Why is the Law on Adultery and Concubinage Biased Against Women in the Philippines?

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For the Catholic Church, not all state laws can be moral. Morality follows the divine law, while the state law follows the human law. Ideally, all things legal must be moral as legality and morality aim to achieve the common good. But there are instances that legality can conflict with morality. The law on adultery and concubinage in the Philippines is an example of a law that is legal but immoral if one examines the provisions of the law closely.

The Philippine law on adultery and concubinage under the Revised Penal Code is highly biased law against women. This code is basically crafted by male legislators. It is immoral as it violates the virtue of justice which requires that everyone must be given what is due to him/her by law in the spirit of equality and Christian love. In particular, its definition and enforcement are highly unequal and unjust against married women.

There are three areas where this law is biased against women.

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1. One Crime but with Two Labels: Adultery is more Condemned in Society than Concubinage.

The first area of injustice is the label of the crime. Both adultery and concubinage refers to one offense of marital infidelity committed by a spouse legally married by having sexual intercourse with other partners not their wife or husband. But the law labels and defines this same offense separately by gender. The more popular and culturally strong label of “adultery” is assigned to Filipino wives who generally and culturally expected to be chaste and faithful in marriage, while the less known term of concubinage is given to Filipino husbands. Why two unequal labels for one offense of marital infidelity?  Moreover, the legal prescriptions on how this crime is committed also vary, making the wife more vulnerable to prosecution by the husband. In adultery, a wife can be guilty by having a carnal knowledge or sexual intercourse with another man who is not her husband in any circumstance.

In concubinage, a husband can only be guilty of the crime if he had sexual intercourse  with another woman who is not his wife only under the following three circumstances: (1) By bringing the mistress and having sexual intercourse with her in the conjugal home, (2) by cohabitation, that is, it has been established that the husband had  and lived together with the mistress, acting like husband and wife in front of the community, and (3) by having a sexual intercourse in a scandalous way!  Under this definition, a wife can easily commit one count of adultery for every act of sexual intercourse with her lover in any place and circumstance. But for the husband, this is not the case. He is not guilty if he does not cohabit with his mistress, if he only brings the mistress in a hotel secretly, or he if he just visits with his mistress in an apartment and goes home after having sexual relations with her. Cohabitation as legally defined and required by law is what makes concubinage difficult to establish in court against the husband.

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2. Indirect Evidence Sufficient for Women and but only Direct Evidence for Men.

The second area of injustice is the minimum type of evidence acceptable to the court for prosecution. In adultery, indirect evidence such as love letters, e-mail, text messages, pictures showing intimate moments and the like are accepted in court and sufficient to convict the wife of the crime. In concubinage, only direct evidence such videos, incriminating pictures, testimonies of people who had personal knowledge of the affair, are acceptable in court to convict the husband.

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3. Longer Imprisonment for Women.

Finally, the third area of inequality is in the punishment.  Adultery is punishable by prision correctional from its medium to maximum terms or roughly between 4 to 6 years, while concubinage against the husband only carries a penalty of prision correctional in its minimum to medium terms or 2 to 4 years. In one decided case, the court justifies this difference of punishment by saying that it would highly unjust for the husband to probably support an illegitimate child!

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