Adultery or Concubinage While Working Abroad: Elements, Evidence, and Venue

Introduction

In the Philippines, adultery and concubinage remain criminal offenses under the Revised Penal Code (RPC), reflecting the country's emphasis on the sanctity of marriage and family. These crimes are particularly relevant in the context of Overseas Filipino Workers (OFWs), where one spouse may be employed abroad, leading to prolonged separations that can strain marital relationships. Adultery is committed by a married woman and her paramour, while concubinage applies to a married man and his mistress. When such acts occur while one or both spouses are working overseas, unique challenges arise regarding the elements of the crime, gathering evidence, and determining the proper venue for prosecution. This article explores these aspects comprehensively within the Philippine legal framework, drawing from statutory provisions, jurisprudence, and procedural rules.

Although the Philippines has decriminalized certain acts related to marital infidelity in some contexts (e.g., the Anti-Violence Against Women and Their Children Act of 2004 addresses psychological violence from infidelity), adultery and concubinage persist as distinct crimes under Articles 333 and 334 of the RPC. These offenses are classified as crimes against chastity and can only be initiated upon the complaint of the offended spouse, underscoring their private nature. The globalization of the Filipino workforce has led to an increase in cases where infidelity occurs extraterritorially, prompting courts to apply principles of extraterritorial jurisdiction.

Definitions and Elements of the Crimes

Adultery (Article 333, RPC)

Adultery is defined as the act of a married woman engaging in sexual intercourse with a man who is not her husband, with the paramour knowing of her marital status. The crime is consummated upon the act of carnal knowledge, regardless of whether it results in pregnancy or other consequences.

The essential elements are:

Marital Status of the Woman: The offender must be a legally married woman. Proof of a valid marriage is required, and the marriage must not have been annulled or declared void at the time of the act. If the marriage is bigamous or otherwise invalid, adultery cannot be charged.
Sexual Intercourse: There must be actual carnal knowledge, meaning penetration, however slight. Mere attempts or preparatory acts (e.g., kissing or fondling) do not suffice, though they may constitute acts of lasciviousness under Article 336 of the RPC.
Knowledge of the Paramour: The man involved must have knowledge that the woman is married. This can be inferred from circumstances, such as the woman wearing a wedding ring or discussing her marriage.

In cases involving OFWs, if the married woman is working abroad and engages in adultery there, the crime is still punishable under Philippine law, as it affects the marital status recognized in the Philippines.

Concubinage (Article 334, RPC)

Concubinage is committed by a married man who engages in specific acts of infidelity with a woman who is not his wife. Unlike adultery, which requires only a single act of intercourse, concubinage demands more habitual or scandalous conduct.

The elements are:

Marital Status of the Man: The offender must be a legally married man, with the marriage subsisting at the time of the act.
Commission of Any of the Following Acts:
- Keeping a Mistress in the Conjugal Dwelling: This involves installing a paramour in the family home, which is considered the most aggravated form due to its direct affront to the family.
- Sexual Intercourse Under Scandalous Circumstances: This includes acts done in public or in a manner that causes public scandal, such as in a hotel known to the community or in view of others. Scandal is determined by the potential for public outrage or knowledge.
- Cohabitation in Any Other Place: This refers to living together as husband and wife in a place other than the conjugal home, implying a continuous or habitual relationship rather than isolated encounters.

For OFWs, if a married man working abroad cohabits with a mistress in his host country, this constitutes concubinage, as the act of cohabitation need not occur in the Philippines. The law focuses on the marital bond, which is portable across borders.

Both crimes require that the marriage be valid and subsisting. If the erring spouse believes in good faith that the marriage is void (e.g., due to a foreign divorce not recognized in the Philippines), this may serve as a defense, but Philippine courts generally do not recognize foreign divorces obtained by Filipinos.

Jurisdiction and Venue

Extraterritorial Application

Under Article 2 of the RPC, Philippine criminal laws apply to felonies committed by Philippine citizens outside the territory, provided the acts are punishable under the RPC. Adultery and concubinage fall under this, as they are crimes against the civil status of persons, which the state has an interest in protecting regardless of location. Supreme Court decisions, such as in People v. Tria (1935), affirm that crimes against chastity committed abroad by Filipinos are triable in Philippine courts.

For OFWs, if the infidelity occurs in a foreign country, Philippine jurisdiction attaches because:

The offender is a Filipino citizen.
The crime affects the marital status registered in the Philippines.
The offended spouse can file a complaint in the Philippines.

However, practical enforcement depends on extradition treaties or the offender's return to the Philippines. Foreign courts may not recognize these as crimes, as many jurisdictions have decriminalized adultery (e.g., following the UN's recommendations), but this does not bar Philippine prosecution.

Venue for Prosecution

Venue is governed by Rule 110, Section 15 of the Revised Rules of Criminal Procedure, which states that for adultery and concubinage, the action may be instituted in:

The place where the crime or any of its elements occurred.
The residence of the offended party.

When the crime is committed abroad:

If the offended spouse resides in the Philippines, the case can be filed in the Regional Trial Court (RTC) of their province or city.
If elements occur in multiple places (e.g., communication via social media from abroad to the Philippines), venue may lie where the communication is received.
For transitory crimes like these, the Supreme Court in Pilapil v. Ibay-Somera (1989) held that venue is where the offended party actually resides at the time of filing, to facilitate access to justice.

In OFW scenarios, if both spouses are abroad but the offended spouse returns to the Philippines, venue is in their Philippine residence. If the offender is abroad, provisional remedies like hold departure orders may be sought. The case cannot proceed without the offender's presence, but arrest warrants can be issued.

These crimes are private in nature, meaning they require a complaint from the offended spouse (Article 344, RPC). The offended spouse must not have consented to or pardoned the act, and the complaint must include both the erring spouse and the paramour. Pardon or consent extinguishes the criminal liability.

Evidence Required

Proving adultery or concubinage, especially when committed abroad, is evidentiary intensive due to the private nature of the acts. The prosecution must establish guilt beyond reasonable doubt, often relying on circumstantial evidence since direct proof of intercourse is rare.

Common Types of Evidence

Proof of Marriage: Certified true copies of the marriage certificate from the Philippine Statistics Authority (PSA) or local civil registrar.
Direct Evidence of the Act:
- For adultery: Eyewitness testimony to the act of intercourse, though uncommon. Medical evidence, such as DNA tests for paternity in cases of pregnancy, can corroborate.
- For concubinage: Lease agreements or utility bills showing cohabitation, hotel receipts for scandalous intercourse, or witness accounts of the man keeping a mistress in the home.
Circumstantial Evidence:
- Photographs, videos, or social media posts showing intimacy (e.g., shared vacations, affectionate messages). In OFW cases, digital evidence like emails, chat logs from apps like WhatsApp or Facebook Messenger, or call records can indicate ongoing relationships.
- Travel documents, visa stamps, or employment records placing the parties together abroad.
- Testimonies from friends, colleagues, or relatives abroad who observed the relationship.
- Bank statements showing financial support to the paramour, which can infer cohabitation or maintenance.
Digital and Forensic Evidence:
- In the era of OFWs, cyber evidence is crucial. Under the Rules on Electronic Evidence (A.M. No. 01-7-01-SC), screenshots, emails, and digital communications are admissible if authenticated. Forensic analysis of devices can recover deleted messages.
- If the paramour is a foreigner, evidence must show knowledge of the marriage, such as shared photos of the wedding.
Corroborative Evidence for Scandal:
- For concubinage under scandalous circumstances, public knowledge or notoriety must be proven, e.g., through community gossip or media reports.

Challenges in OFW cases include gathering evidence abroad, where witnesses may be uncooperative or inaccessible. The offended spouse may hire private investigators or seek assistance from Philippine embassies. The Supreme Court in People v. Zapata (1950) emphasized that circumstantial evidence must form an unbroken chain leading to guilt, excluding reasonable doubt.

Burden of Proof and Presumptions

The burden is on the prosecution. No presumption of guilt arises from mere opportunity; actual acts must be proven. In Luis B. Reyes' commentary on the RPC, it is noted that isolated acts of intercourse by a man do not constitute concubinage unless they meet the specific modalities.

Defenses and Mitigating Circumstances

Common defenses include:

Invalid Marriage: If the marriage is void ab initio.
Lack of Knowledge: For the paramour.
Consent or Pardon: Express or implied (e.g., continuing cohabitation after discovery).
Good Faith Belief in Death or Divorce: If the erring spouse believed the other was dead or a foreign divorce was valid (though the latter is rarely upheld for Filipinos).
Insufficiency of Evidence: Often successful due to the high threshold.

Mitigating circumstances under Article 13 of the RPC, such as voluntary surrender, may apply, but aggravating factors like abuse of position (e.g., if the paramour is a subordinate abroad) can increase penalties.

Penalties and Consequences

Adultery: Prision correccional in its medium and maximum periods (2 years, 4 months, 1 day to 6 years) for both the wife and paramour.
Concubinage: Prision correccional in its minimum and medium periods (6 months, 1 day to 4 years, 2 months) for the husband, and destierro (banishment) for the concubine.

Additional consequences include civil liabilities, such as moral damages, and potential grounds for legal separation or annulment under the Family Code. For OFWs, conviction may lead to job loss or deportation from the host country.

Conclusion

Adultery and concubinage while working abroad highlight the intersection of personal relationships, criminal law, and international mobility in the Philippine context. The elements focus on marital status and specific acts of infidelity, while evidence often relies on digital and circumstantial proofs adaptable to extraterritorial settings. Jurisdiction extends beyond borders to protect Filipino marriages, with venue prioritizing the offended spouse's accessibility. As the Philippines continues to deploy millions of OFWs, awareness of these laws serves as a deterrent and a tool for justice, though calls for decriminalization persist amid evolving societal norms. Legal consultation is advisable for affected parties to navigate these complex issues.