By CHERYL L. DAYTEC
(The contents of this paper were presented
during a policy session with officers of the Department of Social Welfare and
Development facilitated by Atty. Germaine Trittle Leonin. The session was
intended to come out with an output for consideration by the Congress of the
Philippines. )
A. Introduction
Marriage is
a sacred union which obliges the parties
“to live together,
observe mutual love, respect and fidelity, and render mutual help and support.”[1]
To maintain the sanctity of marriage, the parties to it
should remain faithful to each other. Infidelity is regarded as a perversion of
marriage such that in most if not all countries,
it is a ground for divorce. In the Philippines which shares stellar billing with
Vatican as the two member-States of the United Nations without a divorce
legislation, it is a ground for legal
separation. The most extreme way the can law address marital infidelity with the end in view of
curbing it is by defining it as a criminal conduct.
As they began in the dawn of human history,
criminalization projects dealt with
wives more severely than husbands. Adultery is the common term for marital infidelity
regardless of whether it is attributable to the husband or the wife. Gender-based
discrimination has always been the order of the day with harsher sanctions for wives than
husbands who breached their
vows of fidelity. This is
true in the Philippines which is the
only unfaithfulness-penalizing country where the nomenclature for the crime
committed through marital infidelity changes based on the sex of the spouse.
The crime has been baptized by the Revised Penal Code adultery if committed by the wife, and concubinage if committed by the husband.
It is not only in name where the
two crimes differ but also in terms of nature, proof required, and
penalty. Adultery[2]
is committed by a married woman and her paramour aware of her marital status when they engage in carnal relation,
whether discreetly or not. Every single sex act constitutes adultery. Mere
proof of sexual intercourse is sufficient for conviction. The penalty ranges
from 2 years, 4
months and 1 day to 6 years of imprisonment. On
the other hand, concubinage[3] is committed by a husband and his paramour aware of his marital status when
they engage in carnal relations under
scandalous circumstance, or when they cohabit
within the conjugal dwelling or any other
place. Obviously, mere proof of sex does not warrant a conviction. The
penalty for concubinage
ranges from 6 months and 1 day to a maximum of 4 years and 1 day of
imprisonment for the husband and
destierro for his paramour. The light penalty for concubinage
and the stringent proof requirement for
a husband’s conviction speaks the message that the husband is not responsible for breaching his
marital vows because social
expectations shaped him to behave in
that manner.
This brief paper delves into the present proposal to
amend the Revised Penal Code of the Philippines to make its provisions on
marital infidelity gender-neutral and the alternative call for decriminalization. The purpose of this paper
is to provide discussion points in discourses on policies regarding marital
infidelity.
B. The Justification for Gender-Bias in
Infidelity Penal Laws
The
criminalization of adultery must have been a progeny of the privatization of economic goods or property.
According to the Supreme Court of the United States in US v. Mata, “The gist of the crime of adultery under the Spanish
law, as under the common law in force in England and the United States in the
absence of statutory enactment, is the danger of introducing spurious heirs
into the family, whereby the rights of the real heirs may be impaired and a man
may be charged with the maintenance of a family not his own.”[4]
This was echoed in Evans v. Murff[5] where a United States District Court said, “The application of the term to the act appears to
arise from the idea that "criminal intercourse with a married woman ...
tended to adulterate the issue of an
innocent husband ... and to expose him to support and provide for another man's
[children]."
This harkens back to the age of feudalism when
a woman was regarded as chattel, a baby factory
whose function was to produce the heirs to inherit the fruits of her
husband’s labor.
The argument that anchors the
gender bias in our Revised Penal Code
is a relic of the past and has
lost currency. Science and technology
have made steady progress such that they are now available to easily establish
the paternity and filiation of a child.
C. Decriminalization Movements Around the Globe
In several jurisdictions
in the world, marital infidelity has been decriminalized although maintained as
a ground for divorce. It is no longer a
crime in any European country..[6]
Then called criminal conversation, it
was decriminalized in England as early as in 1857, and in predominantly
Catholic Ireland in 1976.[7]
The latter was one of the last European countries to
strike adultery from their penal codes.[8]
Decriminalization
movements invoked equality guarantees of domestic and international laws. In
1996, the Guatemalan Constitutional Court decriminalized
marital infidelity or adultery holding that it was repugnant to the constitutionally
protected equality of sexes.[9]
The landmark decision also stressed Guatemala’s need to honor its human rights treaty
obligations including those under the
Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW)..[10]
Turkey’s adultery law was declared unconstitutional
in 1996 because it was deemed discriminatory as it differentiated
between women and men.[11]
In 2007, the
Ugandan Constitutional Court also hurled into the dustbins of history
the State’s adultery law penalizing
women but not their male partners. The latest to take marital
infidelity off the penal statute
books is South Korea. This year, its Constitutional Court struck down
its law against adultery declaring
that it
is a private matter which should not be invaded by the State.[12]
(TO BE CONTINUED...)
[1] Art. 68,
Family Code of the Philippines.
[2] See, Article 333 of the Revised Penal Code.
[3] See, Article 334 of the Revised Penal Code.
[4] US v. Mata,
G.R. No.
L-6300, 2 March 1911.
[5] 135 F. Supp. 907, 911 (1955).
[6] Prof. Frances Raday,
Chair of the WG on Discrimination against Women, Background Information on
the Statement Issued by the Working Goup on Discrimation Against Women.
Accessed through: http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=12672&LangID=E
[7] Id.
[8]. Id.
[9] See, “Joint Statement by the
United Nations Working Group on discrimination against women in law and in
practice” of 18 October 2012, available at http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=12672&LangID=E.
[10] Id.
[11] BBC News: Europe, Turkey signals U-turn
on adultery, 14 September, 2004. Accessed from: http://news.bbc.co.uk/2/hi/europe/3654650.stm.
|
[12] Hail
Ji, South Korea and Adultery, The New
York Times, 1 April 2015. Accessed from:
http://www.nytimes.com/2015/04/02/opinion/south-koreans-and-adultery.html.
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