Saturday, November 5, 2016

Adultery & Concubinage: "Adulting"

Sure, marital infidelity is so popular on Philippine TV right now. There are too many shows and movies portraying how glamorous it is to be rich while being in an adulterous relationship or keeping a concubine (kabit) at home. Yes, glamorous! Have you seen any TV shows showing such relationships involving the poor? None. Because being poor and having kabit is not glamorous but the reality is, it is not just ugly, it is fugly straight to the core.

But I digress. A question was asked, what is adultery? What is concubinage? Are these two the same or are they different? 

In a way these two terms are the same in that it refers to marital infidelity. In the light of Philippine Laws (the Revised Penal Code for that matter) let's take a look at the similarities and differences of these two crimes.
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 preceding paragraph shall be imposed.

That's a lot to take in, right. In a nutshell, every crime has elements, the elements in the crime of adultery are:

(1) The woman is married;

(2) She has sexual intercourse with a man not her husband;

(3) As regards the man with whom she has sexual intercourse, he must know her to be married.

If you've noticed, the primary guilty party under this provision of law is the woman. If her sexual partner knows she is married, he too is guilty of adultery. If he doesn't know she's married, he may not be liable under this provision. The second element is that both of them should have had sex. There can be as many charges for adultery against the woman (and the, man if he knows his sex partner is married) for as many times she has had sex with her lover. Can you imagine the paperwork?!

The crime of concubinage on the other hand is as follows:

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 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.

Again, let's simplify this provision using its elements:

(1) The man is married;
(2) he is either-
(a) keeping a mistress in the conjugal dwelling;
(b) having sexual intercourse under scandalous circumstances with a woman not his wife; or
(c) cohabiting with a woman who is not his wife in any other place;
(3) as regards the woman, she knows the man is married.

Again, there are two offenders here. The primary offender is the man, and if his concubine knows him to be married, she will likewise be liable.

Who can file an action against their spouses? Only the offended spouse can initiate a complaint for adultery or concubinage. Your neighbor cannot do it for you. At the time of the filing of the complaint, they must be legally married, otherwise, it would be as if no complaint has been filed, or the case will be thrown out.

Granting that the spouses' sexual partners are not aware that the person they are having sex with are married, for purposes of filing the complaint, they must be joined or included in the complaint or information.

Let's have a little thought experiment here, let us suppose that Husband A and Wife B are legally married. Husband A has a mistress while Wife B likewise has a boytoy for her to sex up as she pleases. Can either one of them say, "you can't file a case against me! You're a hypocrite! You also have your own fuck buddy!" In legal parlance would concept of pari delicto be applicable since both of them have extramarital affairs? The answer is a definite no. Said doctrine is a civil one based on Art. 1411 of the New Civil Code and has no application in criminal cases.

These provisions in the Revised Penal Code are archaic and downright medieval. The penalties provided for the crimes will show that the law favors man rather than woman. Here's how the law divides the adulterous woman from the philandering man:

Penalty for Adultery (the main offender is the married woman): 
prision correccional in its medium and maximum periods
Medium period: from 2 years, 4 months and 1 day to 4 years and 2 months; 
Maximum period: from 4 years and 2 months and 1 day to 6 six years;
Penalty for Concubinage (the main offender is the married husband):
prision correccional in its minimum and medium periods.
Minimum period: from 6 months and 1 day to 6 years.
Medium period: from 2 years, 4 months and 1 day to 4 years and 2 months;

See, sexist. The woman could get jail time anywhere from 2 years to 6 years while the husband can get jail time only up to 4 years and 2 months which is considerably lesser than what the woman would get.

Likewise, in the crime of concubinage, what is this penalty called destierro for the concubine? Is it some kind of Italian dessert? No. Destierro is a penalty which has no period, it is one where a person is banished from a locality, or directed to live away from a certain area. Case law states that this really is not a penalty but more of a protective measure for the concubine as surely the legal wife would try to cause her bodily harm and other injuries (which we see on TV). Banishment. Truly an archaic form of punishment, imagine, being banished from a Municipality/City, Province, and perhaps an entire Region!

Let's think for a moment about this glamorous adulterous lifestyle we keep on seeing on TV. 

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