will be meted with prision correccional in its medium period.

IV. CRITICAL ANALYSIS A Comparison of Infidelity Laws under RPC & the Proposed Bill

Revised Penal Code Adultery The crime committed by a 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 Married woman who engages in sexual intercourse with a man not her husband Prision correcional in its "medium" and "maximum" periods or arresto mayor if the adulterer committed this offense while being abandoned with justification with the offending spouse 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 Any husband who shall keep a mistress in the conjugal dwelling Prision correcional in its "minimum" and "medium" periods and the concubine shall be punished with destierro

HB5734 Sexual Infidelity An act committed by any married person who shall have sexual intercourse with another person other than the other married person's spouse

Concept

Guilty party Penalty

A married person who engage in sex with an individual other than his/her legal spouse If the crime happens within the home of the married couple, the party found guilty of sexual infidelity will be penalized with prision correccional in its maximum period. If it happens somewhere else, the party guilty of the crime will be meted with prision correccional in its medium period. If the offense is committed under any of the following

Sexual intercourse is enough for the prosecution to win an adultery case

Proof of evidence

Prosecution must prove that the sexual intercourse took place under scandalous circumstances, or that the husband kept a mistress in the conjugal dwelling or cohabited with her in any other place

circumstance (the accused spouse had been abandoned with more than one year without any justifiable cause or subjected to repeated physical violence or grossly abusive conduct by the offended spouse), then the penalty shall be prision correccional in its minimum period Prosecution must prove that the offender kept a paramour/mistress under the conjugal dwelling or cohabited with him/her in any other place, or that the accused spouse had been abandoned with more than one year without any justifiable cause or the accused spouse had been subjected to repeated physical violence or grossly abusive conduct by the offended spouse Offended party can file a complaint, unless he or she falls under the exception stated below

Prosecution of the crime

Complaint is filed by the husband (as the offended spouse)

Complaint is file by the wife (as the offended spouse)

Exceptions

Criminal prosecution cannot be instituted without including both the wife and the paramour (guilty parties), if they are both alive or if the offended spouse has consented to the offense or pardoned the offenders, even implicitly

Criminal prosecution cannot be instituted without including both the husband and the mistress (guilty parties), if they are both alive or if the offended spouse has consented to the offense or pardoned the offenders, even implicitly

Criminal prosecution cannot be instituted without including both the guilty parties if they are alive, or in any case the offended party is likewise guilty of sexual infidelity, had abandoned the guilty spouse without just cause for more than one year or had condoned, consented or pardoned the offenders

V. CONCLUSION Based on the foregoing discussion, the researchers points out the disparities between the two infidelity laws: Concubinage is not committed by the husband even if he provides his mistress her own house or apartment, as long as he does not live with her though he regularly visits her thereat, at which time they engage in sex. The fact of criminal conversation or sexual intercourse with a woman does not per se give rise to concubinage. Further, each sexual act is not a separate offense because concubinage is treated as a continuing crime. Unlike adultery, a wife can be convicted for a single act of sexual intercourse. It is not a continuing crime because each separate sex act on a different occasion is a different and a separate crime.

Hence, the researchers affirm that it is more difficult when convicting a married man for concubinage compared to a married woman for adultery. Thus, revealing the pernicious discrimination against women that still afflicts our legal tradition and society. Anchoring on Legal Equality Doctrine that differences can be erased by laws and policies that require that men and women be treated the same and under Sec. 14, Art. II of the 1987 Constitution, the researchers concurred to the proposed bills passed in view of the revision of the concept or definition of concubinage and adultery under the Revised Penal Code into marital infidelity for both sexes to eliminate the double standard between husband and wife. The retained crime is neither adultery nor concubinage but will then become sexual infidelity that will be made applicable to both husband and wife defined as an act committed by any married person who shall have sexual intercourse with another person other than the other married person's spouse. This definition will give an equal footage for both husband and wife. They can be convicted for a single act of sexual intercourse. It is not a continuing crime because each separate sex act on a different occasion is a different and a separate crime. Moreover, the researchers agree on the stiff penalties imposed, to wit: if the crime happens within the home of the married couple, the party found guilty of sexual infidelity will be penalized with prision correccional in its maximum period. If it happens somewhere else, the party guilty of the crime will be meted with prision correccional in its medium period. If the offense is committed under any of the following circumstance (the accused spouse had been abandoned with more than one year without any justifiable cause or subjected to repeated physical violence or grossly abusive conduct by the offended spouse), then the penalty shall be prision correccional in its minimum period. In view for the prosecution of the crime, it is important to note that the complaint cannot be instituted by the offended spouse without including both the guilty parties if they are alive, or in any case the offended party is likewise guilty of sexual infidelity, had

abandoned the guilty spouse without just cause for more than one year or had condoned, consented or pardoned the offenders. VI. REFERENCES Primary Sources
Sec. 14, Art. II, 1987 Constitution Art. 333, 334, 344, Revised Penal Code

Sec. 12, Magna Carta of Women (RA 9710) Miller v. Albright, 523 U.S. 420 Art. 2, Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) Art. 7, Universal Declaration of Human Rights Secondary Sources J.Locke, The Social Contract Theory T. Hobbes, The Social Contract Theory French Ch. Montesquieu and J.J. Rousseau, The Social Contract Theory Electronic Sources http://alfi.org.ph/wp-content/uploads/2012/04/20120330-Status-of-Anti-Family-Bills-inCongress.pdf http://www.congress.gov.ph/download/basic_15/HB03761.pdf http://www.congress.gov.ph/download/basic_15/HB03721.pdf http://www.saligan.org/index.php/archives/64-saligan-seeks-the-passage-of-womenlaws.html http://www.ipu.org/wmn-e/classif.htm

http://www.google.com.ph/url? sa=t&rct=j&q=legal+equality+doctrine&source=web&cd=20&ved=0CGcQFjAJOAo&url= http://academic.cengage.com/resource_uploads/downloads/0495802662_215414.doc& ei=P-cAUKPVB8jZigfPwsSjCA&usg=AFQjCNE0LfFj5n9LRf9kCq27gVUSFNV3jg http://books.google.com.ph/books? id=7smN_0tcMfIC&pg=PA416&lpg=PA416&dq=Legal+equality+doctrine&source=bl&ots =gqjtM89yEZ&sig=i7OzKdye7olziogsSsMM24MLQag&hl=fil&sa=X&ei=8u4AUNGOPKyf mQXG5JnsCQ&ved=0CEwQ6AEwAjgU#v=onepage&q=Legal%20equality %20doctrine&f=false http://www.now.org/issues/economic/cea/concept.htmlhttp://www.conservapedia.com/Equality_principle http://www.uab.ro/reviste_recunoscute/reviste_drept/annales_10_2007/andritoi_en.pdf