Elements of Concubinage Under Philippine Criminal Law

I. Introduction

Concubinage stands as a cornerstone offense within the Philippine legal framework governing crimes against chastity, enshrined in the Revised Penal Code (RPC) of 1930. As a felony committed primarily by a married man against the sanctity of the marital bond, it reflects the civil law traditions inherited from Spanish colonial rule, emphasizing the protection of the family unit and the fidelity expected in marriage. Unlike its counterpart, adultery, which targets the errant wife, concubinage imposes criminal liability on the husband for maintaining illicit relations in specified manners, while also penalizing the participating woman as the concubine.

This article exhaustively examines the elements of concubinage, drawing from the statutory text, doctrinal interpretations, and jurisprudential precedents that have shaped its application in Philippine courts. It delves into the actus reus and mens rea required, the procedural nuances of prosecution, penalties, defenses, and related civil and criminal implications. In the Philippine context, concubinage remains a private crime prosecutable only upon the complaint of the offended spouse, underscoring its deeply personal nature amid evolving societal norms on gender equality and family law under the Family Code of 1988.

II. Statutory Basis

The crime of concubinage is defined and penalized under Article 334 of the Revised Penal Code, which states:

"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."

This provision operates within Title XI, Chapter I of the RPC, which addresses "Crimes Against Chastity." It is complemented by Article 333 on adultery, highlighting the asymmetric yet parallel treatment of marital infidelity. The law's gender-specific framing—targeting only husbands as primary offenders—has sparked constitutional debates under the equal protection clause of the 1987 Constitution, though the Supreme Court has upheld its validity as a valid exercise of legislative discretion in protecting marital institutions.

III. The Elements of Concubinage

To secure a conviction for concubinage, the prosecution must prove the following elements beyond reasonable doubt. These are bifurcated between the husband (the principal offender) and the concubine (the accomplice in the illicit union).

A. Elements Common to Both Offenders

1. Existence of a Valid Marriage: The foundational element is that the man is legally married at the time of the alleged acts. The marriage must be subsisting, meaning it has not been annulled, declared void, or dissolved by death. Proof of marriage is indispensable and is best established by the marriage contract or certificate (best evidence rule under Rule 130, Section 3 of the Rules of Court). However, secondary evidence—such as testimony of witnesses who attended the wedding, cohabitation as spouses, or public acknowledgment—is admissible if the original document is unavailable, lost, or destroyed without fault of the proponent (People v. Bitdu, 58 Phil. 817 [1933]).

   Jurisprudence emphasizes that a voidable marriage, if not yet annulled, still qualifies as valid for concubinage purposes. Bigamy (Article 349, RPC) is a separate offense and does not preclude concubinage if the second union is not formalized.

2. The Woman is Not the Wife: The female participant must be distinct from the legal spouse. This element is straightforward but requires proof that the relationship is extramarital.

B. Specific Elements for the Husband (Primary Offender)

The husband must commit one of the three alternative acts, each carrying distinct nuances:

1. Keeping a Mistress in the Conjugal Dwelling (Article 334(1)):

   • This involves the husband maintaining or harboring the woman in the home where the marital couple resides or where the family is domiciled, treating her as a mistress.
   • Conjugal Dwelling Defined: It refers to the place of residence of the spouses, even if temporary or shared with family members. It need not be owned by the husband; rented premises or the wife's family home suffice if it is the situs of the marriage (People v. Pitoc, 55 Phil. 729 [1931]). The dwelling retains its character even during the wife's temporary absence, such as for work or hospitalization.
   • Keeping a Mistress: This requires more than mere visitation; it implies a sustained arrangement where the woman lives in the household, performs domestic roles, or is publicly presented as part of the family. Mere overnight stays do not suffice; there must be an element of permanence or habitual presence (People v. Santiago, 61 Phil. 111 [1934]).
   • Actus Reus: The act is consummated upon the mistress's integration into the conjugal home, regardless of whether sexual intercourse occurs there.

2. Having Sexual Intercourse Under Scandalous Circumstances (Article 334(2)):

   • This covers extramarital sexual relations that occur in a manner causing public outrage or notoriety.
   • Scandalous Circumstances: The intercourse must be attended by circumstances that bring the act to public knowledge or scandal, such as in a public place, before witnesses, or in a manner that invites gossip and community disapproval. It is not the act itself but its notoriety that elevates it to criminality (U.S. v. Feliciano, 34 Phil. 689 [1916]). Factors include the time, place, and publicity—e.g., midday trysts in a hotel known to the public, or relations flaunted in social gatherings.
   • Sexual Intercourse: Proof of carnal knowledge is required, which may be circumstantial (e.g., eyewitness accounts, admissions, or physical evidence). Mere affection or dating falls short.
   • This mode is distinct from simple adultery, as it demands the element of scandal.

3. Cohabiting with Her in Any Other Place (Article 334(3)):

   • This is the broadest and most commonly invoked mode, encompassing the husband and woman living together as husband and wife in a location separate from the conjugal dwelling.
   • Cohabitation Defined: It requires not just shared residence but a conjugal-like relationship—sharing a bed, meals, domestic life, and public representation as spouses. Mere frequent visits or financial support do not constitute cohabitation (People v. Olarte, 10 Phil. 234 [1908]; People v. Zapata, 88 Phil. 688 [1951]).
   • Any Other Place: This includes rented apartments, hotels, or even the woman's residence. The duration need not be indefinite; even a few months of shared living suffices if the marital simulation is evident.
   • Jurisprudence requires proof of "more uxorio" (as husband and wife) through overt acts like introducing the woman as "Mrs." or filing joint documents (People v. Constantino, 60 Phil. 673 [1934]).

The mens rea for the husband is general intent: knowledge of the marriage and the illicit nature of the acts. Willfulness is presumed from the commission of the overt acts.

C. Elements for the Concubine (The Mistress)

The concubine is not a mere accessory but a principal liable under the same article. Her liability attaches to the acts in paragraphs 1 and 3 (keeping and cohabitation), and arguably to paragraph 2 if she participates actively.

1. Knowledge of the Husband's Marital Status: Crucial for her conviction. The concubine must have actual or constructive knowledge that the man is married. This is proven by admissions, prior inquiries, or circumstances like the wife's existence being known in their social circle (People v. Bitdu, supra; People v. Topacio, 61 Phil. 163 [1934]). Ignorance, if reasonable and in good faith, serves as a defense.

2. Participation in the Illicit Arrangement: She must consent to and engage in the keeping, intercourse, or cohabitation. Mere acquiescence without active involvement may not suffice, but accepting the role of mistress imputes liability.

The concubine's penalty is lighter, reflecting her secondary role in the offense.

IV. Penalties and Civil Effects

• For the Husband: Prision correccional in its minimum and medium periods (6 months and 1 day to 4 years and 2 months). This is afflictive in nature but allows for probation under the Indeterminate Sentence Law (Act No. 4103, as amended) if the penalty does not exceed 3 years.

• For the Concubine: Destierro (banishment), typically for a period equivalent to the husband's penalty (6 months to 6 years). This entails prohibition from entering the municipality where the crime occurred or the offended spouse resides, but does not involve imprisonment.

Modifying Circumstances: Ordinary aggravating (e.g., nighttime, dwelling) or mitigating (e.g., passion, intoxication) apply. Privilege mitigating circumstances like minority may reduce the penalty.

Civil Liability: The offender is solidarily liable for moral and exemplary damages to the offended spouse (Articles 2219 and 2229, Civil Code), plus support for common children if applicable. Under the Family Code (Article 63), concubinage serves as a ground for legal separation, with forfeiture of the offending spouse's share in conjugal properties.

V. Prosecution, Prescription, and Extinction of Criminal Action

Concubinage is a private crime under Article 344 of the RPC:

• Complaint Requirement: Prosecution proceeds only upon a sworn complaint filed by the offended spouse (the wife). She must include both the husband and the concubine if both are alive. The complaint must be filed within the prescriptive period: 10 years from discovery (Article 91, RPC, as the crime is not public).

• Consent and Pardon: The action is extinguished if the wife:

  • Consented to the offense beforehand;
  • Pardoned the offenders after discovery; or
  • Continued living with the husband despite knowledge (implied condonation).

  Pardon must be express and must benefit both offenders equally; pardoning only the concubine does not bar action against the husband (People v. Carballo, 61 Phil. 1067 [1935]). However, subsequent forgiveness after filing does not divest the court of jurisdiction.

• Who May File: Only the wife; parents or guardians cannot substitute unless she is a minor.

• Venue: The Regional Trial Court (RTC) has jurisdiction, as the penalty exceeds 6 years in potential (though minimum is lower).

VI. Defenses and Jurisprudential Nuances

Common defenses include:

1. Lack of Marriage Proof: Failure to establish the subsisting marriage.
2. No Knowledge (for Concubine): Honest belief in the man's single status.
3. Absence of Requisite Acts: For keeping a mistress, no sustained presence; for scandal, no public notoriety; for cohabitation, mere liaison.
4. Prescription: Lapse of 10 years.
5. Double Jeopardy: If prior acquittal or conviction.
6. Constitutional Challenges: Though upheld, arguments persist on gender bias (Silva v. People, G.R. No. 132250 [2000], affirming the law's rationality).

Key Cases:

• People v. Zapata (88 Phil. 688 [1951]): Cohabitation requires "living together as husband and wife" with indicia of intimacy.
• People v. Pitoc (55 Phil. 729 [1931]): Conjugal dwelling persists despite spousal separation.
• U.S. v. Feliciano (34 Phil. 689 [1916]): Scandal must be notorious, not private.
• People v. Constantino (60 Phil. 673 [1934]): Public representation as spouses is key.

In Silva v. People, the Supreme Court clarified that the law does not require the concubine to be "kept" exclusively; shared relations suffice.

VII. Related Offenses and Distinctions

• Vs. Adultery (Article 333): Adultery requires the woman to be married and the man to know it; concubinage is the husband's parallel but broader offense.
• Vs. Bigamy (Article 349): Involves a second marriage; concubinage is de facto.
• Vs. Unlawful Cohabitation (Article 335? No, that's rape): Simple illicit relations without marriage are not criminalized per se, except in these forms.
• Modern Intersections: The Anti-Violence Against Women and Children Act (RA 9262) may overlap with concubinage via psychological violence from infidelity. The Family Code's provisions on support and property regimes are triggered.

VIII. Societal and Legal Evolution

In contemporary Philippine society, concubinage prosecutions have declined with the rise of no-fault legal separations and annulments, yet it remains a potent tool for aggrieved spouses, especially in rural areas. Legislative proposals for gender-neutral infidelity laws (e.g., House Bill No. 7800) reflect ongoing reforms, but the RPC provision endures as of the latest jurisprudence.

Courts apply a strict construction, favoring the accused in ambiguous cases, while recognizing the law's intent to deter the erosion of family values.

This comprehensive exposition underscores concubinage as a multifaceted offense blending criminal, civil, and familial dimensions, ensuring the preservation of marital fidelity under Philippine law.