Below is a comprehensive discussion on the crimes of adultery and concubinage under Philippine law, taking into account their legal basis, elements, penalties, procedural aspects, and relevant considerations. While Philippine jurisprudence and statutory laws have evolved over time, the primary laws on this topic remain found in the Revised Penal Code (RPC).
1. Legal Basis
- Adultery is punished under Article 333 of the Revised Penal Code.
- Concubinage is punished under Article 334 of the Revised Penal Code.
These provisions have historical roots in Spanish colonial law and continue to apply in the Philippines, though they have faced much debate and proposed reforms.
2. Definition and Elements
2.1 Adultery
Who can commit adultery?
- Under Article 333, only a married woman and her male partner (who knows she is married) can be held liable for adultery.
What constitutes adultery?
- The crime of adultery is committed by a married woman who engages in sexual intercourse with a man not her husband. It is sufficient that:
- The woman is legally married.
- She has sexual intercourse with a man not her husband.
- The man must have knowledge of the woman’s married status.
- The crime of adultery is committed by a married woman who engages in sexual intercourse with a man not her husband. It is sufficient that:
Distinctive Features:
- Each act of sexual intercourse constitutes a separate count of adultery.
- Proof typically requires either direct evidence (e.g., an eyewitness) or strong circumstantial evidence (e.g., child born out of that relationship, admissions, etc.).
- Adultery is considered a private crime, meaning only the offended spouse can initiate criminal proceedings. No third party can do so on the spouse’s behalf (subject to specific exceptions, e.g., if the offended spouse is a minor or mentally incapacitated).
2.2 Concubinage
Who can commit concubinage?
- Under Article 334, a married man and his concubine (i.e., the woman involved) can be liable.
What constitutes concubinage?
The crime of concubinage is committed by a married man under any of the following circumstances:
- Keeping a mistress in the conjugal dwelling (i.e., the family home).
- Having sexual intercourse under scandalous circumstances with a woman not his wife.
- Cohabiting with her in any other place.
For the mistress or concubine to be liable, she must know that the man is married.
Distinctive Features:
- Unlike adultery, where every act of sexual intercourse is a separate offense, concubinage punishes the continuing relationship or cohabitation (or scandalous circumstances).
- The burden of proof is often seen as stricter or more complex for concubinage compared to adultery (e.g., proving “scandalous circumstances” or “cohabitation”).
- It is also a private crime, and only the offended wife can file the complaint.
3. Penalties
3.1 Adultery (Article 333)
- The penalty for adultery is prisión correccional in its medium and maximum periods (i.e., from 2 years, 4 months, and 1 day to 6 years).
- Both the married woman and the man who has carnal knowledge of her (with knowledge of her married status) are subjected to the same penalty.
3.2 Concubinage (Article 334)
- The married man found guilty of concubinage faces the penalty of prisión correccional in its minimum and medium periods (i.e., from 6 months and 1 day to 4 years and 2 months).
- The concubine (i.e., the unmarried woman with knowledge of his married status) receives a lighter penalty: destierro, meaning banishment or prohibition from residing within a certain radius (often 25 kilometers) from the offended party’s domicile.
- Critics of these provisions argue that this difference in penalty structure (in contrast to adultery) reflects an outdated perspective and an imbalance in how the law treats marital infidelity.
4. Procedural Aspects and Conditions
Nature as Private Crimes
- Adultery and concubinage are private crimes. Only the offended spouse can initiate the complaint.
- A spouse who consented to or pardoned the act cannot later prosecute. Such consent or pardon may be explicitly in writing or implied by certain actions (e.g., reconciliation or continued cohabitation with knowledge of the acts).
No Separate Civil Action
- Any civil action arising from adultery or concubinage is generally merged in the criminal action. The offended spouse may seek damages but must do so within the same criminal proceeding.
Requirement of a Valid Marriage
- The complainant and the accused must be in a valid, subsisting marriage. A marriage that is void from the start or declared null and void before the alleged acts occurred cannot serve as the basis for adultery or concubinage charges.
Effect of Annulment or Legal Separation
- If a marriage is nullified before the alleged infidelity, no criminal liability for adultery or concubinage can arise.
- If the annulment or legal separation is filed or granted after the alleged acts, that does not necessarily absolve the accused of liability for prior acts.
Pardon and Extinguishment of Criminal Action
- The offended spouse may extend an express pardon (in writing) to the offending parties or may be deemed to have given an implied pardon by voluntarily cohabiting with the offending spouse with full knowledge of the infidelity.
- This pardon, once established, can bar prosecution.
5. Common Misconceptions
“One Witness or an Admission is Enough.”
- Adultery and concubinage still require due process. A simple rumor or uncorroborated admission often may not meet the threshold for criminal conviction. Strong evidence and adherence to the elements are necessary.
“Men Cannot Be Guilty of Adultery.”
- A married man can be a co-accused in adultery if he is the sexual partner of a different married woman, knowing that she is married. Adultery is specifically the married woman’s offense, but the man who has intercourse with her can also be indicted.
“Concubinage Requires Only One Act.”
- Concubinage generally contemplates a continuing or repeated offense such as cohabitation or notoriously scandalous circumstances, rather than a single isolated event.
“All Infidelity is the Same Crime.”
- Philippine law treats the infidelity of a married woman (adultery) differently from the infidelity of a married man (concubinage), with differing elements and penalties.
6. Constitutional and Policy Debates
Gender Discrimination:
- Critics argue that the definitions and penalties for adultery and concubinage are biased: a married woman is penalized for a single act of intercourse (adultery), whereas a married man must either keep a mistress in the conjugal dwelling, cohabit with her, or engage in scandalous conduct to be penalized (concubinage).
- The difference in the required proof and penalties is often cited as unequal treatment and inconsistent with contemporary views on gender equality.
Calls for Decriminalization:
- There have been legislative proposals to either decriminalize adultery and concubinage or to replace them with a gender-neutral crime of “marital infidelity.”
- Supporters of reform see it as outdated to handle infidelity primarily under criminal law and suggest shifting the focus to civil remedies or family law proceedings.
Practical Application:
- Given the complexity and private nature of these cases, prosecutions for adultery and concubinage remain relatively infrequent compared to other criminal cases.
- Often, couples resort to civil proceedings (annulment, legal separation, etc.) rather than criminal prosecution, due to stigma or the desire to avoid public scrutiny.
7. Selected Landmark Cases and Interpretations
People v. Sensano (G.R. No. L-7615, 1955)
- Clarified that each act of adultery is a separate offense.
- Reiterated the need for direct or circumstantial evidence showing sexual intercourse.
Tumlos v. Spouses Fernandez (G.R. No. 200740, 2014)
- Emphasized that forgiveness by the offended party, either expressly or impliedly, is a valid defense that can extinguish criminal liability.
Guerrero v. People (G.R. No. 94528, 1992)
- Demonstrated that concubinage involves not merely an isolated act but a pattern of conduct or an arrangement consistent with cohabitation or scandalous circumstance.
(Note: Citation details may vary or have changed over the years; these cases are commonly referenced in discussing the law on adultery and concubinage.)
8. Practical Tips for Individuals Involved in Such Cases
Document Any Evidence:
- Proof of the offense can be difficult to obtain. If the offended spouse intends to file a complaint, he/she should compile evidence in a legal, non-intrusive manner (e.g., text messages, photographs, or witnesses).
Seek Legal Advice:
- Engaging a lawyer is crucial due to the private and sensitive nature of adultery/concubinage charges. Legal counsel ensures proper filing of complaints and observance of technical requirements.
Consider Alternatives:
- Criminal cases often strain relationships and are extremely stressful. Some may consider reconciliation, counseling, or purely civil remedies (such as annulment or legal separation) to resolve marital issues without the stigma or complexities of criminal prosecution.
Be Aware of Potential Defenses:
- A spouse accused of adultery or concubinage may raise defenses such as insufficient evidence, invalid marriage, or pardon by the offended spouse.
9. Conclusion
Adultery (Article 333, RPC) and concubinage (Article 334, RPC) remain entrenched in Philippine criminal law, reflecting traditional views of marital fidelity. Despite efforts at modernizing or repealing these provisions, they are still in force and carry significant legal consequences for those involved. The law treats the infidelity of wives and husbands differently—subjecting them to distinct elements and penalties—which, over the years, has fueled constitutional, legal, and ethical debates.
Under current law, key aspects are:
- Adultery: Committed by a married woman’s single act of sexual intercourse with a man who knows she is married. Each act is separately punishable.
- Concubinage: Committed by a married man under specific, more narrowly defined circumstances (cohabitation, keeping a mistress in the conjugal home, or scandalous sexual relations), and the concubine is subjected to a different penalty.
These crimes are private crimes, prosecutable only by the offended spouse, who may be barred from proceeding if there is evidence of consent or pardon. Despite their continued presence in the Revised Penal Code, growing sentiment in the Philippines calls for either decriminalization or equalizing the treatment of marital infidelity to address perceived gender inequality. Ultimately, individuals facing such issues should seek both legal counsel and consider other remedies beyond criminal prosecution, given the emotional and societal ramifications of these cases.