(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.
[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.
