Introduction

In the Philippine legal system, concubinage is recognized as a crime that undermines the sanctity of marriage and family relations. Codified under Article 334 of the Revised Penal Code (RPC), as amended, concubinage specifically addresses infidelity committed by a married man against his wife, with corresponding liability extending to the woman involved, commonly referred to as the "mistress" or "concubine." This offense falls under the category of crimes against chastity, emphasizing the protection of marital fidelity and moral standards in society. While the primary offender is the husband, the law imposes criminal liability on the concubine as well, albeit with a distinct and lighter penalty. This article comprehensively explores the legal framework surrounding concubinage, focusing on the mistress's liability, including its definition, elements, penalties, procedural aspects, defenses, and related jurisprudential insights within the Philippine context.

Historical and Legal Background

The concept of concubinage in Philippine law traces its roots to Spanish colonial influences, integrated into the RPC enacted in 1930. The RPC draws from the Spanish Penal Code of 1870, which viewed adultery and concubinage as asymmetrical offenses based on gender roles prevalent at the time. Adultery (Article 333, RPC) penalizes a married woman for infidelity, while concubinage targets the married man. This gender-based distinction has been criticized for inequality, but it remains in force despite calls for reform under modern gender equality principles enshrined in the 1987 Philippine Constitution (Article II, Section 14) and international commitments like the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

Republic Act No. 8353 (Anti-Rape Law of 1997) and Republic Act No. 9262 (Anti-Violence Against Women and Their Children Act of 2004) have expanded protections against gender-based violence, but they do not directly amend concubinage provisions. Proposals to decriminalize or equalize penalties for marital infidelity have surfaced in Congress, but as of the latest legal developments, Article 334 stands unaltered.

Definition and Elements of Concubinage

Concubinage is defined under Article 334 of the RPC as follows:

"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 offense is committed in three alternative modes:

Keeping a mistress in the conjugal dwelling: This involves the husband maintaining the woman in the family home, implying ongoing cohabitation or support that offends the wife's rights.
Having sexual intercourse under scandalous circumstances: This requires proof of sexual acts in a manner that causes public outrage or scandal, such as in public view or in a way that becomes notorious in the community.
Cohabiting with her in any other place: This entails living together as husband and wife without legal marriage, in a place other than the conjugal home, suggesting a stable, quasi-marital relationship.

For the mistress's liability, she must be aware of the man's married status. The law presumes her complicity in the offense, making her a principal by direct participation or indispensable cooperation. Key elements for her conviction include:

The man is legally married.
The woman is not his wife.
The acts fall under one of the three modes.
The woman knows of the marriage (scienter or knowledge is essential; ignorance may serve as a defense).
The offense is committed within Philippine jurisdiction.

Unlike adultery, where a single act of infidelity suffices, concubinage requires a pattern or continuity, such as habitual cohabitation or scandalous conduct.

Liability of the Mistress

The mistress, termed the "concubine" in the RPC, is criminally liable as a co-principal. Her penalty is destierro, a form of banishment or exile from the place where the offended party (the wife) resides, typically for a period equivalent to the husband's penalty but enforced as restriction from a specified radius (e.g., 25 kilometers under Article 87, RPC).

Destierro is considered a correctional penalty, lighter than imprisonment, and ranges from 6 months and 1 day to 6 years, but in practice for concubinage, it aligns with the husband's prision correccional (2 years, 4 months, and 1 day to 4 years and 2 months). The concubine is not imprisoned but prohibited from entering the designated area, with violation leading to additional penalties.

Liability attaches only if the husband is convicted or if the acts are proven. The mistress cannot be prosecuted independently; the case must involve the husband as the primary offender. Jurisprudence, such as in People v. Pitoc (G.R. No. L-1785, 1949), emphasizes that the concubine's knowledge of the marriage is crucial, derived from circumstances like living arrangements or community knowledge.

In cases involving same-sex relationships or transgender individuals, the law's gendered language (e.g., "husband" and "woman") limits application, as concubinage is strictly heterosexual and gender-specific. Emerging issues under Republic Act No. 10175 (Cybercrime Prevention Act) may intersect if evidence involves digital communications, but core liability remains under the RPC.

Penalties and Aggravating/Mitigating Circumstances

Husband's Penalty: Prision correccional in its minimum and medium periods (6 months and 1 day to 4 years and 2 months).
Mistress's Penalty: Destierro, equivalent in duration but non-custodial.

Aggravating circumstances (e.g., abuse of authority if the husband is in a position of power) may increase penalties under Article 14, RPC, but rarely apply to the mistress. Mitigating factors, like voluntary surrender (Article 13, RPC), could reduce the term. Accessory penalties include civil interdiction or suspension of rights during the penalty period.

Civil liabilities may arise concurrently, such as moral damages under Article 2219 of the Civil Code, where the mistress could be held solidarily liable with the husband for compensation to the wife.

Procedural Aspects: Who Can File and Prosecution

Concubinage is a private crime, prosecutable only upon complaint by the offended spouse (the wife). Under Article 344, RPC, the wife must file the complaint; no one else, including relatives or authorities, can initiate it without her consent. The complaint must cover both the husband and the concubine; selective prosecution is not allowed.

Pardon or condonation by the wife extinguishes criminal liability. Explicit pardon (e.g., written affidavit) or implicit condonation (e.g., resuming marital cohabitation after knowledge of the affair) bars prosecution. The prescriptive period is 15 years from discovery (Article 90, RPC).

Cases are filed before the Municipal Trial Court or Regional Trial Court, depending on penalties. Evidence typically includes witness testimonies, documents (e.g., hotel receipts), or admissions. Digital evidence, like messages, must comply with the Rules on Electronic Evidence.

Defenses Available to the Mistress

Lack of Knowledge: Proving ignorance of the man's marital status negates criminal intent (mens rea). Burden shifts to the prosecution to show awareness.
No Sexual Intercourse or Cohabitation: If acts do not meet the modes (e.g., mere friendship without scandal or cohabitation), no liability.
Invalid Marriage: If the husband's marriage is void (e.g., bigamous or lacking essentials under the Family Code), concubinage does not apply.
Prescription: If the complaint is filed beyond 15 years from discovery.
Pardon by the Wife: Extends to the mistress if granted before or during trial.
Good Faith: In rare cases, cultural or mistaken belief defenses, though seldom successful.

Jurisprudence like U.S. v. Mata (G.R. No. 7933, 1913) underscores that isolated acts do not constitute concubinage, protecting against overbroad application.

Related Offenses and Comparative Analysis

Concubinage differs from adultery, where the married woman and her paramour face harsher penalties (prision correccional medium to maximum). Bigamy (Article 349, RPC) involves contracting a second marriage, with higher penalties. Under the Family Code (Articles 55-57), concubinage grounds legal separation, allowing property division and custody claims.

In comparison, other jurisdictions like Muslim-majority areas under Presidential Decree No. 1083 (Code of Muslim Personal Laws) may apply Sharia-based rules, exempting from RPC provisions. Internationally, many countries have decriminalized infidelity, viewing it as a private matter, but the Philippines retains it to uphold Catholic-influenced family values.

Challenges and Criticisms

Critics argue the law perpetuates gender bias: concubinage is harder to prove than adultery, requiring ongoing acts versus a single incident. The lighter penalty for the mistress versus the paramour in adultery cases highlights inequality. Feminist groups advocate repeal, aligning with Republic Act No. 9710 (Magna Carta of Women). Enforcement is low due to social stigma and evidential burdens, with few convictions annually.

Conclusion

Concubinage under Philippine law imposes criminal liability on the mistress as a means to deter marital infidelity, with destierro as a unique penalty emphasizing social ostracism over incarceration. While rooted in traditional norms, it intersects with modern legal protections and faces ongoing scrutiny for reform. Understanding its elements, procedures, and defenses is essential for legal practitioners and affected parties navigating this offense.