Sunday, March 30, 2008

Adultery, concubinage, marital infidelity, and psychological violence

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,
  • 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 due to marital infidelity 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 ranges from 2 years, 4 months and 1 day to 4 years and 2 months imprisonment. The maximum period ranges 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.

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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,

(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.

Free PDF newsletter on adultery, concubinage, marital infidelity and psychological violence under RA 9262(Note: Click the picture to download a free PDF newsletter on this topic.)

Inequalities in the law and discrimination against women

The provisions of the Revised Penal Code are stacked against the wife. 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.

What’s the reason for this inequality (the heavier penalty for the wife) under the Revised Penal Code? Well, the law seeks to prevent the introduction of spurious heirs into the family, which can happen in adultery, not in concubinage.

Because 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 detailed discussion on what psychological violence is, please read Hope and help for the battered woman (4): Emotional abuse/psychological violence in my Salt and Light blog.)

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 Children’s 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 Children’s Desk (VAWCD) Tel. Nos.: (02) 523-8231 loc. 3403

DOJ Public Attorney’s Office Women's Desk
Tel. Nos.: (02) 929-9010; 929-9436 to 37

Philippine General Hospital (PGH) Women’s Desk Tel. Nos.: (02) 524-2990; 521-8450 loc. 3816

Women’s 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?

Please read my Salt and Light blog articles on the issue of marital infidelity:

Surviving Marital Infidelity
The grass is not greener on the other side

Sad Movies Always Make Me Cry

Marital infidelity: causes, consequences and conclusions
Priceless counsel from a bargain sale book: “How to save your marriage alone”