NEW ERA UNIVERSITY

College of Law

Juris Doctor

“Death Under Exceptional Circumstances:

A Condonation of Honor – Based Violence”

MALLARI, Justine Victoria M.

3A-JD4
 I.

INTRODUCTION

This article aims to explore and rationalize the need for the
repeal of Article 247 of the Revised Penal Code, which condones
the death or physical injuries inflicted under exceptional
circumstances on a daughter or a wife by her father or her
husband.

The provision states that:

“Any legally married person who having

surprised his 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, or shall inflict upon them any serious
physical injury, shall suffer the penalty of destierro.
If he shall inflict upon them physical injuries of any
other kind, he shall be exempt from punishment.
These rules shall be applicable, under the same
circumstances, to parents with respect to their
daughters under eighteen years of age, and their
seducer, while the daughters are living with their
parents.”

This provision absolves anyone who has caught either their spouse
or their minor daughter committing sexual acts with another
person, and has killed or injured them, from any harsh criminal
liability. The penalty prescribed for the offender, destierro, is
merely intended as a protection to the offender themselves from
the retaliation of the relatives of the victim. It is not an actual
punishment. On the other hand, if the physical injuries inflicted
are less than serious, the offender is exempt from punishment.

Philippine jurisprudence is replete with cases concerning the

abovementioned provision. In People v. Araquel, the Supreme Court
held that “Article 247 of the Revised Penal Code does not define
and provide for a specific crime, but grants a privilege or benefit to
the accused for the killing of another or the infliction of serious
physical injuries under the circumstances therein mentioned.” 1
Furthermore, it is ruled in a subsequent case that Article 247, not
being a punishable act, cannot be qualified my any aggravating or

1
G.R. No. L-12629, 9 December 1959.

2
mitigating circumstances.2 This strengthens the provision’s
absolutory nature towards the accused.

Although some may reason that this provision embodies and

supports Filipino morals and the conservativeness observed in the
Filipino family dynamic, it could also be said that it directly
violates the special protection granted by various other laws to
women, and most importantly, the right to life innate in every
human being.

According to the 2017 National Demographic and Health Survey of

the Philippine Statistics Authority, one in four married women
aged 15 to 49 (26%) have experienced physical, sexual, or
emotional violence from their husband or partner. 14% of these
women have experienced physical violence. 3 In 2019, Sylvia
Claudio of the University of the Philippines’ College of Social Work
and Community Development, called the violence against women
in the Philippines an “epidemic.” 4 These statistics show how
prevalent domestic violence is in the country. Clearly, the
continued enforcement of Article 247’s exemption is not only
detrimental to the rights of women, but also to the fundamental
social institution of our country – the family.

2
People v. Abarca, G.R. No. 74433, 14 September 1987.
3
https://psa.gov.ph/content/one-four-women-have-ever-experienced-spousal-violence-
preliminary-results-2017-national
4
https://www.rappler.com/nation/225275-expert-violence-against-women-epidemic-philippines

3
 II.

BACKGROUND

In some jurisdictions, most prominently in the Middle East

and in South Asia, there are so-called laws in defense of honor.
Under such laws, husbands or family members are exempted from
criminal liability for the murders or other forms of violence they
committed against their wives, daughters or sisters.

Honor killings or honor-based violence may be defined as acts of

violence, usually murder, committed by male family members
against female family members who are perceived to have brought
dishonor upon the family.5

In the Philippines, the law which condones such offenses is Article

247 of the Revised Penal Code, entitled death or physical injuries
inflicted under exceptional circumstances. Under the law, a spouse
adjudged guilty of killing or inflicting serious physical injuries on
the other spouse caught in the act of committing sexual
intercourse with another person shall only be penalized with
destierro or in layman’s term, banishment.

The rationalization of the enactment of the law is that the spouse

or the family member was acting out of a justified burst of passion 6
in the context of protecting their family’s honor. Such is illustrated
by the fact that the offense must be a direct by-product of the
accused’s rage. The death or injury of the victim must be caused
by “the outrage overwhelming the accused after chancing upon the
spouse in the basest act of infidelity. 7” It should have been actually
motivated by the a blind impulse, and not influenced by external
factors.

Another reason behind the enactment of the provision, as

discussed by Justice Laurel in his dissenting opinion on People v.
Gonzales8, is the influence of the Spanish colonial rule upon
Philippine laws. Being a former colony of Spain, our penal laws
borrowed the same language of the Spanish Penal Code which
included the same exemption to husbands or wives who “shall kill”
their spouses immediately after being caught “in the act of
committing sexual intercourse.”

5
https://www.hrw.org/legacy/press/2001/04/un_oral12_0405.htm
6
People v. Gonzales, 69 Phil. 66.
7
People v. Abarca, 153 SCRA 735.
8
Ibid.

4
The exemption can also found in the modern penal codes of Chile,
Colombia, and Ecuador, where there are several codes which
justify the killing of the wife and her paramour who are caught in
the act of adultery.

But whatever may be the case, fundamentally and rationally, the

codes and laws of all countries express the same sentiment: the
condemnation of the iniquity at demolition of the fundamental unit
of social order and the destruction of the felicity of family and
home.9 Such may be the ultimate reason as to why Article 247 was
deemed necessary to be included in the Revised Penal Code.

There have been many attempts to repeal Article 247 and

permanently exclude it from the Revised Penal Code. In House Bill
5104, Party-list Representatives Emmi A. de Jesus and Luzviminda
C. Ilagan of GABRIELA pointed out that Article 247 violates Article
III, Section 1 of the Constitution, which prohibits the taking of life
without due process of law.

More recently, Senator Grace Poe sought to repeal Article 247

through Senate Bill No. 1410. Poe said the Article 247 is an
outright discrimination against women and girls, and legitimizes
violence against children.

It has also been argued that Article 247 directly contravenes the
Philippine government’s obligation as a signatory of the Convention
on the Elimination of All Forms of Discrimination Against Women
or CEDAW, which obligates it signatories to repeal all
discriminatory laws and practices, and provide effective
mechanisms and remedies where women can seek redress for
rights violations of their rights.

Ultimately, the continued enforcement and effectivity of Article 247

of the Revised Penal Code presents various contradictions to
existing laws and to the 1987 Constitution, as well as being a
discriminatory legislation against women and children. This article
will further discuss why it may no longer be deemed applicable to
modern Filipino society.

9
People v. Gonzales, 69 Phil. 66.

5
 III.

PROOF OF THE CLAIM

Article 247 is in direct contravention to the right to life

enshrined in the Constitution.

No person shall be deprived of life, liberty, or property without

due process of law, nor shall any person be denied the equal
protection of the laws.10

Our Constitution seeks to protect and ensure that every single one
of its citizens, regardless of age, sex, or social status, is protected
by this fundamental clause. These three – the right to life, the right
to liberty, and the right to property, are the basic human rights
which are given the highest degree and quality of protection by the
Constitution itself.11

The doctrine of preferred rights is explained by the Supreme Court

in the case of Philippine Blooming Mills Employees Association v.
Philippine Blooming Mills Co.12 The Court explained that in the
hierarchy of civil liberties, there are rights safeguarded and
sanctioned in the Constitution that occupy a preferred position
being essential to the preservation and vitality of civil and political
institutions. Such priority gives such liberties the sanctity and the
sanction not permitting dubious intrusions.

Aside from its organic law, the Philippines is also bound by its
international commitments to different treaties and agreements
which obliges it to uphold basic human rights. Probably the most
predominant one of these is the Universal Declaration of Human
Rights, which states that “everyone has the right to life, liberty and
security of person.13”

The right to life is inherent to every human being regardless of age,

sex, race, religion, or any other factors that makes an individual
unique. Its rationale is merely for the reason that one exists. No
one shall be arbitrarily deprived of their life.

The right to life is the principal reason as to why Article 247 of the
Revised Penal Code should be repealed. As discussed earlier,

10
Section 1, Article III, 1987 Constitution.
11
Bernas, J., The 1987 Constitution of the Republic of the Philippines: A Commentary, 2009.
12
G.R. No. L-31195, 5 June 1973.
13
https://www.un.org/en/udhrbook/pdf/udhr_booklet_en_web.pdf

6
Article 247 grants immunity from any harsh criminal liability to
the accused who kills or seriously injures their spouse or minor
daughter in circumstances when the accused catches them
committing sexual acts with another person. The accused merely
sentenced to destierro, or mere banishment. Such penalty may be
viewed as more of a benefit, since it aims to distance the accused
from possible retaliation by the family of the victim. Ultimately,
Article 247 works to vindicate the actions of the accused who, in
their passion and obfuscation, committed a dastardly act which
would have been abhorred by the law otherwise.

Is this not directly contradictory to the protection of every

individual’s right to life that our Constitution aims to uphold?
There is no higher right than life. The most basic and most
important of rights is the right to life. Without life, the other rights
cease in their enjoyment, utility and expression. 14 So why then
would we let our courts allow that the taking of a life go
unpunished?

Killing is killing. The acts committed under Article 247 may be

akin to homicide, or even murder. Our Revised Penal Code
provides for these offenses, but what truly makes death under
exceptional circumstances any different?

To provide clarity for this conundrum, we must first differentiate

the elements of each crime. Murder is provided for under Article
248 of the Revised Penal Code, while homicide in Article 249.

Art. 248. Murder. — Any person who, not falling

within the provisions of Article 246 shall kill
another, shall be guilty of murder and shall be
punished by reclusion temporal in its maximum
period to death, if committed with any of the
following attendant circumstances:

1. With treachery, taking advantage of superior

strength, with the aid of armed men, or employing
means to weaken the defense or of means or persons
to insure or afford impunity.

2. In consideration of a price, reward, or promise.

3. By means of inundation, fire, poison, explosion,

shipwreck, stranding of a vessel, derailment or
14
Echegaray v. Secretary of Justice, G.R. No. 132601, 19 January 1999.

7
 assault upon a street car or locomotive, fall of an
airship, by means of motor vehicles, or with the use
of any other means involving great waste and ruin.

4. On occasion of any of the calamities enumerated in

the preceding paragraph, or of an earthquake,
eruption of a volcano, destructive cyclone, epidemic
or other public calamity.

5. With evident premeditation.

6. With cruelty, by deliberately and inhumanly

augmenting the suffering of the victim, or outraging
or scoffing at his person or corpse.

Art. 249. Homicide. — Any person who, not falling

within the provisions of Article 246, shall kill
another without the attendance of any of the
circumstances enumerated in the next preceding
article, shall be deemed guilty of homicide and be
punished by reclusion temporal.

According to the provisions above, murder and homicide are

similar in that they are both committed if a person kills another.
The only glaring difference is that murder may only be committed
with the presence of the attendant circumstances enumerated by
law.

To reiterate, death or physical injuries inflicted under exceptional

circumstances is committed when the following elements are
present:15

1. That a legally married person or a parent surprises

his spouse or his daughter, the latter under 18 years
of age and living with him, in the act of committing
sexual intercourse with another person;

2. That he or she kills any or both of them, or inflicts

upon any or both of them any serious physical injury
in the act or immediately thereafter, and;

3. That he has not promoted or facilitated the

prostitution of his wife or daughter, or that he or she

15
Reyes, L., The Revised Penal Code Book Two, 2017.

8
 has not consented to the infidelity of the other
spouse.

Clearly, what makes Article 247 different from murder and

homicide is the familial relationship that the accused has with
their victim. Another difference is that in Article 247, the killing
must be the direct product of the rage of the accused. 16

Is familial relation and rage enough to justify the acts of an

individual accused under Article 247? If we rationalize our answer
with regard to the fundamental right to life safeguarded by the
Constitution, such factors may be deemed nothing but
inconsequential. Killing is killing, and setting apart a death under
“exceptional” circumstances deviates from the sanctity of the right
to life.

Article 247 is discriminatory nature.

It is strongly suggested that Article 247 points more in the

direction of offenses committed against women by men. Although it
does not specifically single out husbands committing offenses
against their wives, such may be inferred from the wording of the
provision that this may be the case.

Technically speaking, the first paragraph of the law applies to both

the husband and the wife as the term used was “any legally
married person”. Note, however, that the said provision seems to
have been originally crafted in contemplation of a situation where a
man catches his wife in bed with another. This is seen from the
consistent use of the terms “he” or “his” when referring to the
offender.

The third paragraph of Article 247 pertains to daughters under

eighteen (18) years of age. This is more problematic than the first
two paragraphs for two reasons:

First, the law, which applies only to daughters and not sons,
blatantly discriminates against women and reinforces the notion
that female children are treated as inferior to male children who
are given more freedom and importance in the family.

The law is clearly based on unfair gender-based assumptions, such

as the notion that women should keep a particular sexual conduct
16
Supra.

9
or should maintain certain moral standards, that women are
wards or property of men or her parents, and that a woman’s
deviation from the sexual or “moral” norm excuses her parents,
particularly her father’s, killing or injuring her.

Second, by allowing parents to inflict harm or to kill a minor

daughter under the above-stated “exceptional” circumstance, the
law contradicts the well-established principle of promoting the best
interest of children at all times, embodied not only in our domestic
laws but also in international covenants to which we are a
signatory.

Repealing Article 247 responds to the government’s international

obligation under the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW), particularly the state
obligation to repeal all discriminatory laws and practices, and
provide effective mechanisms and remedies where women can seek
redress for rights violations of their rights.17

It is also in response to the Convention of the Rights of the Child,

particularly the state obligation to put the best interests of the
child as a primary consideration in all actions concerning children,
and to take all appropriate measures to ensure that the child is
protected against all forms of discrimination or punishment on the
basis of the status, activities, expressed opinions, or beliefs of the
child's parents, legal guardians, or family members, and to protect
the child from all forms of physical or mental violence, injury or
abuse while in the care of parents, legal guardians or any other
person.18

At any rate, Article 247 must not be countenanced because it is a

clear violation of human rights. A person’s anger or extreme
passion cannot be a license to inflict physical harm or death upon
a spouse or a daughter, even when caught having sexual
intercourse with another. There is a law which criminalizes the act
of sexual infidelity after all, and in the case of spouses it is even a
ground for legal separation. By maintaining Article 247 in the
Revised Penal Code, we are effectively giving more importance to a
person’s reputation, image, and esteem than to the lives of actual
people.

17
https://www.ohchr.org/en/professionalinterest/pages/cedaw.aspx
18
https://www.ohchr.org/en/professionalinterest/pages/crc.aspx

10
Article 247 is a dated law. It contravenes our present laws and
international obligations, and is no longer applicable to
modern Filipino society.

The Revised Penal Code of the Philippines was approved on

December 8, 1930 and took effect on January 1, 1932, more than
a year after its approval. It was drafted in 1927 and was based on
the old Spanish Penal Code which was its predecessor.

Being a colony of Spain at the time, the Spanish Penal code was
made applicable and was extended to the Philippines by the Royal
Decree of 1870.19 Clearly, our penal code is a product of a bygone
era. It was handed down to us by our colonizers and may not be
the best reflection of the ever-changing Filipino society.

The Revised Penal Code was enacted prior to our current

Constitution and prior to some of our current international
obligations.

The 1987 Constitution recognizes the role of women in nation-

building and ensures the fundamental equality before the law of
women and men (Section 14, Article II). The unfair gender-based
presumptions enshrined in Article 247 are clearly contradictory to
this provision since, as discussed earlier, Article 247 seems to have
been originally crafted in contemplation of a situation where a man
catches his wife in bed with another. How is this equality of the
genders between the law?

Section 3, Article XV also mandates that the State shall afford

special protection to children from all forms of neglect, abuse,
cruelty, exploitation, and other conditions prejudicial to their
development.

According to a study conducted by the Council for Welfare of

Children and the United Nations Children’s Fund, most children
experience violence in their own homes. It was found that 60% of
physical violence suffered by children happen in their homes, while
8 out of 10 children say that they have experienced a form of
abuse.20

To reiterate, the third paragraph of Article 247 pertains to

daughters under eighteen (18) years of age. The continued
enforcement of Article 247 perpetuates the notion that daughters
19
https://en.wikipedia.org/wiki/Philippine_criminal_law
20
https://www.rappler.com/nation/154702-child-abuse-happen-home-study

11
may be treated as inferior from sons, and that the “honor” or
reputation of the family is much more important that the safety
and well-being of their female children.

The principle of death under exceptional circumstances also

contravenes Republic Act No. 9262, more commonly known as the
Anti-Violence Against Women and the Children Act or “VAWC.”

The VAWC, signed on March 2, 2004, affords and recognizes the

need to protect the family and its members, particularly women
and children, from violence and threats to their personal safety
and security.

Furthermore, Article 247 violates Republic Act No. 9710, or the

Magna Carta of Women. Section 12 provides for the amendment or
repeal of laws that are discriminatory to women.

Another current law, Republic Act No. 7610 or the Special

Protection of Children Against Abuse, Exploitation Discrimination
Act, mandates that the best interests of children shall be the
paramount consideration in all actions undertaken by legislative
bodies concerning them.

These contemporary laws reflect the state of modern Filipino

society far better than what was enacted more than 80 years ago.
It would be unreasonable and somewhat irresponsible to allow
Article 247 of the Revised Penal Code to continue in force and
effect to grant immunity from appropriate punishment those
accused who must be held responsible for their crimes.

12
 IV.

CONCLUSION

Article 247 of the Revised Penal Code, death under

exceptional circumstances, was enacted to absolve anyone who has
caught either their spouse or their minor daughter committing
sexual acts with another person, and has killed or injured them,
from any harsh criminal liability.

Article 247 must be repealed and given no force and effect as it is

an outdated law which was merely handed down to us by our
Spanish colonizers. It may be considered as a condonation of
honor-based violence, which is mostly committed by male family
members against female family members who are perceived to have
brought dishonor upon the family.21

The infliction of physical injuries or death upon a person due to

mere passion and obfuscation should not find any place in our
laws today. This is a clear violation of human rights and must
therefore not be tolerated. Moreover, to essentially allow parents to
commit this crime against their minor daughter is to discriminate
against women who do not conform to society’s conservative
expectations of what her sexual behavior should be.

Repealing Article 247 of the Revised Penal Code will help eliminate
discrimination against women, promote women’s rights and
enhance the status of women in the Philippine society. It will also
uphold the right to life of female children.

Doing the same also responds to the international obligations

entered upon by the State, most of which urge the repeal of laws
which are discriminatory against women and children.

It is recommended that Article 247 of the Revised Penal Code be

repealed, consistent with the Constitutional provision that “no
person shall be deprived of life, liberty, or property without due
process of law.” The circumstances referred to in Article 247 may
be treated as a possible mitigating circumstance that would allow
imposition of lesser penalty, but definitely not absolute exemption.

21
https://www.hrw.org/legacy/press/2001/04/un_oral12_0405.htm

13