Marital Infidelity… for a law student taking a college course

Leveling Men and Women on Marital Infidelity

Mr. Asawa had sexual intercourse with Ms. Dalaga. Knowing her husband’s unfaithfulness, Mrs. Asawa was able to find a new lover with whom she had sexual intercourse. Who are liable for a crime, if any?
This is an example of a typical question in a Criminal Law exam. It is plain to see that in the situation, the husband and the wife did the same thing – they had sexual intercourse with another person other than their own spouse. However, the answer to the question is that only Mrs. Asawa can be prosecuted for a crime – adultery – upon a complaint filed by Mr. Asawa. Mr. Asawa, on the other hand, is not liable for any crime at all. Yes, he did the same thing as his wife and both have been unfaithful to each other. Dura lex sed lex. The law may be harsh but, it is still the law. Laws, however, can be repealed.
The Revised Penal Code was enacted 1930, based on the penal laws of Spain. Some articles have already been repealed and amended (Agpalo). Some articles have become obsolete, but still remain in the Code (Reyes). Other articles still manifest the bias against women which our society today has started to eliminate.
Title Eleven, which enumerates the definitions and penalties of crimes against chastity, includes on its first chapter, the crimes of Adultery and Concubinage. A married woman who shall have sexual intercourse with someone other than her husband is guilty of adultery (Art.333 Revised Penal Code). As simple as that. Sexual intercourse and the identity of the other man are the only elements that need to be proved by the prosecution. Furthermore, a wife can be prosecuted for as many acts of sexual intercourse. On the other hand, the man who is prosecuted for concubinage should be proven to have kept a mistress in the conjugal dwelling or cohabited with her in any other place; the sexual intercourse of the infidel husband with another woman should be proved to have been under scandalous circumstances (Art. 334 RPC).
The very definitions of the crime are distinct. So in reality, there is no law punishing adultery on the part of the husband. The husband should be unashamed enough to let his paramour live in the family home or in any other place before he gets to be punished for his infidelity.
Article 919 (3) of the Civil Code of the Philippines further exhibits the discrimination reflected by the penal laws on adultery and concubinage. The article identifies sexual infidelity as one of the causes of disinheritance between spouses. It defines sexual infidelity as adultery for women and concubinage for men; this is, unmistakably, a double standard. Why it is that adultery is not considered sexual infidelity for men? The implication of this law is that wives are more prone to disinheritance than husbands. This reveals the pernicious discrimination against women that still afflicts our legal tradition and society.
Familiarity with laws on adultery and concubinage would leave a socially conscious individual wondering, “Are men and women really equal under Philippine law?” The legislator who aims to capture the female sector would typically answer that we are on our way to making ways to promote such equality. However, no law has yet been passed by our male-dominated law-making body regarding the inequality apparent in the law on concubinage and adultery.
The law, aside from being lenient on men’s infidelity, imposes stiffer penalties on unfaithful women. Adultery carries a penalty of prision correccional in its medium and maximum periods, equivalent to 8 years and 1 day to 12 years of imprisonment (Art. 333 RPC). A man guilty of Concubinage, on the other hand, is punished with prision correccional in its minimum and medium periods or 6 years and 1 day to 8 years of imprisonment (Art. 334 RPC).
The law on concubinage should be repealed and the law on adultery should be amended so as to include men. Consequently, both can be classified as “infidelity of the spouse”. This new law should impose the same penalties; the same elements would be required to be proved to establish the guilt of the offending spouse. This way, the discrimination and equality of men and women on family and social relation would subside.
Infidelity is the breaking of marital vows. In Philippine culture, infidelities or extramarital relationships range from casual relationships to the keeping of a querida or paramour. In Filipino marriages, the husband’s infidelity is a major concern. Male infidelity can be the most frequent reason for marital separation (internet source).
Adultery and concubinage are both acts of infidelity. Until men and women are made to suffer on the same grounds and the same penalty, the principle on gender equality embedded in our 1987 Constitution can never be fulfilled. The constitutional mandate that the state recognizes the role of women in nation building and the fundamental equality of men and women is not being fully upheld. Constitutional provisions are general and need implementing laws. After almost two decades, these implementing laws have yet to be passed.
With the equality provision of the Constitution as well as a number of significant laws that have been passed for the benefit of women, the Philippine Government has committed itself to the advancement of women. In spite of these small successes, so much more remains to be done before de facto equality for women is actualized. This includes the eradication of unfairness of laws, most especially penal laws, among women.
Why is it that a law such as this, directly dealing with family relations, which is very important in a predominantly Catholic society, has not been given much priority? Is it because of the double standard type of morality we have in our society? More men are engaged in extramarital relations. But a husband is less tolerant or less forgiving when his wife becomes unfaithful. This should not be reflected in our laws, though. What is customarily or conventionally accepted should not mean that it is right in the eyes of the law. Husbands and wives should never be tolerated, by the law, in any circumstance to commit acts of infidelity by being lenient with them. Thus the need for the consolidation of the adultery and concubinage laws into one single law – infidelity of the spouse.
Adultery, in its general definition, seemed more unconcealed, almost natural for husbands. Males commonly court and seek out their extra-marital female partners. This may be because there is actually no law punishing adultery or sexual infidelity of men. Females, however, tended to feel more guilty, keeping it a secret. Unlike the males who actively court, the females’ affair are more happenstance, situation-bound, such as meeting an old boyfriend, or being closely thrown together by circumstances.
The gender issue behind infidelity is well-entrenched in Philippine culture (internet source). The excuse given is that men are expected to be material providers or breadwinners. Pure and simple. Men only needs to work hard to provide and protect, give their lives to their work, find respite in their beers, and in many cases, in their women, and generally kept their hearts to themselves. Parenting is considered primarily a mother’s responsibility. So whatever happens to the marriage, which as a result, would affect the children, is left in the hands of the mother. The mother will tend to do anything to save the marriage, remain faithful despite her husband’s infidelity.
The burden, then, is on women. The tolerance of our laws on infidelity of husbands results in the continued increase of unfaithful husbands and eventually, legal separation cases. The emotional trauma inflicted on the “victim” wife is worse than the physical abuse. It results in humiliation, hurt, rejection and loss for the injured partner since it attacks the person’s self-worth and ego. But why is that the laws have stiffer penalties for female unfaithfuls?
Our society seems to still consider many gender problems as trivial and marginal. This has to change. A small step such as amending the law on adultery and repealing the law on concubinage could count. This legal framework for women is quite impressive but the challenges of implementation and cultural shift remains. The interplay of culture and institutions like the bureaucracy, political offices, and the church makes the discourse on gender issues very animated and usually polarized.
All forms of discrimination against women should be eliminated through social and legislative reforms. There should be a general gender perspective in all legislation, public policies, programs and projects. The problems of enforcement and implementation may be many but popularizing them so that they become tools of empowerment could elucidate these problems. Information campaigns and dissemination mechanisms to promote and explain the workings of these laws need to be strengthened. Moreover, there is some resistance to the actual implementation of these laws because of deep-seated sexist attitudes and practices. Given this resistance, it has been difficult for bills on women to be enacted.
It is true that more is required than legislation. We cannot legislate a change in culture. The inequality of men and women is deeply embedded not just in our laws but in our everyday lives. Changing this is a slow process that requires the education as well as the economic and political empowerment of women as well as men. It’s a long road, but we will get there. We have to take a step. Reduce discrimination by making men and women suffer the same for their infidelities. Eliminate the distinction between adultery and concubinage for both are just acts of infidelity