DATE : 04 July 2022

FOR : ATTY. BEBELAN A. MADERA

Associate Solicitor III
(Group 6 Mentor)

FROM : GROUP 6 Members

Burdeos, Edmund Earl Timothy III H.
Estillore, Jiemar R. (Group 6 Representative)
Gigata, Mary Joy D.
Mallari, Pinky Antoinette A.
Nicer, Marianne Joy M.
Tolentino, Abygail A.
Wines, Nikoull C.

SUBJECT: FINAL DRAFT ENDORSEMENT OF MENTOR

---------------------------------------------------------------------------------------------------------------------

Dear Atty. Madera,

Good Day!

As per the memorandum of the OSG LIP 2022 Committee, our fifth assignment is to
submit the final draft of our legal article.

With this, our group submits this draft for your evaluation and endorsement. As with the
previous submission, attached is the “Mentor’s Endorsement” which you may sign to be
submitted by the group.

Thank you very much!

Respectfully yours,

JIEMAR RILLORAZA ESTILLORE

Group 6 Representative

Final Draft Endorsement of Mentor - OSG LIP [Group 6] Page 1 of 15

 MENTOR’S ENDORSEMENT

To: OSG LIP 2022 COMMITTEE

Thru: ATTY. AIZA KATRINA S. VALDEZ

State Solicitor

FINAL DRAFT

Eliminating Gender-Based Discrimination: Harmonizing the Provisions on Adultery and

Concubinage (Articles 333 and 334) in the Revised Penal Code

I. Understanding Gender-based Discrimination

The right to equality and non-discrimination was not easily adopted by the international
community. Progress was made to intensively work on equality, but consecutive war occurred
from discriminatory practices affecting States. In dire need of protection for exploitation of
women then, United Nations General Assembly instituted on September 3, 1981, the
Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) 1 which
has been ratified by 189 states, noting that the Charter of the United Nations reaffirms faith in
fundamental human rights, in the dignity and worth of the human person and in the equal rights
of men and women.

Subsequently, on the 10th day of November 1989, the United Nations Office of the High
Commissioner for Human Rights adopted CCPR General Comment No. 18: Non-discrimination 2
at the Thirty-seventh Session of the Human Rights Committee. It states that non-discrimination,
together with equality before the law and equal protection of the law without any discrimination,
constitute a basic and general principle relating to the protection of human rights. Thus, Article
2, paragraph 1, of the International Covenant 3 on Civil and Political Rights (ICCPR) obligates
each State party to respect and ensure to all persons within its territory and subject to its
jurisdiction the rights recognized in the Covenant without distinction of any kind, such as race,
color, sex, language, religion, political or other opinion, national or social origin, property, birth,
or other status. Article 264 also prohibits any discrimination and guarantees to all persons equal
and effective protection against discrimination on any ground.

Later, by General Assembly Resolution 48/1045 dated December 20, 1993, it created the
only universal legal document explicitly for violence against women, Declaration on Elimination
of Violence Against Women. Article 3 of the Declaration states that women are entitled to the
equal enjoyment and protection of all human rights and fundamental freedoms in the political,
economic, social, cultural, civil or any other field. Its committee6 on the Elimination of

1
A/RES/34/180.
2
HRI/GEN/1/Rev.9(Vol. I).
3
United Nations (General Assembly). 1966. “International Covenant on Civil and Political Rights.” Treaty
Series 999 (December): 171.
4
Id.
5
A/RES/48/104. Declaration on the Elimination of Violence against Women. United Nations. 1993.
6
UN Committee on the Elimination of Discrimination Against Women (CEDAW), CEDAW General
Recommendation No. 19: Violence against women, 1992. https://www.refworld.org/docid/52d920c54.html

Final Draft Endorsement of Mentor - OSG LIP [Group 6] Page 2 of 15

Discrimination against Women has stated regarding Articles 2(F), 5 and 10(C) of the
Convention7 on the Elimination of All Forms of Discrimination against Women that “traditional
attitudes by which women are regarded as subordinate to men or as having stereotyped roles
perpetuate widespread practices involving violence or coercion, such as family violence and
abuse, forced marriage, dowry deaths, acid attacks and female circumcision. Such prejudices
and practices may justify gender-based violence as a form of protection or control of women.
The effect of such violence on the physical and mental integrity of women is to deprive them of
the equal enjoyment, exercise and knowledge of human rights and fundamental freedoms.”

On October 31st of 2000, the United Nations Security Council on its 4213th meeting
adopted Resolution 1325 (2000).8 It reaffirmed the important role of women in the prevention
and resolution of conflicts and in peacebuilding and stressed the importance of their equal
participation and full involvement in all efforts for the maintenance and promotion of peace and
security, and the need to increase their role in decision-making vis-à-vis conflict prevention and
resolution.

At glance, we are undertaking something to eliminate, if not, lessen discrimination,

particularly, towards women. It was then followed by Study Report9 by the Secretary General on
Women, Peace and Security which urges Member States, entities of the United Nations and
civil society to ensure full participation of women and incorporation of gender perspectives. It
was viewed that the battle cry for gender equality is certain. That the masculine norm that
prevailed for centuries has to some extent reduced. Nevertheless, protecting women’s human
rights is a responsibility of all States mandated by human nature. In a Manual on Human
Rights10 by United Nations, it concluded that there are plenty of international legal provisions
guaranteeing the right to equality and non-discrimination. Thus, if discriminatory practices
persist around the world, it is not for the lack of legal rules but rather for lack of execution of
these rules in our societies. Inevitably, failure to implement some of the most fundamental
principles of international human rights law at domestic level also has a negative impact on both
internal and international peace and security.11

Equal treatment of men and women should be of primary concern of each States. As of
2014,12 143 countries have guaranteed equality between men and women in their Constitutions
but 52 have yet to take steps. Getting push back puts more women at a disadvantage,
particularly, in education translating into lack of access skills and limited opportunities. Women’s
and girl’s empowerment is essential to expand economic growth and promote social
development. Regardless of where you live, gender equality is a fundamental human right.
Advancing gender equality is critical to all areas of a healthy society, from reducing poverty to
promoting health, education, protection and well-being of girls and boys.

(last visited on 22 June 2022)

7
UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18
December 1979, United Nations, Treaty Series, vol. 1249, p. 13,)
8
S/RES/1325(2000)
9
A/OSAGI/2004.
10
UN Doc. OHCHR. Human Rights in the Administration of Justice: A Manual on Human Rights for
Judges, Prosecutors and Lawyers. Chapter 13: The Right to Equality and Non-discrimination in the
Administration of Justice.p.679
11
Id.
12
UN Doc. Gender Equality: Why it matters.
https://www.un.org/sustainabledevelopment/wp-content/uploads/2018/09/Goal-5.pdf (last visited on June
22, 2022)

Final Draft Endorsement of Mentor - OSG LIP [Group 6] Page 3 of 15

 In the study conducted by Parmeter (2015), 13 it was concluded that a new understanding
of gender equality must look beyond female-centered measures and create room for men as
well. Incidents of discrimination against women vary, hence, the need for supplementing
enabling domestic laws equipped with the principle of gender equality that also prohibits gender
discrimination on all accounts. As this would be an inch closer to achieving gender equality.\

II. Extent of Gender-based Discrimination in the Philippines

In particular, the Philippines, from the study of Hauser (2017),14 has been successful at
achieving a higher degree of gender equality over other Asian countries, and much of the world
for many reasons. Article II Section 14 of the 1987 Constitution, 15 explicitly asserted that “the
State recognizes the role of women in nation building and shall ensure the fundamental equality
before the law of women and men. In addition, Article XIII Section 1416 provides that “the State
shall protect working women by providing safe and healthful working conditions taking into
account their maternal functions, and such facilities and opportunities that will enhance their
welfare and enable them to realize their full potential in the service of the nation”.

With the constitutional provisions to widen its principles, numerous legislations were enacted
that relate to the various aspects of women and gender concerns. The list includes:
● Gender and Development Law17 where 5% of government agencies’ budget is for
gender concerns
● Anti-Sexual Harassment Act of 199518 which defines sexual harassment and providing
mechanisms
● Anti-Rape Law of 199719 which elevates rape as crime against person
● Women in Nation-Building law20 which allocates a budget for women from development
funds from foreign governments and multilateral institutions.
● Anti-Mail-Order-Bride Law21 making the long practice unlawful.
● Military Training Equality where women can enter the military and police schools and
provide facilities for them.

But these lack impact and don't show the actual situation in the country that would
illustrate actual success. For those positions in the legislative branch which has the power to
create, modify, alter, amend, and repeal laws; on the Fourteenth Congress,22 women in the
Senate merely compose 16.67% of the total seating capacity or 4 out of 24 and on the Fifteenth

13
Keith Cunningham Parmeter, Un(Equal) Protection: Why Gender Equality Depends On Discrimination,
2015, https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?
article=1190&context=nulr (last visited Jun 22, 2022).
14
Cassandra E Hauser, Gender Equality in Southeast Asia: A Comparative Study of Indonesia And The
Philippines, 2017. https://apps.dtic.mil/sti/pdfs/AD1046843.pdf (last visited Jun 22, 2022).
15
Phil. Const. art. II, sec. 14
16
Id., art. XIII, sec. 14
17
Rep. Act No. 9710
18
Rep. Act No. 7877
19
Rep. Act No. 8353
20
Rep. Act No. 7192
21
Rep. Act No. 6955
22
List of Previous Senators. https://legacy.senate.gov.ph/senators/senlist.asp#fourteenth_congress (last
visited on June 22, 2022)

Final Draft Endorsement of Mentor - OSG LIP [Group 6] Page 4 of 15

Congress,23 taking a measly 12.5% or 3 out 24 seats. Over the years taking 25% or 6 out of 24
seats in the Sixteenth and Seventeenth Congress.24 And making a small push to take 29.17% or
7 out of 24 seats in the Senate during the Eighteenth25 and to the Nineteenth Congress.

The statistics on women remain indicative of the deep-rooted and widespread problems
they encounter in their daily lives. The labor market has stereotyped women, disadvantaged
them in jobs and incomes, and even forced them into prostitutions and slave-like work. The
social image of a Filipina is still that of a weak person, poster girl of domestic help, expert in
double burden and a sexual object.26 In instance, the Committee expressed concern about
violence against women in Jordan and Iraq in the form of “honor” killings; under Article 340 of
the Jordanian Penal Code, “a man who kills or injures his wife of his female kin caught in the act
of adultery” is excused. The Committee urged Jordan “to provide all possible support for the
speedy repeal of article 340 and to undertake awareness-raising activities that make ‘honor
killings’ socially and morally unacceptable”.27

In the Philippines, honor-based violence is defined as an offense disproportionately

committed against women, which “has or may have been committed to protect the honor of the
family and/or community”. Beyond being a customary practice in some countries, laws in
defense of “honor” are sometimes in place which exempt husbands or family members from
criminal liability for the killings or violence inflicted against their wives, daughters, or sisters if
these women’s sexual behaviors defy societal or cultural gender norms or standards and thus
besmirch the patriarchal family’s honor or reputation.28

Strictly speaking, Article 247 does not actually define a crime. It provides, rather, a
defense which may be invoked by the accused if the killing or infliction of injuries was done
under the circumstances under the said provision. In essence, Article 247 presumes that a
spouse or a parent is acting in a “justified burst of passion”. However, this comes at the expense
of the safety and security of others, especially women.

While the first two paragraphs of Article 247 of the RPC are applicable to both spouses,
case records show that victims are predominantly the wives. Moreover, the third paragraph of
Article 247 pertains only to daughters and not the sons. These clearly show that the law is
based on discriminatory gender-based assumptions.29 Hence, Former Senator Manny Villar
then filed Senate Bill 2575.30 An Act Repealing Article 247 of Act No. 3815, Also Known as The
Revised Penal Code, On Death or Physical Injuries Inflicted Under Exceptional Circumstances
23
Id.
24
Id.
25
Id.
26
Carlos Antonio Q. Anonuevo. September 2000. An Overview of the Gender Situation in the Philippines.
https://library.fes.de/pdf-files/bueros/philippinen/50069.pdf (last visited June 22, 2022)
27
UN doc. GAOR, A/55/38, p. 20, para. 178-179 (Jordan),
https://documents-dds-ny.un.org/doc/UNDOC/GEN/N00/611/52/PDF/N0061152.pdf?OpenElement (last
visited on June 22, 2022)
28
Upholding the Right to Life and Security of Spouses and Daughters: Repealing Article 247 of the
Revised Penal Code. Policy Brief No. 10. March 19, 2020, https://pcw.gov.ph/upholding-the-right-to-life-
and-security-of-spouses-and-daughters-repealing-article-247-of-the-revised-penal-code/ (last visited on
June 22, 2022)
29
Id.
30
Senate Bill 2575 on 15th Congress

Final Draft Endorsement of Mentor - OSG LIP [Group 6] Page 5 of 15

in the Fifteenth Congress which would neutralize the provisions. However, until now, it is still
pending on the Committee of Constitutional Amendments, Revision of Codes and Laws.

In contrast with Article 333 and 334, these provisions manifest gender bias. RPC Articles
333 and 334 violate the equal protection clause of the 1987 Constitution since the sex-based
classification does not justify the setting of different elements for the same act of engaging in
extra-marital relations. Moreover, the justification for harsher penalties for the crime of adultery,
as first laid down by the Supreme Court in 1911, may no longer be applicable a century later.
Questions on the paternity and filiation of children could already be resolved by availing of the
remedies under Articles 172, 173 and 175 of the Family Code; and by medical advancements
such as DNA testing.

The criminalization of marital infidelity does not only impact women and men
disproportionately, but it also constitutes excessive State interference in the private lives of its
citizens, which violates fundamental law. Private sexual activities between consenting adults are
covered by the principle of privacy as enshrined in the International Convention on Civil and
Political Rights (ICCPR) and jurisprudence based thereon. Laws that penalize marital infidelity
in effect, infringe upon the rights of consenting adults to their privacy.31

International human rights law is, of course, fully applicable to women. The rights
described are equally relevant to women and the female juvenile. However, as evidenced by list
of treaties and declarations, it has been considered necessary, to deal more efficiently with the
serious and multiple violations of the rights of women that still exist in most countries, including
widespread discriminatory practices, to draw up separate gender-specific legal documents
focusing on the needs of women.32

III. The Guarantee of the Equal Protection Clause

The Philippines guarantees the equal protection of a person through the 1987
Constitution.33 Apart from the equal protection clause, the 1987 Constitution likewise provides
for rights which specifically pertain to women, among which are: the recognition of the “role of
women in nation-building”, the State policy that “ensure[s] the fundamental equality before the
law of women and men,”34 and the guarantee of the protection of “working women by providing
safe and healthful working conditions, taking into account their maternal functions, and such
facilities and opportunities that will enhance their welfare and enable them to realize their full
potential in the service of the nation.”35

Equal protection under the laws suggests the entitlement of persons and things similarly
situated to the same treatment, “both as to rights conferred and responsibilities imposed.
Natural and juridical persons are entitled to this guarantee; but with respect to artificial persons,

31
Repeal of RPC provisions on Adultery and Concubinage. Policy Brief. March 18, 2020.
https://pcw.gov.ph/repeal-of-rpc-provisions-on-adultery-and-concubinage/#:~:text=It%20is
%20recommended%20that%20Articles,should%20be%20civil%20in%20nature. (last visited on June 22,
2022)
32
UN Doc. OHCHR. Human Rights in the Administration of Justice: A Manual on Human Rights for
Judges, Prosecutors and Lawyers. Chapter 11: Women’s Right in the Administration of Justice.p.447.
33
Phil. Const. art. III, § 1.
34
Phil. Const. art. II, § 14.
35
Phil. Const. art. XIII, § 14.

Final Draft Endorsement of Mentor - OSG LIP [Group 6] Page 6 of 15

they enjoy the protection only insofar as their property is concerned.” 36 In Tolentino v. Board of
Accountancy, the Supreme Court explained that the clause means “that no person or class of
persons shall be denied the same protection of the laws which is enjoyed by other persons or
other classes in the same place and in like circumstances. (Missouri vs. Lewis, 101 U.S. 22,
31.)”37

In order to validly classify subjects of legislation and invoke the non-applicability of the
equal protection clause, the following requisites must be met: “(1) [the law] is based on
substantial distinctions which make real differences; (2) these are germane to the purpose of
the law; (3) the classification applies not only to present conditions but also to future conditions
which are substantially identical to those of the present; (4) the classification applies only to
those who belong to the same class.”38

In several cases, the Supreme Court applied equal protection in various instances
covered by provisions under different statutes, and even the Constitution itself. For instance, the
Court recognized the equal protection granted to local hires as against foreign hires by an
international school39, and acknowledged the entitlement to the imposition of taxes over all
sugar centrals in the city of Ormoc instead of just one sugar central. 40 On the other hand, the
Court held as valid the classifications made with respect to female domestic overseas workers 41,
the exercise of retail trade by Filipinos against the exercise by aliens 42, and the difference of
treatment of PNP members as opposed to “other classes of persons charged criminally or
administratively insofar as the application of the rule on preventive suspension is concerned” 43,
among others.

The Philippines is replete with laws which provide for equal protection to different
classes or groups of individuals. For instance, the Congress enacted a landmark legislation
which provides for an exhaustive list of the rights of women, among which are right against
discrimination and the right to pursue equal opportunities. 44 Other examples are the following:
laws that recognize that women and children are entitled to a special protection against
violence45, protect children and provides for the policies and guidelines with respect to their
employment46, grant special rights and privileges to disabled persons47, and ordinances issued

36
Antonio E.B. Nachura, Outline Reviewer in Political Law, p. 105 (2014).
37
Tolentino v. Board of Accountancy, G.R. No. L-3062, 28 September 1951.
38
Ormoc Sugar Co. Inc. v. Treasurer of Ormoc City, G.R. No. L-23794, 17 February 1968.
39
International School Alliance of Educators v. Quisumbing, G.R. No. 128845, 1 June 2000.
40
Ormoc Sugar Co. Inc. v. Treasurer of Ormoc City, G.R. No. L-23794, 17 February 1968.
41
Philippine Association of Service Exporters v. Drilon, G.R. No. 81958, 30 June 1988.
42
Ichong v. Hernandez, G.R. No. L-7995, 31 May 1957.
43
Himagan v. People, G.R. No. 113811, 7 October 1994.
44
An Act Providing For The Magna Carta Of Women [The Magna Carta of Women], Republic Act No.
9710 (2009).
45
An Act Defining Violence Against Women And Their Children, Providing For Protective Measures For
Victims, Prescribing Penalties Therefore, And For Other Purposes [Anti-Violence Against Women and
Their Children Act of 2004], Republic Act No. 9262 (2004).
46
An Act Providing For Stronger Deterrence And Special Protection Against Child Abuse, Exploitation
And Discrimination, And For Other Purposes [Special Protection of Children Against Abuse, Exploitation
and Discrimination Act], Republic Act No. 7610 (1992) (as amended).
47
An Act Providing For The Rehabilitation, Self-Development And Self-Reliance Of Disabled Person And
Their Integration Into The Mainstream Of Society And For Other Purposes [Magna Carta for Disabled
Persons], Republic Act No. 7277 (1992) (as amended).

Final Draft Endorsement of Mentor - OSG LIP [Group 6] Page 7 of 15

by local government units that prohibit gender-based discrimination. 48 Even the Civil Code
provides that every person must act with justice 49, and respect the dignity, personality, privacy
and peace of mind of other persons.50

Notwithstanding the above laws and ordinances, women continue to face and suffer
gender-based discrimination by reason of the different treatment in political, social, economic,
and other fields. Women are often denied the equal protection of their rights despite the
recognition of their role in nation building. While discrimination is addressed and prevented by
the State through legislation, it is likewise often manifested in the laws themselves. Among the
discriminatory laws is the specific provision under the Revised Penal Code which penalizes
adultery and concubinage.

IV. Articles 333 and 334 of the Revised Penal Code Manifests Gender Bias

While the rest of the world moves forward, the Philippines remains to be one of the
countries in the Asia-Pacific Region which penalizes adultery and concubinage as crimes
against chastity under the Revised Penal Code. 51 Both crimes are likewise treated as sexual
infidelity under the Family Code. 52 Although these crimes both refer to marital infidelity, a side-
by-side comparison of the two provisions and a survey of its jurisprudential development, it
becomes apparent that the law places the wives at a greater disadvantage than the husbands. 53
The disparity in the provisions with regard to the definition, the evidentiary proof required, and
the penalties imposed upon the offending parties, are summarized, thus:

Art. 333 Art. 334

Definition Adultery is committed by any Any husband who shall keep 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, even if
the marriage be subsequently
declared void.54
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.55

Required 1. The suing spouse is 1. That the man must be

48
Philippine Commission on Women, Enacting an Anti-Discrimination Based on Sexual Orientation and
Gender Identity Law (Policy Brief No. 11), available at https://pcw.gov.ph/enacting-an-anti-discrimination-
based-on-sexual-orientation-and-gender-identity-law/ (last accessed June 22, 2022).
49
An Act To Ordain And Institute The Civil Code Of The Philippines [Civil Code of the Philippines], art. 19
(1949).
50
Civil Code of the Philippines, art. 26.
51
An Act Revising the Penal Code and Other Penal Law [Revised Penal Code], Act No. 3815, arts. 333-
334 (1930).
52
The Family Code of the Philippines [Family Code], Executive Order No. 209, art. 55 (1987).
53
Philippine Commission on Women, Repeal of RPC provisions on Adultery and Concubinage (Policy
Brief), available at https://pcw.gov.ph/repeal-of-rpc-provisions-on-adultery-and-concubinage/ (last
accessed June 22, 2022).
54
Revised Penal Code, art. 333.
55
Revised Penal Code, art. 334.

Final Draft Endorsement of Mentor - OSG LIP [Group 6] Page 8 of 15

 Evidentiary married to the woman sued; married;
Proof 2. The woman sued had 2. That he committed any of
sexual intercourse with the following acts:
another man; and a. Keeping a mistress
3. That as regards the in the conjugal
paramour, he must know dwelling;
the woman to be married at b. Having sexual
the time that he had sexual intercourse under
intercourse with her.56 scandalous
circumstances with a
woman who is not
his wife;
c. Cohabiting with her
in any other place.
3. That as regards the
paramour, she must know
him to be married.57

Penalty Imposed Adultery shall be punished by Shall be punished by prision

prision correccional in its correccional in its minimum and
medium and maximum periods. medium periods.59

If the person guilty of adultery The concubine shall suffer the

committed this offense while being penalty of destierro.60
abandoned without justification by
the offended spouse, the penalty
next lower in degree than that
provided in the next preceding
paragraph shall be imposed.58
Figure 1. Differences between Adultery and Concubinage

Glaringly, the following distinctions can be made:

1. For a woman to be convicted of the crime of adultery, the man only needs to
prove that the woman had sexual intercourse with another man who is not her
husband. Meanwhile, for a man to be convicted of the crime of concubinage, the
woman is required to prove that any of the following circumstances occurred: a)
56
Nicolas & De Vega Law Offices, How to Sue your Wife for Adultery in the Philippines (Legal Advice),
available at https://ndvlaw.com/how-to-sue-your-wife-for-adultery-in-the-philippines/ (last accessed June
22, 2022).
57
Daniella Khylyn D. Glean, Punishing An Unfaithful Husband: Jurisprudential Development of Marital
Infidelity, available at https://lawreview.ust.edu.ph/punishing-an-unfaithful-husband-jurisprudential-
development-of-marital-infidelity/ (last accessed June 22, 2022).
58
Revised Penal Code, art. 333.
59
Revised Penal Code, art. 334.
60
Id.

Final Draft Endorsement of Mentor - OSG LIP [Group 6] Page 9 of 15

 that the man kept a mistress in the conjugal dwelling; b) that the man had sexual
intercourse under scandalous circumstances with a woman who is not his wife;
or c) that the man cohabited with another woman in any other place.
2. Despite the more stringent requirements that a woman must prove to
successfully convict a man for the crime of concubinage, the man convicted of
such crime suffers a lesser penalty than a woman convicted with the crime of
adultery.

The Supreme Court has justified the harsher penalties imposed in the crime of adultery
under the antiquated notion that such crime leads to the possibility of bringing illegitimate
children into the family without the knowledge of the husband. 61 With the advancements in
technology and the development of Philippine laws, such justification as first laid down by the
Supreme Court in 1911, may no longer be applicable a century later. In fact, questions on the
paternity and filiation of children could already be resolved by availing of the remedies under
Articles 172, 173 and 175 of the Family Code; and through DNA testing.62

Equality of all persons before the law is a specific constitutional guarantee wherein no
person is treated differently because of who he is or what he is or what he possesses. In Garcia
v. Drilon, the Supreme Court recognized the historical disparity between men and women as a
valid basis to uphold the constitutionality of a special law that specifically protected women and
children. Among others, the Supreme Court observed that there indeed exists an unequal power
relationship between women and men; the fact that women are more likely than men to be
victims of violence; and the widespread gender bias and prejudice against women.63 Instead of
balancing the scales in favor of an already disadvantaged group, the provisions on adultery and
concubinage under the Revised Penal Code continue to breed an imbalanced social structure
for women. It is said that the goddess of justice wears a blindfold to ensure that she will not
discriminate against suitors before her, and yet, in this case, it seems she wears the same in
complete disgust of the glaring prejudices the assailed provisions bring about.

V. Jurisprudential Treatment of Adultery and Concubinage

As early as 1930, the Supreme Court has observed the inequality between adultery and
concubinage. In Maulit v. Samonte,64 the Court noted that the authors of the Revised Penal
Code considered concubinage a lesser offense than adultery and therefore prescribed separate
and different penalties for the two offenses. In fact, Criminal Law experts are of the opinion that
the codal provisions on adultery and concubinage are terribly outmoded and should be
drastically revised.65 For instance, “married women may be convicted of adultery for having
sexual intercourse with any man not her husband, regardless of the validity of her marriage. On
the other hand, sexual relations of a married man with a woman who is not his wife is not
always a crime. It only becomes a crime if there is cohabitation, if it is committed under
scandalous circumstances, or if the sexual relations were committed with a married woman, and
he had knowledge of that fact.”66

61
Supra note 3.
62
Id.
63
Garcia v. Drilon, G.R. No. 179267, 25 June 2013.
64
Maulit v. Samonte, G.R. No. 34484, 13 December 1930
65
Estrada v. Escritor, A.M. No. P-02-1651 (formerly OCA I.P.I. No. 00-1021-P), Dissenting opinion of J.
Ynares- Santiago
66
People v. Caoili, G.R. Nos. 196342 & 196848, 8 August 2017, Dissenting opinion of J. Leonen

Final Draft Endorsement of Mentor - OSG LIP [Group 6] Page 10 of 15

 In Falcis III vs. Civil Registrar General, the Court explained that adultery is committed by
a wife who had sex with a man who is not her husband. In contrast, concubinage is committed
when a husband keeps a mistress in the conjugal dwelling, has sex under scandalous
circumstances, or cohabits in another place with a woman who is not his wife. While a woman
who commits adultery shall be punished with imprisonment, a man who commits adultery shall
only suffer the penalty of destierro. Further, a husband who engages in sex with a woman who
is not his wife does not incur criminal liability if the sexual activity was not performed under
"scandalous circumstances.”67 Indeed, provisions of adultery and concubinage differ severely in
terms of prescribed penalty. Adultery prescribes a penalty of prisión correccional in its medium
and maximum periods or imprisonment from 2 years, 4 months and 1 day to 6 years for both the
guilty wife and paramour whereas a penalty of prisión correccional in its minimum and medium
periods or imprisonment from 6 months and 1 day to a maximum of 4 years and 1 day for the
husband alone in the crime of concubinage and destierro for the concubine.

Adultery

Adultery is a crime of result and not of tendency. It is an instantaneous crime which is

consummated and exhausted or completed at the moment of the carnal union. Each sexual
intercourse constitutes a crime of adultery.68 Adulterous acts committed by the offenders are
made towards the offended husband, the status of the marriage, and the interest of the State in
maintaining and preserving such status of the husband and wife. Encroachment or trespass
upon the status protected constitutes a crime and there is no constitutional or legal provision
which bars the filing of as many complaints for adultery as there were adulterous acts
committed, thus each constituting one crime.69

The rationale for punishing the crime of adultery is the danger of introducing spurious
heirs into the family, whereby the rights of the real heirs may be impaired and a man may be
charged with the maintenance of a family not his own.70 In other words, the commission of
adultery may result in the introduction of another man’s blood into the family so that the
offended husband may have another man’s son bearing his (husband’s) name and receiving
support from him.71

Concubinage

Concubinage, similar to adultery, is a violation of the marital vow. However, concubinage

is different from adultery in the sense that infidelity of the husband does not bring into the family
spurious offspring.72

Unlike adultery which is consummated and completed at the moment of sexual

intercourse, concubinage may be committed in three ways: (a) by keeping a mistress in the
conjugal dwelling; (b) by having sexual intercourse, under scandalous circumstances, with a
woman not his wife, or (c) by cohabiting with her in any other place. 73 Thus, a married man is
liable for concubinage only when he does any of the three acts specified in Article 334 of the
67
Falcis III v. Civil Registrar General, G.R. No. 217910, 3 September 2019
68
Cuello Calon, Derecho Penal, Vol. II, p. 569
69
People v. Zapata, G.R. No. L-3047, 16 May 1951
70
U.S. v. Mata, G.R. No. L-6300, 2 March 1911; Pilapil v. Ibay-Somera, G.R. No. 80116, 30 June 1989
71
Luis B. Reyes, Revised Penal Code, 2021 Edition, p. 1140
72
Reyes, supra, p. 1136
73
Revised Penal Code, art. 334

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Revised Penal Code. If his sexual relations with a woman not his wife is not any one of them, he
is not criminally liable.74

As to the first method of committing concubinage, the Supreme Court explained in U.S.
v. Macababbag, that a married man who keeps a mistress in his conjugal dwelling is guilty of
the crime of concubinage. "Scandalous circumstances" are not necessary to make him guilty of
said crime. It is only when the mistress is kept elsewhere that "scandalous circumstances"
become an element of the crime.75

With respect to the second way of committing the crime, i.e., concubinage by having
sexual intercourse under scandalous circumstances, the scandal produced by the concubinage
of a married man occurs not only when (1) he and his mistress live in the same room of a
house, but also when (2) they appear together in public, and (3) perform acts in sight of the
community which give rise to criticism and general protest among the neighbors.76

As to the third manner of committing concubinage, the court defined cohabitation in

People v. Pitoc as two people who dwell or live together as husband and wife; to live together
as husband and wife although not legally married; to live together in the same house, claiming
to be married; to live together at bed and board.77

A man cannot be guilty of concubinage without proving the presence of the three
circumstances leaving a more discriminatory view on penalizing women under adultery. Both
crimes are the same in nature where both are offenses against the sanctity of marriage yet
under the eyes of law, a woman’s crime is more obscene than that of a man’s. In sum, the law
sanctions monogamy. To strengthen this policy, the RPC treats extramarital affairs as felonies,
i.e., adultery and concubinage. But, in so doing, the law infringes on the right to equal
protection enshrined in the Constitution by discriminating against married women. Thus, the
provisions on adultery and concubinage under the RPC must be amended to safeguard the right
to equal protection and to carry out the Constitutional mandate 78 of ensuring the fundamental
equality before the law of women and men. However, this task of amendment belongs to
Congress, and not to the Supreme Court.

VI. Consequences of Repeal

With the repeal of the provisions on adultery and concubinage in the RPC, one may ask,
if the state condones forms of infidelity. As observed by the Philippine Commission on
Women,79 said provisions should be decriminalized or removed from the RPC since they involve
violation of marriage contract. Therefore, the policy recommendation is that the legal liability
should only be civil in nature.80 In support of this position, the repeal will not result in the total

74
People v. Santos, C.A., 45 O.G. 2216
75
U.S. v. Macababbag, G.R. No. 10564, 6 August 1915
76
Reyes, supra, p. 1138
77
People v. Pitoc, G.R. No. 18513, 18 September 1922
78
Phil. Const. art. II, sec. 14
79
Eliminating Discrimination Against Women in the Revised Penal Code (RPC): Decriminalizing Adultery
and Concubinage, available at https://pcw.gov.ph/eliminating-discrimination-against-women-in-the-
revised-penal-code-rpc-decriminalizing-adultery-and-concubinage/ (last modified 18 March 2020).
80
Ibid.

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elimination of any kind of liability as there remains available remedies that can be resorted to by
the aggrieved parties.81

Under the Family Code, as to the civil matter, adultery and concubinage are still
illegal/unlawful so an aggrieved/offended/victimized spouse can still file for legal separation on
the ground of sexual infidelity, and/or a possible manifestation of psychological incapacity as a
ground for declaration of nullity of a marriage;82

Further, marital infidelity (concubinage) will continue to be one of the manifestations of

psychological violence against women under RA 9262 (Anti-Violence Against Women and Their
Children Act), a special law that protects women and their children from abuses and violence by
their husband and even intimate partners;83

On the other hand, sexual infidelity (adultery or concubinage) will continue to be one of
the bases for an aggrieved/offended/victimized spouse to sue for ordinary damages under the
Civil Code (i.e. psychological pain and suffering) against the offending/guilty spouse and the
third party involved.84

However, the position that adultery and concubinage will be no longer considered as
criminal offenses is untenable. Simply put, only maintaining civil liability for breach of marital
vows is not sufficient. Though marriage is civil in nature, it is not an ordinary contract. Even the
1987 Constitution recognizes the value of marriage as an inviolable social institution because it
is the foundation of the family and that the State is given the duty to protect it. As further
provided in the Family Code85, marriage is a special contract of permanent union between a
man and a woman entered into in accordance with law for the establishment of conjugal and
family life. As such, unlike ordinary contracts, the State is interested in ensuring that the parties
to a contract of marriage, which is special in nature, faithfully complies with the attendant legal
duties and responsibilities. The breach of such should not only amount to civil liability alone but
must still include criminal liability. Hence, there should be instead a marital or sexual infidelity
provision that should harmonize adultery and concubinage to remove the gender-based
discrimination in the RPC. With this, criminal liability still stands but with a single provision that
would cater to both men and women.

VII. Recommendation

This paper recommends that Articles 333 and 334 on Adultery and Concubinage under
the Revised Penal Code be repealed and replaced with a single provision penalizing marital
infidelity.

We propose the following amendments inspired in part by House Bill No. 529086:

81
Ibid.
82
Ibid.; Article 55 (88), Family Code.
83
Ibid.; Section 3(a), Republic Act 9262: Anti-Violence Against Women and Their Children Act of 2004.
84
Ibid.; Article 2197, Civil Code.
85
Section 1, Family Code.
86
Press Release: “Amend gender-biased provisions of law on marital infidelity” available at
https://www.congress.gov.ph/press/details.php?pressid=9596&key=infidelity (Published on May 13,
2016).

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 “ARTICLE 333. Who are Guilty of Marital Infidelity. — Marital infidelity
is committed by:

1. any legally married person,

a. who shall keep a paramour in the conjugal dwelling; or
b. shall cohabit with a paramour in any other place; or
c. shall have sexual intercourse with another person other
than the married person’s spouse; and

2. by the person kept in the conjugal dwelling of the married person, or

who cohabits with the married person, or has carnal knowledge with the
married person, knowing the person to be legally married even if the
marriage be subsequently declared void.”

“ARTICLE 334. Penalties. — Marital infidelity shall be punished by

prisión correccional.

The penalty of prisión correccional in its maximum period shall be

imposed when the married person keeps a paramour in the conjugal
dwelling.

The penalty of prisión correccional in its medium period shall be imposed

when the married person cohabits with a paramour in any other place.

The penalty of prisión correccional in its minimum period shall be

imposed when the married person shall have sexual intercourse with a
person other than his/her spouse.

If the person guilty of marital infidelity committed the offense while being
abandoned without justification by the offended spouse, or, when the
accused spouse had been subjected to repeated physical violence or
grossly abusive conduct by the offended spouse, the penalty next lower in
degree than that provided in the next preceding paragraphs shall be
imposed.”

The proposed amendments retained the punishable acts under Concubinage except for
the requirement of scandalous circumstance in cases of sexual intercourse with another person
other than the married person’s spouse. The penalties provided also differ for each act with
heavier penalties imposed in cases where a paramour is kept in the conjugal dwelling or when
the married person cohabits with a paramour in any other place. Heavier penalties are imposed
on these cases as such acts are committed with public knowledge thereby causing immense
mental and emotional anguish, and public ridicule to the spouse and to their children, if there
are any. The act of keeping a paramour in the conjugal dwelling may also expose children to an
unhealthy family structure and make them vulnerable to abuse within the household.

On the other hand, penalties are mitigated when a person guilty of marital infidelity
committed the offense while being abandoned without justification by the offended spouse, or,
when the accused spouse had been subjected to repeated physical violence or grossly abusive
conduct by the offended spouse. Although these mitigating circumstances do not in any way
condone marital infidelity, the law wishes to grant partial relief in cases where the conduct of the
offended spouse contributed to what impelled the offending spouse to commit the offense.

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 The amended provisions also expand the coverage of the law by placing within its ambit
those cases wherein the paramour is of the same sex with the married offender. This addresses
the gap in the current version of the law where the act of infidelity cannot be punished under the
Revised Penal Code when the paramour is someone of the same sex.
I hereby certify that after due evaluation, the above-mentioned second draft of
the legal article is endorsed subject to the Committee’s approval.

Mentor: ATTY. BEBELAN A. MADERA

Associate Solicitor III

Signature:

Date Submitted: 04 July 2022 (Monday)

Date Approved:

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