MARITAL INFIDELITY: TO PUNISH OR NOT TO PUNISH (Part II of two parts)

 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. )

D. Practice of Other States

Among Western countries, it is only in the United States where marital infidelity is a crime. In 21 States, it is either a misdemeanor, a crime punishable with incarceration for one year or less,  or a felony which is punished more than a misdemeanor.

Most of the States that still maintain penal laws against marital infidelity   are those where the dominant religion is Islam, and Sub-Saharan African Christian-majority countries. Among non-Muslim countries in Asia, it is only  Taiwan and the Philippines which define marital infidelity as a crime. There is of course the peculiar case of India where adultery may be committed only by a man who engages in sex with the wife of another man who did not consent to the act.^[1] Although facially, it is discriminatory against men, it is also substantially degrading to women as it treats them as their respective husbands’  property. A husband can consent to his wife’s adultery and she will not incur any criminal liability.

There is now a pending bill in the House of Representatives authored by Gabriela party-list representatives Luz Ilagan and Emmi de Jesus which seeks to amend the Revised Penal Code by erasing  the distinctions between concubinage and adultery and  making marital infidelity a crime of  husbands and wives. What is sauce for the gander must be sauce for the goose.

On the other hand, the UN Working Group on Discrimination against women in law and in practice has issued a call to Governments to repeal laws criminalizing adultery.^[2]

A.  Arguments For The Enactment of a Gender-Neutral Law Penalizing Marital Infidelity

1.    The current criminal laws in the Philippines on marital infidelity reinforce gender inequality and promote misogyny. Proof of sexual intercourse is enough in adultery, but in concubinage, the prosecution must prove that the sexual intercourse was under scandalous circumstances, or that the husband kept a mistress in the conjugal dwelling or cohabited with her in any other place. The penalty for concubinage is lower than that of adultery. The penalty for the concubine is only destierro, while the penalty for the “other man” in adultery is the same as that for the guilty wife. To erase this discrimination, the law must be amended to treat men and women equally.

2.    The sex-based discrimination in the  treatment of marital infidelity under the Revised Penal Code violates the equal protection clause of the 1987 Philippine Constitution (Sec. 1, Art. III) taken together with Sec. 2,  Art. II which  provides that “(t)he State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.”

3.    The amendment of the Revised Penal Code to incorporate a gender-neutral provision penalizing marital infidelity is mandated by Sec. 12 of RA 9710 or the Magna Carta of Women (MCW) which directs  the amendment or repeal of laws that are discriminatory to women.

4.    The Philippines ratified the Convention on all Forms of Discrimination Against Women which is therefore part of its domestic law under the incorporation doctrine^[3] in the Constitution. Article 2(g) of CEDAW requires the State to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against women. Article 15 of CEDAW provides:  “States parties shall accord to women equality with men before the law.” Article 16 provides that “States parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women…(t)he same rights and responsibilities during marriage and at its dissolution.”

5.    The Philippines also ratified the International Covenant on Civil and Political Rights and is part of its domestic law. It is in keeping with the ICCPR to adopt a gender-neutral criminal law on marital infidelity. Article 23 of the ICCPR provides: “States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.”

6.    The Family Code of the Philippines (EO 209, as amended) provides  marital infidelity as a ground for legal separation. It makes no distinction whether the one who breached the marital trust is the husband or the wife. To harmonize the Family Code with the Revised Penal Code, Arts. 333 and 334 of the latter must be accordingly amended.

7.    The discrepancy  between the treatment of infidelity by the wife and  the infidelity by the husband  has been legally and judicially justified in US v. Mata^[4] as necessary to prevent “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.”^[5] With the advancement and progress in science and technology which has made DNA tests available, it is now easy to establish the paternity of a child a woman may give birth to. The philosophical underpinning of or spirit behind the discrimination has disappeared. There is no reason to maintain it in law. When the spirit disappears, so must the letter of the law.

B.    Arguments Against The Enactment of a Gender Neutral Infidelity Penal Law

According to the UN Working Group on women, “Criminal law definitions of adultery may be ostensibly gender neutral and prohibit adultery by both men and women. However, closer analysis reveals that the criminalization of adultery is both in concept and practice overwhelmingly directed against women.”^[6]  In societies like the Philippines where patriarchy rules  and where social norms still regard the husband’s infidelity as an affirmation of his macho image and the wife’s infidelity as an affirmation of her image as a whore or vampire (if she is not a virgin or a Madonna), a facially gender-neutral law will be enforced in a discriminatory way.

C.   Arguments for the  Decriminalization

of Adultery and Concubinage

^1.       The current laws on marital infidelity reinforce gender inequality and misogyny which expose women to more vulnerabilities and risks. According to the United Nations Working Group on discrimination against women in law and in practice, “maintaining adultery as a criminal offense, even when it applies to both women and men, means in practice that women mainly will continue to face extreme vulnerabilities, and violation of their human rights to dignity, privacy and equality.”^[7]  This is because as earlier pointed out, the enforcement a law, which is gender-neutral in literal expression, in a society where women are still regarded inferior will be discriminatory.  By decriminalizing adultery, the State eliminates such risks and vulnerabilities to further discrimination.

2.    The criminalization of infidelity is an invitation of too much government interference into the personal lives of people including on matters that should be dealt with privately .It  obviously represents State overreach into people’s private lives. It  is indubitably  a violation of  the right to privacy which is protected by the Constitution.

3.    The Philippines ratified the International Covenant on Civil and Political Rights which is therefore part of its domestic law under the incorporation doctrine^[8] in the Constitution. Under Art. 17 of the ICCPR, it is provided: “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation…Everyone has the right to the protection of the law against such interference or attacks.” International human rights jurisprudence established that criminalization of sexual relations between consenting adults is a violation of their right to privacy and infringement of article 17 of the International Covenant on Civil and Political Rights.^[9] States parties to the Covenant are obliged to ensure that domestic norms take account of developments in international law and incorporate interpretations of the decisions of international courts and international and regional human rights mechanisms, including the treaty bodies and special procedures.^[10]

4.    Adultery/concubinage involves a breach of trust and commitment of fidelity “until death do us part”  and is therefore a breach of   a marriage contract; thus, liability for dishonoring the contract should  be civil in form and substance  and not criminal.^[11] Decriminalization respects the free will and autonomy of the spouses to determine whether to remain  married. Such decision should not be imposed by the State through a penal law.  Maintaining trust and fidelity in a marriage should not be enforced through the threat of criminal prosecution and punishment. It should be the product of negotiation by the spouses since after all one of the essential requisites of marriage is consent freely given by them.^.[12]

5.    The penalization of marital infidelity is an undue exercise of police power. While through police power, the State may regulate liberties, the purpose of such regulation must be the common good. What common good is realized when a philandering wife or husband  is put to jail?

6.    Decriminalization does not necessarily leave the aggrieved spouse without recourse. S/he can file an action for legal separation. If the infidelity is  serial and inveterate and of such nature that it manifests psychological incapacity, the aggrieved spouse may go to court to file an action for declaration of nullity of marriage. S/he may also file an action for civil damages. In case the aggrieved is a wife, she may file a criminal action and/or a civil case based on Republic 9262 or the Anti-Violence Against Women and their Children Act of 2004.

7.    The criminalization of marital infidelity has not been shown to contribute to the preservation  of  marriage and  has not been demonstrated  to deter infidelity. For instance, despite penalizing marital infidelity from 1953 until very recently to protect women from divorce to which they were vulnerable owing to their lower status than men, South Korea witnessed its  divorce rate shoot up in the last 15 years and is now among the highest in Asia.^[13] Note that non-Muslim Asian countries, with the exception of Taiwan and the Philippines, do not penalize marital infidelity.  How come South Korea has raced ahead of them in divorce rates?

8.    Gabriela Women's Party-List’s   records reveal that criminal complaints for adultery and concubinage are filed in practice as "bargaining suits" or leverage to make the other spouse cooperate in the action to dissolve the marriage or to capitulate to demands for support.^[14] These complaints are not brought to their logical conclusion since, “while pursued in the initial stages, (they) are often withdrawn or dismissed.”^[15] According to statistics, married people resort to court action more to dissolve their marital unions than to seek penal  vindication of adultery or concubinage.^[16] If this is the case, then the law criminalizing adultery and concubinage which may be initiated at the instance of the offended party, does not serve its purpose or has been rendered functus officio. So why maintain it in the statute books?

^9.       States’ practice indicates the abandonment of infidelity as a criminal offense on the belief that it is their obligation to do it under international law or in honor of individual privacy rights. The recognition of marital infidelity as a non-criminal offense by many members of the international community  might have ripened into customary international law. All the Western countries have decriminalized adultery, with the exception of the United States where adultery is still penalized in 21 States^.[17] In Asia, only the Philippines and Taiwan among non-Muslim countries still penalize marital infidelity^.[18] Those decriminalizing it are justifying their actions invoking treaty obligations or constitutional limitations.

10. Many of the arguments against decriminalization are based on religious dogmas which the State, as  a secular entity, need not enforce.

D.   Arguments Against Decriminalization

^1.       Decriminalization destroys the nature of ”marriage (a)s a special contract and a three-party agreement that involves the husband, the wife and the State.” This means “that although the personal rights of the spouses are involved in cases of infidelity, the State also considers itself as an offended party, not because of a breach of public order but because of the violation of marital vows which the State itself protects.“^[19]

^2.       “Striking them (adultery and concubinage) off the catalogue of crimes will send the message to Philippine society that now, sexual liaisons  and dalliances with persons other than with one’s spouse are now allowed? How can such a legislative proposal ‘protect and strengthen the family as a basic social institution?’^[20]

3.    “Under our VAWC Law--passed as domestic legislation in response to international covenants, the CEDAW as well as the CRC among them--we consider violence not only physical but psychological cruelty. What can be more cruel for a spouse than to have the other sexually engaged with another and entering into intimate liaisons with another? How can it serve legal coherence for us to de-criminalize under one title what we consider criminal cruelty and violence under another?”^[21]

4.     Decriminalization is a public health issue. Without a law criminalizing marital infidelity, married people may be wont to be unfaithful and may acquire Sexually Transmitted Diseases (STDs).  Since most married couples do not routinely use barrier contraceptives,  innocent spouses may be infected with STD.

E.     Policy Proposals

1.    Adultery and concubinage should be decriminalized for reasons explained in the arguments in its favor. Although there are arguments against it, these are parried by the arguments supporting it. Other arguments border on the absurd and stand on their own demerit.

2.    However, as a companion to the repeal of the marital infidelity provisions of the Revised Penal Code, there is a need to  enact a divorce law that paves  a way out for people trapped in marriages debased or perverted by marital infidelity. The two remedies —annulment and declaration of nullity- available to people seeking marital dissolution  address only issues of validity and nullity of the marriage. Infidelity is not a validity issue. While it is a ground for legal separation, this is an insufficient remedy for the aggrieved spouse as it does not sever the marital ties.  Infidelity is an indication that a foundation of marriage which is trust or fidelity is disappearing or is no longer present. The marriage may no longer exist except in name only. Divorce must be made available to dissolve the marriage.

3.    In order to settle concerns that the decriminalization of adultery and concubinage will encourage or abet licentious sexual lifestyle on the part of married people, marital infidelity should be treated as a matrimonial offense and be meted out civil penalties in proceedings for legal separation or divorce. Thus,   in the determination of custody of children, division of properties, or support in the event of legal separation or divorce, a spouse’s infidelity should be factored in. As marital infidelity will still produce adverse legal consequences short of criminal punishment, spouses may be deterred from committing it.

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[1] Gangothri.org, Adultery: Indian Legal Perspective, 10 April 2013. Retrieved from http://www.gangothri.org/?q=node/6; See also, Sec. 497 of the Indian Penal Code. (“Whoever  has sexual intercourse with a person who is and  whom he  knows or  has reason  to believe  to be  the wife  of another man,  without the  consent or  connivance of  that  man,  such sexual intercourse  not amounting to the offence of rape, is guilty of the offence  of adultery,  and shall  be punished with imprisonment of either description  for a term which may extend to five years, or with fine, or  with both.  In such case the wife shall not be punishable as an abettor.”)

[2] 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.

[3] The 1987 Philippine Constitution states as one of its principles, as follows:

 Section 3. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.

[4] G.R. No. L-6300, 2  March  1911. 

[5] Evans v. Murff, 135 F. Supp. 907, 911 (1955)

[6] Supra n. 2.

[7] Id.

[8] Supra n. 3.

[9] Supra n. 2.

[10] Id.

[11] Rep. Emmi De Jesus, during the House of Representatives Committee on Revision of Laws Meeting on 17 March 2015, in The Pros And Cons Debate: Should RPC Article 333 on Adultery & Article 334 on Concubinage Be Amended or Repealed? (Author unknown) (On file with author)

[12] See Art. 2, Family Code of the Philippines.

[13] Supra, n. 12.

[14] Dionisio P. Tubianosa, Repeal discriminatory provisions on extra marital affairs in the Revised Penal Code, House of Representatives, Congress of the Philippines, 27 May 2014. Accessed from: http://congress.gov.ph/press/details.php?pressid=7894.

[15] Id.

[16] Rep. Barry Gutierrez, House of Representatives Committee on Revision of Laws Meeting, 17 March 2015, in The Pros And Cons Debate: Should RPC Article 333 on Adultery & Article 334 on Concubinage Be Amended or Repealed? (Author unknown) (On file with author)

[17]New Hampshire Senate votes to repeal anti-adultery law,  accessed from: http://www.usatoday.com/story/news/nation-now/2014/04/17/anti-adultery-laws-new-hampshire/7780563/.

^18] In  Indian law, adultery may be committed only by a man who engages in sex with the wife of another man who did not consent to the act. See, Gangothri.org, Adultery: Indian Legal Perspective, 10 April 2013. Retrieved from http://www.gangothri.org/?q=node/6. See also, Sec. 497 of the Indian Penal Code (stating, "Whoever  has sexual intercourse with a person who is and  whom he  knows or  has reason  to believe  to be  the wife  of another man,  without the  consent or  connivance of  that  man,  such sexual intercourse  not amounting to the offence of rape, is guilty of the offence  of adultery,  and shall  be punished with imprisonment of either description  for a term which may extend to five years, or with fine, or  with both.  In such case the wife shall not be punishable as an abettor.")

[19] Philippine Commission on Women, Policy Brief No. 3, Addressing the Inequality in our Penal Law on Adultery and Concubinage: Enacting The Anti-Marital Infidelity Law. See also, Domini M. Torrevillas,  “Amending the marital infidelity law,” From The Stands, The Philippine Star,  June 30, 2015, accessed from: http://www.philstar.com/opinion/2015/06/30/1471565/amending-marital-infidelity-law

[20] Catholic Bishop Conference of the Philippines, accessed through

http://cbcpwebsite.com/Messages/divorce.html)

[21] Id.