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| Issue 3, 2008 |
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Issue 3, 2008
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The Bigger Picture
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When Sex Is a Crime: Adultery and the law In the Philippines
Carolina S. Ruiz
‘Modern love-walks beside me
Modern love-walks on by
Modern love-gets me to the church on time
Church on time-terrifies me
Church on time-makes me party
Church on time-puts my trust in god and man
God and man-no confessions
God and man-no religion
God and man-don’t believe in modern love.’
David Bowie, Modern Love (1983)
Noli and Irene were both married to other people when
they were having an affair. They continued being lovers
even when Irene married another man. Neither of them
could divorce their spouses (because there is no divorce
in the Philippines) but Irene eventually decided to have
her marriage annulled. Yet even after the court declared
her marriage annulled, Noli, a lawyer by profession (and
a public official) was accused of adultery and consequently
disbarred.
Like any other forbidden relationship, Noli and Irene’s
affair was carried on in secrecy but eventually ended up
as gossip column and tabloid fodder for several weeks in
the Philippines when Irene’s husband filed a petition for
disbarrment against Noli. Last year, their love letters (which
were submitted as evidence in Noli’s disablement case)
were circulated, quoted, commented on and judged by the
public all over the Internet. The Supreme Court received
Noli’s love letter to Irene on her wedding day as evidence
of his affair with a married woman, which according to the
court constituted ‘grossly immoral conduct’. Ironically,
in a number of other places in the world, Noli who was
obviously unhappy in his own marriage could have divorced
his wife and simply married Irene without much issue,
except perhaps for the usual public reaction to the affair
because of his public post.
Technically speaking, however, even married couples who
forgo the often-expensive option of marriage annulment on
the grounds of ‘psychological incapacity’ and agree to live
separately, are also committing adultery (or concubinage),
when they have relationships with other people. Another
administrative case, which reached the Supreme Court in
2003, involved a court employee who had been living with
a man for over twenty years outside of legal wedlock. A
complaint for immorality was filed by a private person,
alleging that Soledad Escritor, was married to someone
else when she began living with a man who was himself
married to another.
In a divided court, the issue at hand (whether or not the
existing rule on adultery was applicable) took an unexpected
turn when Soledad Escritor invoked the freedom of
religion. She argued that characterising her union which
was valid under the Jehova’s Witnesses’ rites as ‘adultery’,
constituted a violation of that freedom. Earlier, the trial
court which heard the administrative complaint against
Escritor held her guilty of immorality saying: ‘(B)y strict
Catholic standards, the live-in relationship of respondent with
her mate should fall within the defnition of immoral conduct, to
wit: that which is wilful, fagrant, or shameless, and which shows
a moral indifference to the opinion of the good and respectable
members of the community.’
While a number of dissenting Justices insisted on the usual
application of the law, the majority decided to take note
of the exception being invoked by Escritor and remanded
the case for further evidence. In 2006, the Supreme Court
upheld the exception. After receiving evidence from the
officials of the church to which Escritor and her partner
belonged, it held that the State failed to demonstrate ‘the
gravest abuses, endangering paramount interests’ which
could limit or override the respondent’s fundamental right
to religious freedom. It also found that the state failed to
show that the means it sought to achieve its legitimate state
objective was the least intrusive means.
Unlike the Noli Eala disbarrment case, which was filed
by the husband of the woman he was accused of having
an affair with, a stranger filed the administrative complaint
lodged against Soledad Escritor. In fact, Escritor and her
partner openly lived together as ‘husband and wife’ and
even made their vows in rites acknowledged by the Jehova’s
Witnesses. At the time the complaint was filed, they also
had a child who had already reached the age of majority.
On the other hand, when the story
about Eala’s affair was all over the
news, Irene whose marriage had
just been annulled gave birth to a
child allegedly fathered by Eala on
February 14, 2008.
As sexual affairs go, adultery is
salacious - extremely interesting
perhaps because it is associated
with ‘scandal’. Yet the term is also
shorthand for ‘extra-marital affair’.
Beneath the layers of meaning that
connote indecency and sinfulness,
what qualifies as ‘adultery’ can
actually be a myriad of situations and
relationships, much too complex to
be reduced to fit the label. In fact,
in many countries where divorce is
available, sexual infidelity may be a
ground for ending a marriage but
adultery is no longer punished as a
crime. The reverse, however, is true
for the Philippines where there is
no divorce law1
but penal laws and
administrative sanctions on adultery
and concubinage persist2.
Most ancient laws on adultery
characterised it as a violation of the
husband’s property rights over his
wife. Husbands were not punished
for adultery both in Judaism and
Roman law where the practice of
polygamy was common. Within
Christianity, later Catholic teaching laid an emphasis on the
sacrament of marriage and the commonly held view is that
the New Testament eliminated the husband’s immunity.
With the obligation of mutual fidelity, both husband and
wife can be guilty of adultery. That is to say, the ‘sin’ now
supposedly applies both ways. Yet in predominantly Roman
Catholic Philippines, penal law continues to reflect vestiges
of the Roman prohibition against adultery.
Legally speaking, the term only
applies to a married woman and a
man who has sexual relations with a
woman he knows to be married. Lacking
any knowledge of a woman’s married
status, the man is exempted from
criminal liability. Husbands who
have extra-marital affairs, however,
cannot be found guilty of adultery.
The crime that applies to the extra-
marital affairs of Filipino husbands
is the law on concubinage and unlike
adultery proof of sexual infidelity is
insufficient. Concubinage is defined
by either scandalous circumstances
or living together.
In recent years, the growing support
for ‘pro-women’ legislation in the
Philippines has led to a variety
of initiatives to address gender
inequality. Many laws penalising
crimes against women were passed
between 1992-2004. The ‘Violence
against women and their children’
law passed in 2004 did not amend
the penal provisions on adultery
and concubinage but now supports
a definition of marital infidelity on
the part of her husband as a form
of ‘violence’ against a woman.
The penal provisions on adultery
and concubinage have also been
the subject of many proposed
amendments before Congress.
Proposals include raising the applicable penalty to setting
a uniform definition for adultery applicable to both wives
and husbands, citing the ‘equality’ of women and men
before the law.
Feminist conundrums
Much like sex work, pornography and abortion,
decriminalising ‘sexual infidelity’ tends to be a thorny issue
within local feminist circles. For while it has been fairly easy
to get a majority of women’s groups to welcome divorce
legislation (even if the majority of legislators refuse to touch
the divorce bill with a ten foot pole), the decriminalisation
of ‘sexual infidelity’ has never been openly engaged with by
local feminist groups.
In my own experience as a lawyer working with feminist
organisations and women’s centres catering to survivors of
partner abuse, marital infidelity has always been considered
a serious issue by many Filipino women. It is considered so
serious in fact that even in cases where women experience
grave physical abuse, the act of sexual infidelity by the
husband is usually thought of as the ‘last straw’ before
many women seek legal assistance. In counselling women
inquiring about the penalty for
sexual infidelity many women react
negatively to the double standard
set between women and men. But
by far, the most common reaction
has been to question the lack of
penal sanctions for the ‘other
woman’. Under the penal law on
concubinage, the penalty for the
‘concubine’ is destierro or mere
‘banishment’.
In certain cases, the acts of sexual
infidelity engaged in by the partners
of women we have counselled
were easy enough to categorise as
abuse. One example was a woman
who complained that her husband
who maltreated her physically,
also demanded that she lie on the
same bed while he had sex with his
mistress. In another case, a woman
who worked as an overseas worker
for many years came home to find
that her husband had used her
remittances to acquire property,
which he registered in his mistress’
name. Yet, many more cases are not
as clear-cut.
A more common example we have often encountered
has been cases where a wife makes the belated discovery
that her husband either got another woman pregnant, or
already has a child (or children) with another woman. In
such cases, many women tend to focus on the issue of
finances, support and inheritance. As I told one woman that
despite the distinction between legitimacy and illegitimacy
in our law, a child born out of wedlock is still entitled to
support from the father; in her emotional state, she ended
up bitterly accusing a newborn baby of being a gold digger.
Indeed such cases have been among the toughest to handle in
feminist counselling. While it is important to lend support
in counselling and for women to receive affirmation as they
grieve over the end of a relationship, it is not necessarily
empowering to peg one’s sense of justice on a set of fixed
legal criteria and definitions.
Law reform has played an important
role in securing justice for women
and in facilitating challenges to
archaic standards which perpetuated
women’s subordinate role and status.
In the case of domestic violence,
sexual harassment and even rape, for
instance, defining the harm in penal
law remains an important strategy
to affirm women’s dignity and
equality. On the other hand, despite
our best intentions, redefning how
an act is viewed within a society
doesn’t simply happen by operation
of law.
Philippine Penal Law on
Adultery and Concubinage
Adultery is committed by any
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, even
if the marriage be subsequently
declared void. (Adultery, Article
334, Revised Penal Code Act 3815)
(1930)
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.
(Concubinage, Article 334, Revised
Penal Code Act 3815) (1930)
When the Family Code was enacted
in 1988, ‘sexual infidelity’ on the part
of either spouse became a ground
for legal separation, eliminating
the gendered distinction between
adultery and concubinage, at least
as far as civil law is concerned. In
2004, a new law penalizing the abuse
of women by their partners (Anti-
Violence Against Women and their
Children Act), classified ‘marital
infidelity’ by husbands against their
wives as a form of violence against
women.
At the time of the Japanese Occupation during World
War II, adultery and concubinage were legal grounds for
securing divorce in the Philippines.
Women’s ‘Sexual Infidelity’
When women have extra-marital affairs, it is not only
much easier for husbands to prosecute but most women
also assume (often correctly), that they will be more
harshly judged. Because the women’s movement has
remained silent on the issue of decriminalising adultery,
many women who are on the other end of the equation,
often assume feminists are an unsympathetic lot and that
like most other people, women’s
rights activists will judge them if
they find out.
This happened in one case where
we handled the custody battle
between a young mother and her
absentee husband. While they
had been living separate lives
for a number of years when the
husband began working abroad,
the woman’s in-laws, prodded by
the husband, decided to literally
kidnap their grandchildren and
refused to turn them over to the
mother who had been in charge of
their care. The woman who was our
client approached us to handle the
custody case but failed to disclose
that there was a pending adultery
case against her that was filed by
her husband. At her wits’ end when
the information was about to be
filed in court she finally told us that
she had a relationship with another
man and bore a child by him. She
decided not to mention it first
when she requested legal assistance
on the custody case because she
feared she would be rejected if we knew about it. She
never expected that a women’s NGO would even be open
to defending her adultery case.
Indeed, even as using the law has become a preferred option
in the realm of women’s rights advocacy, it is important
not to lose sight of the more important aspect of changing
the ways we think of law and the ways we use the law. While
certainly not an easy task, in the case of penal sanctions
for cases of ‘sexual or marital infidelity’, the main issue at
hand involves no less than engaging key notions of justice
and sexual morality and moving beyond the idea of penal
sanctions. In the Philippine context, this conversation
will have to be explored alongside the proposals on both
the practical concerns of divorce legislation as well as
challenging prevailing notions
on sexuality and sexual morality.
All these have become even more
difficult in the face of renewed
Catholic lobbying against ongoing
women’s rights campaigns that it
has labelled ‘DEATH’ (Divorce,
Euthanasia, Abortion, Total repro-
ductive health, Homosexuality and
same sex marriage)
Clearly, however, criminal law is not
an effective means of emphasising
the importance of fidelity as a
value, whether within marriage or
in the context of other meaningful
relationships. What may easily fit
the bill of ‘adultery’ or ‘marital
infidelity’ within conventional
societal standards will often not reflect a complete nor
accurate picture of any single relationship or marriage.
For the women’s movement, focusing exclusively on
‘male sexual and marital infidelity’ almost to the point
of portraying (and explaining) the behaviour as a natural
sex difference does nothing to acknowledge women’s
own sexual needs and capacities. In fact it avoids the
issue of women’s sexuality altogether, as has been the
recognised danger in the process of legal recognition of
‘Violence against Women’. As Alice Miller has pointed
out, ‘Women make demands and ladies get protection’.
For while feminists have become experts in using law to
challenge gender inequality and gendered stereotypes,
securing legitimacy has also often come at the cost of
reifying double standards of sexual morality. In a context
laden with Catholic influences of guilt and repression of
the sexual, women’s entitlement to justice and equality
literally results in a disavowal of the sexual. This is the very
reason why sex work, pornography, abortion and adultery
remain on the fringes of the women’s rights agenda. When
we fall into the pre-framed formulas of the law, we miss
out an opportunity to challenge the very notions around
which women’s ideas about their self-worth, dignity and
sense of justice have been confined.
Selected References:
Manuel Alberto Colayco, III, God,
Family and Country, The Philippine
Debate on the Legalization of Divorce,
Ateneo Law Journal 46 (1), 2001.
‘Morality an issue in Eala case’ PBA
board members available at:
http://newsinfo.inquirer.net/ (Last accessed: July 16,
2008)
Alice Miller, Women Make Demands
and Ladies get Protection, Health and
Human Rights 7 (2), 2004
Estrada v Escritor, A.M. No. P-02-1651,
June 22, 2006. Available at :
http://www.supremecourt.gov.ph/
- 769k (Last accessed: July 16, 2008)
CBCP head scores ‘DEATH’ bills in Congress. Available at:
http://www.gmanews.tv/story/106120/
(Last Accessed: July 16, 2008)
- There is divorce for Muslims under the Muslim Code of
personal laws or Presidential Decree 1983
- Sexual infidelity became a ground for legal separation in
the 1988 Family Code but separation does not entitle either
spouse to remarry nor bar a criminal case for adultery.
Carolina S. Ruiz is a Senior lecturer at the college of law,
university of the philippines, and the chairperson of the
board of Trustees of women’s legal education, advocacy
& defense foundation, Inc. (womenlead). She is a global
perspectives blogger at rhrealitycheck.org.
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