In the Philippine legal system, marital infidelity is not merely a ground for legal separation; it is a criminal offense classified under Crimes Against Chastity in the Revised Penal Code (RPC). However, the law does not treat infidelity by a husband and a wife equally. The distinction lies in two separate articles: Article 333 (Adultery) and Article 334 (Concubinage).
Understanding these differences is crucial, as they involve different elements of proof, distinct penalties, and reflect a historical gender bias inherent in the country’s colonial-era penal laws.
Article 333: Adultery
Adultery is committed by a married woman and by the man who has carnal knowledge of her, knowing her to be married, even if the marriage is subsequently declared void.
- Who is Liable: The married woman and her paramour.
- The Threshold of Proof: A single act of sexual intercourse is sufficient to constitute adultery. There is no requirement for the relationship to be "scandalous" or for the parties to live together.
- The Penalty: The penalty for adultery is prision correccional in its medium and maximum periods. This ranges from 2 years, 4 months, and 1 day to 6 years of imprisonment. Both the wife and the paramour receive the same prison sentence.
Article 334: Concubinage
Concubinage is committed by any husband who shall keep a mistress in the conjugal dwelling, or shall have sexual intercourse under scandalous circumstances, or shall cohabit with her in any other place.
- Who is Liable: The married husband and his concubine.
- The Threshold of Proof: Unlike adultery, a single act of infidelity is generally not enough to convict a husband of concubinage. To be liable, the husband must do one of the following three specific acts:
- Keep a mistress in the conjugal dwelling: Bringing the mistress into the home shared with the legitimate wife.
- Sexual intercourse under scandalous circumstances: The acts of infidelity must be performed in a manner that causes public outcry or offends public morals/decency.
- Cohabitation: Living together as husband and wife in any other place (e.g., a "second home" or apartment).
- The Penalty:
- For the Husband: The penalty is prision correccional in its minimum and medium periods (6 months and 1 day to 4 years and 2 months). Note that this is significantly lower than the penalty for a wife.
- For the Concubine: The penalty is destierro (banishment). The concubine is not imprisoned but is prohibited from entering a designated radius (25 to 250 kilometers) of a specific place for a certain period.
Summary of Differences
| Feature | Adultery (Article 333) | Concubinage (Article 334) |
|---|---|---|
| Primary Offender | The Married Wife | The Married Husband |
| Act Required | A single act of sexual intercourse. | Keeping in the home, scandalous intercourse, OR cohabitation. |
| Penalty for Spouse | 2 years, 4 months, 1 day to 6 years. | 6 months, 1 day to 4 years, 2 months. |
| Penalty for Paramour | Imprisonment (same as the wife). | Destierro (Banishment). |
| Ease of Prosecution | Generally easier to prove. | Harder to prove due to specific conditions. |
The Prosecution and the "Pardon" Rule
Under the Rules of Court and the Revised Penal Code, these crimes are considered "private crimes," meaning they can only be prosecuted upon a complaint filed by the offended spouse.
- Mandatory Joinder: The offended spouse cannot file a case against only the paramour/concubine; they must include their own spouse in the criminal complaint.
- The Effect of Pardon: If the offended spouse has consented to the infidelity or has pardoned the offending spouse (either expressly or impliedly), the criminal action can no longer be pursued. Pardon of the guilty spouse necessarily includes the pardon of the paramour or concubine.
Constitutional and Human Rights Critique
The disparity between Article 333 and Article 334 is a frequent subject of debate in Philippine jurisprudence and legislative circles. Critics argue that these laws violate the Equal Protection Clause of the Constitution and the Magna Carta of Women (R.A. 9710), as they impose a higher burden of proof and a harsher penalty on women than on men.
While several bills have been filed in the Philippine Congress to "equalize" these crimes or decriminalize them in favor of civil sanctions (like legal separation or psychological incapacity), the Revised Penal Code remains the prevailing law of the land.
Related Provision: Article 247
It is also vital to note Article 247, known as Death or Physical Injuries Inflicted Under Exceptional Circumstances. This law states that any legally married person who, having surprised their spouse in the act of committing sexual intercourse with another person, shall kill any of them or both of them in the act or immediately thereafter, shall suffer the penalty of destierro.
Note: This is not a "license to kill" but a mitigating circumstance based on the total loss of self-control. If the spouse only inflicts physical injuries, they are generally exempt from punishment.