The Inequality in The

Warrants revision



I. INTRODUCTION
Discrimination is a widespread issue throughout the world. Likewise, inequality between
men and women is also a contagious problem that all country is facing. Thus, this paper will
provide a solution to end this unfair treatment particularly for the constitutionality of Article 334
of the Revised Penal Code.
Article 334 of the Revised Penal Code provides for the meaning and penalty of
Concubinage. To wit:
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. The concubine shall suffer the penalty of destierro. (The
Revised Penal Code Criminal Law, Reyes, 2008)
Under Article 334, concubinage is committed in three ways, namely: 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 her in any other place. Proving at least one
of these circumstances, suffice the crime of concubinage.
In addition, the offender must be a married man. The woman becomes liable only when she
knew him to be married prior to the commission of the crime. Thus, a married man is liable for
concubinage only when he does any of the three acts specified in Article 334. If his sexual
relations with a woman not his wife is not any one of them, he is not criminally liable (People vs.
Santos, et al., C.A., 45 O.G. 2116)
As the crime providing punishment for extramarital affairs committed by the husband,
Article 334 lends not obedience and prevention but rather tolerance and loopholes in the guise
of the three circumstances in which Concubinage can be committed.
First of the circumstances is keeping the mistress in the conjugal dwelling. Conjugal
dwelling is meant the home of the husband and wife even if the wife happens to be temporarily
absent on any account. (People vs. Cordova, C.A., G.R. No. 19100-R, June 23, 1959, 55 O.G.
1042). A man with common sense would not ordinarily keep or much less let his mistress in the
conjugal dwelling in order to keep his affairs hidden from his wife and family.
The second requisite is when the husband has sexual intercourse under scandalous
circumstances. By nature of his extramarital affair a man would make efforts to keep his affair
discreet. Indeed, the phrase scandalous circumstances is discriminatory and almost difficult or
impossible to prove. The phrase is also a vague and ambiguous phrase which under the statutory
construction should be construed in favor of the accused. It also implies that a man having
extramarital affairs is not wrong nor is it a crime unless it either reaches a status of being under a
scandalous circumstance whereas a woman does not deserve any circumstance for her
extramarital affair to be adultery. Scandalous circumstance also rests upon the people or
neighbors who will judge whether their sensibilities where their sensibilities are offended with
the married man and his mistress sexual relations to render it scandalous. Concubinage is under
Title 11 of Book 2 of Revised Penal Code which classifies it under Crimes of Chastity therefore
is it not enough that the sexual intercourse is repugnant in the eyes of the mans wife, a
defilement of the mans sacred vow of marriage and a desecration of the his and his familys
reputation in addition to the besmirching of the character of the lady he made his mistress. This
is the only Article under the Crimes Against Chastity where an element requires other people
aside from the offended person to prove that indeed the crime is committed. If thats the case
then there really is indeed a need to amend the Revised Penal Code and transfer the crime
Concubinage to Crimes Against Person for it is apparently not a crime against the chastity of
marriage but a crime against the sensibilities of other people who may be named as third party.
The third act by which a husband can commit Concubinage is by cohabiting with a woman
in another place. Cohabitation means to dwell together, in a manner as a husband and wife
(People v. Pitoc) for some period of time which is different from that of occasional, transient
interviews for unlawful intercourse. (Reyes, p.912) This opens an avenue for a man to have
sexual relations with a woman not his wife from time to time without being charged with
Concubinage provided he does not stay with her for long period of time. Instead of absolutely
preventing the commission of extramarital affairs by the husband, the article ensured that a
married man can freely have sexual relations intermittently with a mistress woman without a
consequence.
The needless inclusion of these three acts makes Concubinage an ineffective and
essentially impotent article.
There is a law very similar to the above article, and that law is Article 333, Adultery.
This is specified in Article 333 of the Revised Penal Code, to wit:
Art. 333. Who are guilty of adultery. 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.
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 preceeding paragraph shall be imposed. (The Revised
Penal Code Criminal Law, Reyes, 2008)
The husband may lie with a woman not his wife without committing adultery. Not so the
wife. When she lies with a man not her husband she is guilty of adultery. She, in other words, is,
in reality, the only person capable of committing the crime of adultery under the law of the
Philippine Islands. (US v. Topino, G.R. No. 11895)
A married man might not be guilty of adultery, on the ground that he did not know that the
woman was married, but if he appeared to be guilty of any of the acts defined in Article 334, he
would be liable for concubinage. (Del Prado vs. Fuerte, 28 Phil. 23)
However, the married woman is guilty of adultery. If she knew that the man was married,
she would be liable for concubinage also.)
They also differ in the scope of the law. Firstly, the penalties for both crimes are different.
In Adultery, it is stated that if married woman commits adultery, she will face a maximum of six
years imprisonment. Unlike the husband who commits concubinage will only face a maximum of
4 years and one day. Also, the penalty of the concubine when she is caught committing
concubinage is only destierro while the penalty of the adulterer is the same with the penalty that
is given to the accused wife.
Secondly, when a husband sleeps with another woman who is not his spouse, there is a
possibility that he will not be called committing concubinage, whereas when a wife sleeps with
another man she is to be said committing adultery and can be imprisoned at that moment.
Thirdly, adultery is not a continuous offense, meaning, the husband can file separate cases
for each and every time his wife and another man are caught having sexual intercourse. But in
concubinage, only one crime is counted if the husband and his concubine committed
concubinage.
Lastly, one sexual intercourse by a wife with a man not her husband is already adultery,
while concubinage is committed by a husband, only when he keeps a mistress in the conjugal
dwelling, has sexual intercourse under scandalous circumstances with a woman not his wife, or
cohabits with a concubine in any other place. Thus, if the husbands sexual relations with a
woman not his wife does not fall in any one of these circumstances, he is not criminally liable,
unlike the wife where all it takes for her to be criminally liable is one sexual intercourse with a
man not her husband. Therefore, the law makes the crime of concubinage more difficult to
establish. That is why a lot of wives are forced to file a case of psychological violence under RA
9262 instead.
II. BODY
A. Constitutional Aspect
Section 1 Article 3 of the 1987 Constitution guarantees equal protection of the laws.
According to the noted Constitutionalist, Fr. Joaquin G. Bernas, S.J., in his book entitled The
1987 Constitution, A Comprehensive Reviewer, the equality it guarantees is equality of all
persons before the law. Under it, each individual is dealt with as an equal person in the law,
which does not treat the person differently because of who he is or what he possesses. The
goddess of justice is portrayed with a blindfold, not because she must be hindered in seeing
where the right lies, but she may not discriminate against suitors before her, dispensing instead
an even handed justice to all.

Furthermore, it is the policy of the State to ensure the fundamental equality before the law
of women and men. While significant changes in legislation have been made since the
declaration of this State policy under the Constitution, the crimes of adultery and concubinage in
the Revised Penal Code, which manifestly show unequal treatment of husband and wife, still
remain.
The unequal treatment of husband and wife in the crimes of adultery and concubinage is
plain and obvious. The law on Concubinage clearly violates the equal protection clause since the
law does not give equal credence to the husband and the wife. Section 1, Article III of the 1987
Constitution provides that no person shall be deprived of life, liberty or property without due
process of law, nor shall any person be denied of equal protection of the laws. Thus, husband
and wife must be governed by the equal protection of laws.
In Himagan Vs. People, the requisites of equal protection clause are provided, namely: the
classification is based on real and substantial differences; is germane to the purpose of the law;
applies to all members of the same class; and applies to current as well as future conditions.
Hence, the Concubinage does not follow the requisites of the equal protection clause on the
grounds that it does not apply to all members of the same class.
Furthermore, the said law must be viewed within the context of the constitutional mandate
to ensure gender equality, which is quoted as follows:
Section 14. The State recognizes the role of women in nation-building, and
shall ensure the fundamental equality before the law of women and men.
Thus, husband and wife must be treated alike.
B. Civil Aspect
Marriage is a special contract of permanent union between a man and a woman entered
into in accordance with law for the establishment of conjugal and family life. It is the foundation
of the family and an inviolable social institution whose nature consequences, and incidents are
governed by law (Art 1, Family Code)
Marriage is definitely for two loving adults who view the relationship with amor gig nit
amorem respect, sacrifice and a continuing commitment to togetherness, conscious of its value
as a sublime social institution.
The husband and wife are obliged to live together, observe mutual love, respect and
fidelity, and render mutual help and support. (Art. 68, Family Code)
When one of the neglects his or her duties to the conjugal union or commit acts which tend
to bring danger, dishonor or injury to the other or to the family, the aggrieved party may apply to
the to the court for relief. (Art. 72, Family Code)

Though the courts may not coerce one spouse to live with the other, the courts may
however provide remedies and sanctions. Such as when a spouse abandons another, the
aggrieved spouse may petition the court for receivership, for judicial separation of property or
for authority to be the sole administrator of the absolute community or of the conjugal
partnership property. Upon a judicial declaration of abandonment of his or her children, the
parent concerned may likewise be deprived of parental authority. The deserted spouse cannot
likewise be obliged to give support to the other spouse who refuses to live with him or her
without just cause.
The Family Code also considers sexual infidelity as a ground for legal separation under
Art. 55, paragraph 8. Legal separation does not dissolve the marriage tie, does not authorize the
parties to remarry but allows both spouses to live separately from each other.
The right to live together also includes the right to demand sexual intimacy from the other
spouse. One of the essential marital obligations under the Family Code is to procreate children
based on the universal principle that procreation of children through sexual cooperation is the
basic end of marriage. (Chi Ming Tsoi v. CA)
The husband and wife are obliged to render mutual help and support. In short, the marriage
relation imposes upon the spouses the obligation to support each other. The ordinary meaning of
spouse is ones legal husband or wife. The one entitled to support are the legitimate spouse.
Previously, Article 53(8) rests upon Article 333 and Article 334 which means that for
sexual infidelity to exist the crime of adultery or concubinage must first be proven. By virtue of
the amendment sexual infidelity can now be committed by a single act of sexual intercourse on
the part of the husband and wife with a person other than their spouse. Even when sexual
infidelity as a ground for legal separation was revised, there is still a need to revise the crime of
Concubinage. The particular reason for the revision of Article 55(8) was that a disparity exist
between Article 333 and Article 334 causing this ground to be extremely difficult in the part of
the offended wife. Altering the provision of sexual infidelity in legal separation is an admission
of the inequality between the two crimes. However this revision only serves an emphasis that
between the two crimes there still exist blatant inconsistencies that was not rectified.
The Ninal vs. Badayog case exemplifies the kind of ridiculous legal effects of having
extramarital affairs. Pepito Ninal was married to Teodulfa Bellones who bore him four children
and who was later shot by Pepito himself. A year and eight months later, Pepito and Norma got
married while executed an affidavit stating they do not need a marriage license for they lived
together as husband and wife for five years. When Pepito died, his child from Teodulfa
challenged Normas claim to their fathers inheritance. The issue in relation of this case with the
paper is that the Cohabitation period of a man and woman needs to be a continous 5 year
exclusive cohabitation with each other. This means that from the Pepito and Norma basically
admitted that they were living as husband and wife for years while Pepito was still legally
married with Teodulfa.

The provision that the manknowing her to be married implicitly declaring that a man
is innocent and is not liable for adultery while in Article 333 the three acts of which a man can be
liable to the crime of adultery functions as a reasons for which a man escapes punishment for
having extra-marital affair. Provisions to safeguard womens interest and rights were merely
added as an afterthought such as through the result of Supreme Court rulings.
The law as it is worded presently, turns a blind eye to the absurdity of the situation
produced by these two incongruous crimes. A married man may be proven to have fathered a
child with a woman not his wife and he will still not be guilty of concubinage, such case
transpired in People v. Benlot.
The book of Reyes admits that Concubinage is more severely punished than concubinage
and then further admits that both crimes are a violation of the marital vow. Reyes then
differentiated adultery from concubinage in the sense that infidelity of the husband does not
bring into the family, spurious offspring. However, this is remiss owing to the fact that the
husband does not, indeed, bring spurious child into his family but he can however impregnate his
mistress and father illegitimate children. Born out of parents who are not legally married,
illegitimate children are granted with successional rights by the Civil Code and is entitled to the
legitime. Art. 886. Legitime is that part of the testator's property which he cannot dispose of
because the law has reserved it for certain heirs who are, therefore, called compulsory heirs.
The law in taking into consideration the social norms to draft these crimes seemingly
remembered to lay down provisions to protect human beings of the male gender. The Philippines
is a patriarchal society in general and though women are rising to equal ranks in job employment
and opportunity it is still primarily the men who are expected to provide financial sustenance for
the family. In this case would not the married man who have extramarital affairs with another
woman would be expected to provide financial support to that woman and to the children he may
bring into the world. The salary of the philandering husband would be divided to allocate for his
mistress and their children if any, which will diminish the rightful subsidy for his legal family.
Article 70 of the Family Code provides that the spouses are jointly responsible for the support
of the family. And since the men are the prevalent breadwinner of the family.
In the case of Cabahug-Mendoza vs. Varela, wherein the husband maintained illicit
amorous relation with his paramour and wasted the family fortune on her the wife may ask for
the administration of conjugal property be given to her while not asking for legal separation.
Children, whether legitimate or illegitimate, are entitled to be supported by their parents.
However, the support go illegitimate children is chargeable to the separate property of the person
obliged to give support. In case the person obliged to give support has no separate property, the
absolute community or the conjugal partnership, if financially capable, shall advance the support
which shall be deducted from the share of the spouse obliged upon the liquidation of the absolute
community or of the conjugal partnership.
The obligation of the parents to give support and the corresponding right of the children,
whether legitimate or illegitimate to receive support do not proceed from, nor based upon, the
exercise of parental authority. An illegitimate father is also obliged to give support even when
parental authority is exercised by the mother.
These factors increase the discrepancy and bias of a wife and a husband, creates
detrimental effects for the family. The Adultery and Concubinage is a public crime. It is
something that is against society. Even though the Civil Code acknowledged the discrimination
of a wife from a husband, the amendment reflects the present societys views on common law
relationship. We are not wishing to deny these rights but we question the presence of these rights
in the Civil Code.
C. Gender Equality (please revise and paraphrase)
Adultery has its roots from when women where considered property of the men. Ancient
civilization punished the womens marital infidelity with inhumane punishment. Such as the
Aztecs stoning to death a woman who committed marital infidelity. Romans provide punishment
for adultery of women while men were provided with legal immunity. The Roman concept of
patria potestas allowed the husband to beat, or even kill, his wife if she endangered his property
right over her. Judaism, Christianity and other religions oriented towards the patriarchal family
strengthened the male dominated structure of society. English feudal law reinforced the tradition
of male control over women. Even the eminent Blackstone has been quoted in his commentaries
as saying husband and wife were one and that one was the husband. Society before gave the
basis of our concept that the extramarital affair of woman is wrong. Virginia Wolf said in the
1920s which is still relevant today "It is obvious that the values of women differ very often from
the values which have been made by the other sex. Yet it is the masculine values that prevail"
We keep mistresses for our pleasures, concubines for constant attendance, and wives to bear us
legitimate children and to be our faithful housekeepers. attributed to Demosthenes.

In this passage on infidelity in marriage, the author postulates that the infidelity of a
husband, though also reprehensible, always had less serious social consequences than that of a
wife. The argument was based on the fact that public roles (i.e., outside of the family) were
ascribed exclusively to men. On this basis, womens infidelity was more contemptible because
it undermined basic family values and could not be reconciled with existing social mores.
Philippine culture before had greatly vindicated a woman who would have infidelities
while praising or tolerating a man who would have extramarital affairs. Consider Filipino culture
where male infidelity is still, sadly, seen by some as a sign of virility and female domination, a
study by Jocano (1994), indicates that, to most (Filipino) men, many of their flings or affairs are
just pastimes and should not be taken seriously. They mean nothing. But not to women; they all
mean very much to them. According to a release from the , marital infidelity is a major stressor
among Filipino couples, with about 36% of men and 2% of women engaging in extra-marital
affairs in the country. An overwhelming 96% of Filipinos disapprove of extramarital relations
(*Daylo-Laylo and Montelibano, 2000). While the wife needed attention and loyalty from her
husband as she conscientiously performed her duties, the husband was more interested in
activities outside of the familys scope, such as looking for jobs or for diversions in the form of
extramarital relationships. While more men were engaged in extramarital relations, a husband is
less tolerant or less forgiving when his wife becomes unfaithful. Lapuz (1977) comments that
men can have sex outside the marriage, women should remain chaste. Lacar (1993) found that in
his study of 769 respondents, "the idea of separation was initiated by the fathers 46.7 percent of
the time; while the mothers did so only 19.5 percent of the time."
the full and complete development of a country, the welfare of the world and the cause
of peace require the maximum participation of women on equal terms with men in all fields -
UN Women
In foreign countries the law in adultery is much more common that Concubinage and is the
term used for the infidelity of both married parties. In Australia, for example, affairs of two or
more years duration can be deemed a de facto relationship, exposing the married cheater to
financial claims in the Family Court on their superannuation savings, income and property. All
countries in Europe have decriminalized infidelity when married, however many countries in
Africa have criminalized this type of infidelity. In Danish society, having sex does not
necessarily imply a deep emotional attachment. As a result, infidelity does not carry such a
severe negative connotation.
Adultery laws have usually been drafted and almost always implemented in a manner
prejudicial to women. Provisions in penal codes often do not treat women and men equally and
establish harsher sanctions for women, and in some countries, rules of evidence value womens
testimony as half that of a man's.
According to The New York Times the most consistent data on infidelity comes from the
University of Chicago's General Social Service(GSS). Large-scale interviews conducted since
1972 by the GSS of people in monogamous relationships reveals that the number of men
admitting to extramarital affairs is 12 percent and for women, 7 percent.
Families are constructed around relationships that involve obligations and responsibilities,
but also status and power.
The National Health and Social Life Survey found that 4% of married men, 16% of
cohabiting men, and 37% of dating men engaged in acts of sexual infidelity compared to 1% of
married women, 8% of cohabiting women, and 17% of women in dating relationships (Lalasz &
Weigel, 2011).
In addition, recent research finds that differences in gender may possibly be explained by
other mechanisms including power and sensations seeking. For example one study found that
some women in more financially independent and higher positions of power, were also more
likely to be more unfaithful to their partners (Lammers, Stoker, Jordan, Pollmann, & Stapel,
2011). In another study, when the tendency to sensation seek (i.e., engage in risky behaviours)
was controlled for, there were no gender differences in the likelihood to being unfaithful (Lalasz
et al., 2011). These findings suggest there may be various factors that might influence the
likelihood of some individuals to engage in extradyadic relationships, and that such factors may
account for observed gender differences beyond actual gender and evolutionary pressures
associated with each.
Anthropologists tend to believe humans are neither completely monogamous nor
completely polygamous. Anthropologist Bobbi Low, says we are "slightly polygamous";
Deborah Blum, though, believes we are "ambiguously monogamous," and that we are slowly
moving away from the polygamous habits of our evolutionary ancestors.
SIBOL argues that this legal double standard is based on womens child-bearing ability
and mens claims of natural sexual needs or drive, which are the same justifications used to
maintain prostitution. men offend at much higher rates than women for all crime categories
except prostitution. Here we can see the discrepancy that men enjoy the freedom of availing
himself of a prostitutes services without criminal liability whereas the crime of prostitution is
solely blamed to the woman.
The bottom line here is "human nature" is not an excuse to have an affairPart of being
human and living in society is the capacity to control instincts, and not have them control us.
In marital relationships, exclusivity expectations are commonly assumed although they are
not always met. When they are not met, research has found that particular psychological damage
including feelings of rage and betrayal, lowering of sexual and personal confidence, and damage
to self-image can occur (Leeker et al., 2012)
An interesting observation is made by Villacarlos-Berba (2000) on another marital pattern
of infidelity as a domestic abuse. She notes that the emotional trauma inflicted on the "victim"
wife is worse than the physical abuse. She says: "it results in humiliation, hurt, rejection and loss
for the injured partner since it attacks the persons self-worth and ego."
The children feel a "sense of incompetence and unworthiness. They feel rejected, anxious
and insecure." On the other hand, the adulterous men downplay familial and moral consequences
because they rationalize that infidelity is natural for men, they do not stop their role as economic
providers, and they absolve themselves by saying they still come home to their legitimate family.
Some of them project their guilt onto their wives who they say fail to accommodate and
sacrifice. The unfaithful husband feels a loss of self-respect, personal integrity, peace of mind
and self-esteem. The illegitimate children bear the "unmerited stigma of being the fruit of
immoral behavior." Mistresses feel that the queridas (mistresses) and the illegitimate children are
losing most in the adultery of the Filipino husband. Alano reports the feelings of the mistress:
"The mistress submits to being less than number one, resigned to being lonely on holidays and
special occasions knowing that her lover is out in public with his wife and family.
There are several aspects where discrimination against women exist the general focus of
which are the economic status, access to education and health and political participation or
empowerment. Although there has been disregard to the prejudicial conduct towards women
within the civil domain with regards to social norms, traditions and the context of family, it does
not mean that these deplorable treatment does not exist. Acknowledgement is one thing there
must be action towards the implementation of the recognized injustice.


III. CONCLUSION
The two articles that penalize the breaking of marital vows are discriminatory and is a
violation of the Equal Protection Clause. What we are trying to prevent here is the double
victimization of the offended party - first at the hands of the offender and then of the legal
system.
When a spouse has engaged in an extra-marital affair, the offended spouse can file for legal
separation under the ground of sexual infidelity. This is a civil case and the remedy will result to
the separation of the wife and the husband.
The next best thing to do is to resort to the special crime of marital infidelity under the
Psychological Violence provision of RA 9262 or the Anti-Violence Against Women and
Children Act of 2004.
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 is recommended to amend Article 334 of the Revised Penal Code. The amendment can
be made by deleting the phrase under scandalous circumstances and increasing the penalty of
the crime of Concubinage. Removing the phrase under scandalous circumstances results to the
commission of the crime of Concubinage by any husband who shall have sexual intercourse with
a woman not his wife.
Senate Bill 2015 sponsored by Senator Edgardo J. Angara passed on - contains a similar
proposition. Included is the addition of qualifying the penalty for the concubine.
The two succeeding Articles 333 and 334 can be amended to be consolidated into one
single article of Adultery for both married parties with the same requisites, as well as penalty.
Senator Richard Gordon who sponsored two bills with the same purpose had stated in a
press release that:
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.
It is also proposed that in the future amendment of the whole Revised Penal Code that the
crime Concubinage and Adultery be harmonized to remove inequalities that are present.
Inequality exists in the two crimes penalizing marital infidelity.
There is inequality in the two crimes penalizing marital infidelity.