ADULTERY AND CONCUBINAGE Definition: What is concubinage?

Concubinage is committed by any husband who shall keep a mistress in the conjugal dwelling, or, shall have sexual intercourse, under scandalous circumstances, with a woman who is not his wife, or shall cohabit with her in any other place (Article 334 of the Revised Penal Code or RPC). What is adultery? Adultery means the carnal relation between a married woman and a man who is not her husband, the latter knowing her to be married, even if the marriage be subsequently declared void (RPC, Article 333). Each sexual intercourse constitutes a crime of adultery. Discussion on these concepts: CONCUBINAGE Art. 334. Concubinage. Any husband who shall keep a mistress in the conjugal dwelling, or shall have sexual intercourse, under scandalous circumstances, with a woman who is not his wife, or shall cohabit with her in any other place, shall be punished by prision correccional in its minimum and medium periods. I. How committed/Concept: The crime committed by a married man who: 1. Shall keep a mistress in the conjugal dwelling a). the concubine must live in the conjugal dwelling even for brief periods of time, and not where she occasionally comes for a tryst or to spend the night therein 2. Shall have sexual intercourse with her under scandalous circumstances a). Proof of sex is not necessary but may be inferred b). There be a public or open flaunting of the illicit relationship so that the public is scandalized, shocked, or the conduct give rise to general protest, or that the relationship sets a bad example. c). Example: being seen with the woman in social and public gatherings; introducing or treating the woman as though she were the wife d) Since public reaction is gauge of the scandal is there concubinage if: (i) openly going out is in places where the two are total strangers (ii) relatives and acquaintances accept the fact of the relationship, as when the wife left the man who now is cared and loved by another woman? 3. Cohabit with her in any other place a). To cohabit is to live together as husband and wife. b) QUESTION: Is concubinage committed by the man in providing the woman her own house or apartment but does not live with her though he regularly visits her thereat, at which time they engage in sex? II. Unlike in adultery, the fact of criminal conversation or sexual intercourse with a woman does not per se give rise to concubinage. Further, each sexual act is not a separate offense because concubinage is treated as a continuing crime. Note: In adultery the penalty is the same for both the woman and man (Prision correctional medium and maximum) but in concubinage the penalty for the man is lower by one degree ( prision correctional minimum and medium) while the concubine is given a separate penalty which is"destierro". What is destierro? Destierro means banishment or only a prohibition from residing within the radius of 25 kilometers from the actual residence of the accused for a specified length of time. It is not imprisonment. III. The woman is liable if she knows him to be married (even if unhappily at that and even if her purpose is to provide comfort and companionship) IV. The defenses available in adultery also apply such as consent and pardon. ADULTERY Art. 333. Who are guilty of adultery?

I. Concept: The crime committed by a married woman who shall have sexual intercourse with a man not her husband, and by the man who has carnal knowledge of her, knowing her to be married A. The gist is actual sexual intercourse and not just mere romantic dating, or petting or kissing B. There is no frustrated stage: it is either that the accused were able to engage in sex or not. C. It is not a continuing crime because each separate sex act on a different occasion is a different and a separate crime. D. This may be committed when a married woman marries a second time without the first having been judicially annulled or voided. Her liability is in addition to bigamy. II. The Judicial validity of the womans marriage is not material. It is enough that there was a marriage which has not yet been annulled or declared null and void. III. Rationale: A. The possibility of introducing spurious heirs B. Violation of the marriage vows and the sanctity of the marriage based on the exclusivity of the sexual partner. Defenses in Adultery A. Pardon by the offended spouse if (1) given to both the guilty parties and (2) prior to the institution of the criminal action B. Pardon may be express or implied, as by sleeping with the woman despite knowledge of the adultery (Pardon of the Act) C. Consent given prior to the adultery, such as in mutual agreement to separate and to live with another partner D. Recrimination or mutual infidelity is merely mitigating E. The fact that the woman is legally separated from the husband is no defense. IV. Principles in the Prosecution of Adultery A. Direct evidence is not necessary as adultery may be implied from the circumstances of time, place and occasion B. There may be a separate trial for the man and the woman C. The man may be acquitted if he did not know the woman is married D. If the man is married, he may also be liable for concubinage and the married woman man may also be charged as a concubine V. Special Extenuating Circumstance of Unjustified Abandonment A. The penalty is at least one degree lower B. The essence is that the woman was forced to commit adultery by reason of extreme necessity which refers to economic necessity and the need for survival, such as providing for the shelter and sustenance of her abandoned family. Adultery shall be punished by prision correccional in its medium and maximum periods. If the person guilty of adultery committed this offense while being abandoned without justification by the offended spouse, the penalty next lower in degree than that provided in the next preceding paragraph shall be imposed. Who can file the action for adultery or concubinage? Only the offended spouse can legally file the complaint for adultery or concubinage. The marital status must be present at the time of filing the criminal action. In other words, the offended spouse must still be married to the accused spouse at the time of the filing of the complaint. Who must be prosecuted? The offended party cannot institute the criminal charge without including both guilty parties (the offending spouse and the paramour), if both are alive. What is the effect of consent or pardon by the offended spouse? The criminal charge cannot prosper if the offended spouse has consented to the offense or pardoned the offenders. Pardon can be express or implied. An example of express pardon is when the offended party in writing or in an affidavit asserts that he or she is pardoning his or her erring spouse and paramour for their act. There is implied pardon when the offended party continued to live with his

spouse even after the commission of the offense. Pardon must come before the institution of the criminal action and both offenders must be pardoned by the offended party. Summary: [1] Under the Revised Penal Code, adultery cannot be committed by the husband; it is a crime committed by the wife and her paramour. [2] Concubinage is committed by a husband in several ways: by keeping a mistress in the conjugal dwelling; or by having sexual intercourse under scandalous circumstances with a woman who is not his wife; or by cohabiting with his mistress in any other place. [3] If a husband wants to file an adultery case against his wife, he must also charge the paramour. In the same way, a wife must file the case for concubinage against her husband and his mistress; she cannot charge the mistress alone. [4] Maximum penalty for adultery is imprisonment of six years. Maximum penalty for concubinage for the husband is four years and one day; penalty for the mistress is destierro (exile). [5] Since concubinage is difficult to prove in court, the wife should instead file a case of psychological violence under RA 9262. [6] The penalty for "psychological violence" under RA 9262 is a minimum of six years up to twelve years of imprisonment. The maximum penalty is imposed if the violence is committed by the husband or the intimate partner against the woman when she is pregnant or in the presence of their children. Adultery cannot be committed by the husband; it is a crime committed by the wife and her paramour The Revised Penal Code defines adultery in Article 333: Adultery is committed by any married woman who shall have sexual intercourse with a man not her husband and by the man who has carnal knowledge of her knowing her to be married, even if the marriage be subsequently declared void. Adultery shall be punished by prision correccional in its medium and maximum periods. What is the penalty for adultery? The medium period of the penalty for adultery is from 2 years, 4 months and 1 day to 4 years and 2 months imprisonment. The maximum period is from to 4 years, 2 months and 1 day to 6 year imprisonment. Simply stated, the longest time a wife will be imprisoned is 6 years. What is concubinage? The Revised Penal Code defines and penalizes concubinage in Article 334: Any husband who shall keep a mistress in the conjugal dwelling, or shall have sexual intercourse, under scandalous circumstances, with a woman who is not his wife, or shall cohabit with her in any other place, shall be punished by prision correccional in its minimum and medium periods. A husband commits concubinage in several ways: (1) by keeping a mistress in the conjugal dwelling; or (2) by having sexual intercourse under scandalous circumstances with a woman who is not his wife; or

(3) by cohabiting with his mistress in any other place. What is the penalty for concubinage? For the husband, the penalty of prision correccional in its minimum period is imprisonment from six months and one day. In its medium period, the penalty is from 2 years, 4 months and one day to 4 years and one day. Simply stated, the longest time that a husband will be imprisoned is 4 years and one day. On the other hand, the penalty for the mistress is destierro (exile), not imprisonment. Why is concubinage difficult to prove in court? In order to charge her husband with concubinage, the wife has to prove that he has committed any or all of the three acts mentioned above. With number (1) above, I think you will agree with me that only a few men would dare to bring or allow his mistress to live in the conjugal dwelling. Not unless, of course, if the wife allows it for whatever reason As to number (2) above, an adulterous affair by its nature is done in secret; a man and his paramour cannot be expected to have sexual intercourse under scandalous circumstances. Now, number (3) above. If a wife seeks legal help in filing a case for concubinage, lawyers will ask her for evidence proving cohabitation. The evidences may be receipts for the apartment for example where the man and mistress are living, receipts for Meralco, PLDT, etc, affidavits of eyewitnesses that the man and mistress are really cohabiting, etc. If the evidence merely proves that the husband is having an extra-marital affair, he cannot be charged with concubinage. If the other woman gets pregnant and gives birth, can it be used as evidence for concubinage against the husband? No, the pregnancy is not necessarily proof of cohabitation. Why? Again, please take note of how concubinage is committed as I discussed under numbers (1) up to (3) above. Inequalities in the law and discrimination against women The provisions of the Revised Penal Code are stacked against the woman. If she commits even just one case of adultery, she, along with the paramour, can be immediately charged criminally. But the husband who commits numerous acts of marital infidelity cannot be sued by his wife for adultery (since under Article 333, adultery is a crime committed by the wife and her paramour). The philandering husband must be sued under Article 334 for concubinage. The problem is, concubinage is much more difficult to prove in court. Since concubinage is difficult to prove in court, it is better to file a case of psychological violence under RA 9262 Republic Act 9262 or the "Anti-Violence Against Women and their Children Act of 2004 has now come to the rescue of women. Philandering husbands can now be charged criminally even for just

ONE incident of marital infidelity under the psychological violence provision of RA 9262. RA 9262 defines psychological violence as:
acts or omissions causing or likely to cause mental or emotional suffering of the victim such as but not limited to intimidation, harassment, stalking, damage to property, public ridicule or humiliation, repeated verbal abuse and marital infidelity. It includes causing or allowing the victim to witness the physical, sexual or psychological abuse of a member of the family to which the victim belongs, or to witness pornography in any form or to witness abusive injury to pets or to unlawful or unwanted deprivation of the right to custody and/or visitation of common children. The penalty for "psychological violence" is a minimum of six years up to twelve years of imprisonment. The maximum penalty is imposed if the violence is committed by the intimate partner against the woman when she is pregnant or in the presence of the common children. For a discussion of marital infidelity from a Biblical standpoint, please surf over to my Salt and Light blog articles at www.-salt-and-light-.blogspot.com.

Pending legislation on marital infidelity

Sen. Richard Gordon and Cong. Joel Villanueva have sponsored bills which seek to eliminate the discrimination against women in the Revised Penal Code. Sen. Gordon, speaking of Senate Bill Nos. 1362 and 1363, stated in a press release:

While dealing with the same basic subject of marital infidelity, adultery and concubinage differ in elements, circumstances, and penalties. One sexual intercourse by a wife with a man not her husband is already adultery, but concubinage can only committed by a husband if he keeps a mistress in the conjugal dwelling, or has sexual intercourse with a woman not his wife under scandalous circumstances, or cohabits with his mistress in any other place. The imposable penalty for adultery, which is from 2 years, 4 months, and 1 day up to 12 years, is also much higher than concubinage, which is only from 6 months and 1 day to 4 years and 2 months. Senate Bill Nos. 1362 and 1363 seek to retain only one of these crimes and repeal the other. The retained crime of either adultery or concubinage will then become marital infidelity that will be made applicable to both husband and wife. This legislative measure implements the State policy under the Constitution on the fundamental equality before the law of women and men. On the other hand, Cong. Joel Villanuevas HB 5729 passed by Congress last December 2006, is an act repealing the law on adultery and concubinage and defining in lieu thereof the crime of marital infidelity. Similar to Gordons bill, HB 5729 seeks to replace the crimes of adultery and concubinage with a single crime that will be defined as marital infidelity and thus totally correcting the disparity in the treatment of cases of a husband or a wife in committing the crimes of concubinage or adultery respectively. Government offices where women can ask for help For RA 9262 and other cases involving women, you can ask for help from the following: Department of Social Welfare and Development (DSWD) Crisis Intervention Unit (CIU) Rehabilitation Unit Tel. No.: (02) 734-8635 NCR Ugnayang Pag-asa, Legarda, Manila Tel. Nos.: (02) 734-8617 to 18

Philippine National Police (PNP) Women and Childrens Concern Division (WCCD) Tel. No.: (02) 723-0401 loc. 3480 Call or text 117 (PATROL 117) National Bureau of Investigation (NBI) Violence Against Women and Childrens Desk (VAWCD) Tel. Nos.: (02) 523-8231 loc. 3403 DOJ Public Attorneys Office Women's Desk Tel. Nos.: (02) 929-9010; 929-9436 to 37 Philippine General Hospital (PGH) Womens Desk Tel. Nos.: (02) 524-2990; 521-8450 loc. 3816 Womens Crisis Center Women and Children Crisis Care & Protection Unit East Avenue Medical Center (WCCCPU-EAMC) Tel. Nos.: (02) 926-7744; 922-5235 Is there life or hope after an extramarital affair? The offense of willfully and knowingly having more than one wife or husband at the same time. The offense of willfully and knowingly entering into a second marriage while validly married to another individual is bigamy. Polygamy means having more than one wife or husband at the same time, usually implying more than just two (which is "bigamy")