MARITAL INFIDELITY: TO PUNISH OR NOT TO PUNISH (Part I of a Series)

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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