Adultery and concubinage under the Revised Penal Code; marital infidelity and psychological violence under RA 9262

Update as of April 25, 2018: “SC recognizes divorce in marriage with foreigners” (Rappler) The Supreme Court (SC) en banc issued a landmark ruling on Tuesday, April 24, recognizing divorce in marriages with foreigners. Voting 10-3-1, the SC en banc ruled “that a foreign divorce secured by a Filipino against a foreign spouse is also considered valid in the Philippines, even if it is the Filipino spouse who files for divorce abroad.” 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: (a) by keeping a mistress in the conjugal dwelling, (b) by having sexual intercourse under scandalous circumstances with a woman who is not his wife; or (c) 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. The heaviest penalty for adultery is imprisonment of six years (for the wife and her paramour). On the other hand, the heaviest penalty for concubinage is four years and two months (for the husband) and “destierro” or exile (for his mistress). 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. 7. Implications of the Supreme Court ruling on conspiracy in “Sharica Go-Tan case”: Can you file an RA 9262 case against your unfaithful husband AND his mistress? 8. Update as of December 2, 2018: House Bill No. 8604 seeks to remove the crimes of adultery and concubinage from the Revised Penal Code and to replace them with the crime of “sexual infidelity.” The Philippine Commission on Women recommends the decriminalizing of adultery and concubinage.

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 one day to 4 years and 2 months imprisonment. The maximum period ranges from to 4 years, 2 months and one 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 6 months and one day to 2 years and 4 months. In its medium period, the penalty is from 2 years, 4 months, and one day to 4 years and 2 months. Simply stated, the longest time that a husband will be imprisoned is 4 years and 2 months.

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 that proves cohabitation. The evidence may be receipts for the apartment where the man and mistress are living, receipts for Meralco and PLDT, and 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.

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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 marital infidelity, 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’s better to file a case of psychological violence under RA 9262

Can you file a case of conspiracy to commit RA 9262 against your unfaithful husband AND his mistress? “Sharica Mari Go-Tan vs. Spouses Perfecto Tan and Juanita Tan” G.R. No. 168852, September 30, 2008 Background facts: After six years of marriage and two children, Sharica filed an RA 9262 case against her husband Steven and her parents-in-law Perfecto and Juanita Tan. She also asked the Quezon City Regional Trial Court Branch 94 to issue a TPO (Temporary Protection Order) against her husband and her parents-in-law; she alleged that, in conspiracy with her parents-in-law, Steven was causing verbal, psychological, and economic abuses upon her. In their defense, the parents-in-law claimed that they cannot be charged with violation of RA 9262 because Section 3 of that law explicitly provides that the offender should be related to the victim only by marriage, a former marriage, or a dating or sexual relationship. The Regional Trial Court ruled in favor of the parents-in-law. Sharica thus appealed to the Supreme Court. Issues raised by Sharica before the Supreme Court: Sharica claimed that RA 9262 must be understood in the light of the provisions of Section 47 of RA 9262 which explicitly provides for the suppletory application of the Revised Penal Code (RPC). Accordingly, the provision on “conspiracy” under Article 8 of the RPC can be applied to RA 9262. Sharica claimed that Steven and her parents-in-law had “community of design and purpose in tormenting her by giving her insufficient financial support; harassing and pressuring her to be ejected from the family home; and in repeatedly abusing her verbally,emotionally, mentally, and physically.” Supreme Court ruling: The Court ruled in Sharica’s favor; it stated that the provisions of the Revised Penal Code can be applied suppletorily to RA 9262. Thus, her parents-in-law can be charged as co-conspirators with her husband Steven. Implications of the Sharica Go-Tan ruling on conspiracy: If you’re an abused or abandoned wife, you can file an RA 9262 case against both your unfaithful husband and his mistress. With the proper proof, you can claim that the abusive acts that your husband committed against you were done in conspiracy with his mistress. (This means that, if convicted, the penalty for your unfaithful husband will also be the penalty for his mistress.) Consult your lawyer about the kind of proof that you need.

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.”

What is the penalty for “psychological violence” under RA 9262?

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”

Updates as of December 2, 2018:

A. House Bill No. 8604 (filed by DIWA party-list representative Pepito M. Pico on November 19, 2018) seeks to remove the crimes of adultery and concubinage from the Revised Penal Code and to replace them with the crime of “sexual infidelity.”

Under House Bill No. 8604:

1. “Sexual infidelity” is committed by the unfaithful spouse — either the husband or the wife — with a paramour.

2. The penalty for the unfaithful husband or wife is “prision correccional” in its minimum period (from 6 months and one day to 2 years and 4 months).

3. When the unfaithful husband or wife keeps the paramour in the conjugal dwelling, the penalty is “prision correccional” in its maximum period (from 4 years, 2 months, and 1 day to 6 years).

4. The penalty for the unfaithful husband or wife will be the same penalty for the paramour.

B. “Eliminating Discrimination Against Women in the Revised Penal Code (RPC): Decriminalizing Adultery and Concubinage” by the Philippine Commission on Women:

Adultery and concubinage should be decriminalized or removed from the RPC since they involve violation of marriage contract, hence, liability should only be civil in nature. Taking off adultery and concubinage from the criminal offenses should however, still have the following legal effects:

1. Adultery and concubinage are still unlawful under the Family Code (civil matter), so an aggrieved/offended/victimized spouse can still file for legal separation on the ground of sexual infidelity, or a possible manifestation of psychological incapacity as a ground for declaration of nullity of a marriage;

2. Marital infidelity (concubinage) will continue to be one of the manifestations of psychological violence against women under RA 9262 (Anti-Violence Against Women and Their Children Act), a special law that protects women and their children from abuses and violence by their intimate partners;

3. Sexual infidelity (adultery or concubinage) will continue to be one of the bases for an aggrieved/offended/victimized spouse to sue for ordinary damages under the Civil Code (i.e. psychological pain and suffering) against the offending/guilty spouse and the third party involved.