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. )
Marriage is a sacred union which obliges the parties “to live together, observe mutual love, respect and fidelity, and render mutual help and support.”
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 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 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.” This was echoed in Evans v. Murff 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.. Then called criminal conversation, it was decriminalized in England as early as in 1857, and in predominantly Catholic Ireland in 1976. The latter was one of the last European countries to strike adultery from their penal codes.
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. 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).. Turkey’s adultery law was declared unconstitutional in 1996 because it was deemed discriminatory as it differentiated between women and men. 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.
(TO BE CONTINUED...)
 Art. 68, Family Code of the Philippines.
 See, Article 333 of the Revised Penal Code.
 See, Article 334 of the Revised Penal Code.
 US v. Mata, G.R. No. L-6300, 2 March 1911.
 135 F. Supp. 907, 911 (1955).
 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
 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.
 BBC News: Europe, Turkey signals U-turn on adultery, 14 September, 2004. Accessed from: http://news.bbc.co.uk/2/hi/europe/3654650.stm.
 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.