Monday, 16 August 2010

ADULTERY AND CONCUBINAGE

Definition:

What is concubinage?

Concubinage is committed by 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 (Article 334 of the Revised Penal Code or RPC).

What is adultery?

Adultery means the carnal relation between a married woman and a man who is not her husband, the latter knowing her to be married, even if the marriage be subsequently declared void (RPC, Article 333). Each sexual intercourse constitutes a crime of adultery.

Discussion on these concepts:


CONCUBINAGE

Art. 334. Concubinage. — 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.


I. How committed/Concept: The crime committed by a married man who:

1. Shall keep a mistress in the conjugal dwelling

a). the concubine must live in the conjugal dwelling even for brief periods of time, and not where she occasionally comes for a tryst or to spend the night therein

2. Shall have sexual intercourse with her under scandalous circumstances

a). Proof of sex is not necessary but may be inferred

b). There be a public or open flaunting of the illicit relationship so that the public is scandalized, shocked, or the conduct give rise to general protest, or that the relationship sets a bad example.

c). Example: being seen with the woman in social and public gatherings; introducing or treating the woman as though she were the wife

d) Since public reaction is gauge of the scandal is there concubinage if:

(i) openly going out is in places where the two are total strangers

(ii) relatives and acquaintances accept the fact of the relationship, as when the wife left the man who now is cared and loved by another woman?

3. Cohabit with her in any other place

a). To cohabit is to live together as husband and wife.

b) QUESTION: Is concubinage committed by the man in providing the woman her own house or apartment but does not live with her though he regularly visits her thereat, at which time they engage in sex?

II. Unlike in adultery, the fact of criminal conversation or sexual intercourse with a woman does not per se give rise to concubinage. Further, each sexual act is not a separate offense because concubinage is treated as a continuing crime.

Note: In adultery the penalty is the same for both the woman and man (Prision correctional medium and maximum) but in concubinage the penalty for the man is lower by one degree ( prision correctional minimum and medium) while the concubine is given a separate penalty which is"destierro".


What is destierro?

Destierro means banishment or only a prohibition from residing within the radius of 25 kilometers from the actual residence of the accused for a specified length of time. It is not imprisonment.

III. The woman is liable if she knows him to be married (even if unhappily at that and even if her purpose is to provide comfort and companionship)

IV. The defenses available in adultery also apply such as consent and pardon.


ADULTERY

Art. 333. Who are guilty of adultery?

I. Concept: The crime committed by a married woman who shall have sexual intercourse with a man not her husband, and by the man who has carnal knowledge of her, knowing her to be married”

A. The gist is actual sexual intercourse and not just mere romantic dating, or petting or kissing

B. There is no frustrated stage: it is either that the accused were able to engage in sex or not.

C. It is not a continuing crime because each separate sex act on a different occasion is a different and a separate crime.

D. This may be committed when a married woman marries a second time without the first having been judicially annulled or voided. Her liability is in addition to bigamy.

II. The Judicial validity of the woman’s marriage is not material. It is enough that there was a marriage which has not yet been annulled or declared null and void.

III. Rationale:

A. The possibility of introducing spurious heirs

B. Violation of the marriage vows and the sanctity of the marriage based on the exclusivity of the sexual partner.

Defenses in Adultery

A. Pardon by the offended spouse if (1) given to both the guilty parties and (2) prior to the institution of the criminal action

B. Pardon may be express or implied, as by sleeping with the woman despite knowledge of the adultery (Pardon of the Act)

C. Consent given prior to the adultery, such as in mutual agreement to separate and to live with another partner

D. Recrimination or mutual infidelity is merely mitigating

E. The fact that the woman is legally separated from the husband is no defense.

IV. Principles in the Prosecution of Adultery

A. Direct evidence is not necessary as adultery may be implied from the circumstances of time, place and occasion

B. There may be a separate trial for the man and the woman

C. The man may be acquitted if he did not know the woman is married

D. If the man is married, he may also be liable for concubinage and the married woman man may also be charged as a concubine

V. Special Extenuating Circumstance of Unjustified Abandonment

A. The penalty is at least one degree lower

B. The essence is that the woman was forced to commit adultery by reason of extreme necessity which refers to economic necessity and the need for survival, such as providing for the shelter and sustenance of her abandoned family.

Adultery shall be punished by prision correccional in its medium and maximum periods.

If the person guilty of adultery committed this offense while being abandoned without justification by the offended spouse, the penalty next lower in degree than that provided in the next preceding paragraph shall be imposed.


Who can file the action for adultery or concubinage?

Only the offended spouse can legally file the complaint for adultery or concubinage. The marital status must be present at the time of filing the criminal action. In other words, the offended spouse must still be married to the accused spouse at the time of the filing of the complaint.

Who must be prosecuted?

The offended party cannot institute the criminal charge without including both guilty parties (the offending spouse and the paramour), if both are alive.

What is the effect of consent or pardon by the offended spouse?

The criminal charge cannot prosper if the offended spouse has consented to the offense or pardoned the offenders. Pardon can be express or implied. An example of express pardon is when the offended party in writing or in an affidavit asserts that he or she is pardoning his or her erring spouse and paramour for their act. There is implied pardon when the offended party continued to live with his spouse even after the commission of the offense. Pardon must come before the institution of the criminal action and both offenders must be pardoned by the offended party.

NEWS AND INFORMATION: