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Adultery, A333 Revised Penal Code

Adultery refers to an offense by a married woman having sexual intercourse with a man not her husband.

1. Concept

Adultery – means “the carnal relation between a married woman and a man who is not her husband, the latter knowing her to be married.” (Fernandez v. Lantin, G.R. No. L-44759, December 17, 1976)

Adultery… is committed by a married woman who has a relationship with a man who is not her husband. (Anonymous Complainant v. Dagala, En Banc, A.M. No. MTJ-16-1886, Per Leonen, J., Concurring and Dissenting; Falcis III v. Civil Registrar General, En Banc, G.R. No. 217910, September 03, 2019, Per Leonen, J.)

a. Legal basis

Article 333. Who are guilty of adultery. – 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 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.

(Revised Penal Code)

2. Modes of commission

The following are the modes of committing the offense:

1) Married woman having sexual intercourse with man not her husband

a. Mode 1: Married woman

Elements of the offense of adultery:

1) The offender is a married woman;

2) She has sexual intercourse with a man not her husband;

3) Man knows that woman is married. (REVISED PENAL CODE, Article 333)

1) Element 1: Married woman

Adultery… is committed by a married woman who has a relationship with a man who is not her husband. (Anonymous Complainant v. Dagala, supra; Falcis III v. Civil Registrar General, supra.)

2) Element 2: Sexual intercourse with a man

Other than the married woman, the other party to the offense is specifically identified to be a man.

a) Sex with another woman

As the provision is worded, it appears not to contemplate and thus appears to exclude from the coverage of adultery the case of a married woman having sexual intercourse with another woman who knew that the former was married.

3) Element 3: Man knows woman to be married

Adultery requires that the man must have knowledge of the married status of the woman offender.

a) Man being married, not required

For adultery to happen, it is not material that the man is likewise married. For adultery to happen, it is not material that the man is likewise married. (Anonymous Complainant v. Dagala, supra., citing The United States v. Topiño,supra.)

b) Conspiracy

[T]he man may be convicted on the basis of conspiracy with the married woman. (Ibid.)

3. Things to note

The following are some additional things to note about this offense.

a. Common provisions

This offense shares common provisions with other offenses under Title XI of the Revised Penal Code – Crimes Against Chastity. See: Crimes Against Chastity

b. Requires complainant to prosecute

Under Article 344 of the Revised Penal Code, the crime of adultery, as well as four other crimes against chastity, cannot be prosecuted except upon a sworn written complaint filed by the offended spouse. It has long since been established, with unwavering consistency, that compliance with this rule is a jurisdictional, and not merely a formal, requirement. While in point of strict law the jurisdiction of the court over the offense is vested in it by the Judiciary Law, the requirement for a sworn written complaint is just as jurisdictional a mandate since it is that complaint which starts the prosecutory proceeding and without which the court cannot exercise its jurisdiction to try the case.(Pilapil v. Geiling, G.R. No. 80116, June 30, 1989, Per Regalado, J.)

c. Complainant should be the spouse

What if the complainant subsequently obtains a divorce decree while prosecuting the crime of adultery? In case of Pilapil v. Geiling, a German national divorced his Filipino spouse in Germany. Thereafter, he instituted a criminal case for adultery in the Philippines. In resolving the case, his having already divorced his Filipino spouse had the effect of him losing his status as the offended party who is required by law to be the spouse.

Pilapil v. Geiling, G.R. No. 80116, June 30, 1989, Per Regalado, J.:

• Now, the law specifically provides that in prosecutions for adultery and concubinage the person who can legally file the complaint should be the offended spouse, and nobody else. Unlike the offenses of seduction, abduction, rape and acts of lasciviousness, no provision is made for the prosecution of the crimes of adultery and concubinage by the parents, grandparents or guardian of the offended party. The so-called exclusive and successive rule in the prosecution of the first four offenses above mentioned do not apply to adultery and concubinage. It is significant that while the State, as parens patriae, was added and vested by the 1985 Rules of Criminal Procedure with the power to initiate the criminal action for a deceased or incapacitated victim in the aforesaid offenses of seduction, abduction, rape and acts of lasciviousness, in default of her parents, grandparents or guardian, such amendment did not include the crimes of adultery and concubinage. In other words, only the offended spouse, and no other, is authorized by law to initiate the action therefor.

• Corollary to such exclusive grant of power to the offended spouse to institute the action, it necessarily follows that such initiator must have the status, capacity or legal representation to do so at the time of the filing of the criminal action. This is a familiar and express rule in civil actions; in fact, lack of legal capacity to sue, as a ground for a motion to dismiss in civil cases, is determined as of the filing of the complaint or petition.

• The absence of an equivalent explicit rule in the prosecution of criminal cases does not mean that the same requirement and rationale would not apply. Understandably, it may not have been found necessary since criminal actions are generally and fundamentally commenced by the State, through the People of the Philippines, the offended party being merely the complaining witness therein. However, in the so-called “private crimes” or those which cannot be prosecuted de oficio, and the present prosecution for adultery is of such genre, the offended spouse assumes a more predominant role since the right to commence the action, or to refrain therefrom, is a matter exclusively within his power and option.

• This policy was adopted out of consideration for the aggrieved party who might prefer to suffer the outrage in silence rather than go through the scandal of a public trial. Hence, as cogently argued by petitioner, Article 344 of the Revised Penal Code thus presupposes that the marital relationship is still subsisting at the time of the institution of the criminal action for, adultery. This is a logical consequence since the raison d’etre of said provision of law would be absent where the supposed offended party had ceased to be the spouse of the alleged offender at the time of the filing of the criminal case.

• In these cases, therefore, it is indispensable that the status and capacity of the complainant to commence the action be definitely established and, as already demonstrated, such status or capacity must indubitably exist as of the time he initiates the action. It would be absurd if his capacity to bring the action would be determined by his status before or subsequent to the commencement thereof, where such capacity or status existed prior to but ceased before, or was acquired subsequent to but did not exist at the time of, the institution of the case. We would thereby have the anomalous spectacle of a party bringing suit at the very time when he is without the legal capacity to do so.

• To repeat, there does not appear to be any local precedential jurisprudence on the specific issue as to when precisely the status of a complainant as an offended spouse must exist where a criminal prosecution can be commenced only by one who in law can be categorized as possessed of such status. Stated differently and with reference to the present case, the inquiry ;would be whether it is necessary in the commencement of a criminal action for adultery that the marital bonds between the complainant and the accused be unsevered and existing at the time of the institution of the action by the former against the latter.

• American jurisprudence, on cases involving statutes in that jurisdiction which are in pari materia with ours, yields the rule that after a divorce has been decreed, the innocent spouse no longer has the right to institute proceedings against the offenders where the statute provides that the innocent spouse shall have the exclusive right to institute a prosecution for adultery. Where, however, proceedings have been properly commenced, a divorce subsequently granted can have no legal effect on the prosecution of the criminal proceedings to a conclusion.

• In the present case, the fact that private respondent obtained a valid divorce in his country, the Federal Republic of Germany, is admitted. Said divorce and its legal effects may be recognized in the Philippines insofar as private respondent is concerned in view of the nationality principle in our civil law on the matter of status of persons.

•Under the same considerations and rationale, private respondent, being no longer the husband of petitioner, had no legal standing to commence the adultery case under the imposture that he was the offended spouse at the time he filed suit.

•The allegation of private respondent that he could not have brought this case before the decree of divorce for lack of knowledge, even if true, is of no legal significance or consequence in this case. When said respondent initiated the divorce proceeding, he obviously knew that there would no longer be a family nor marriage vows to protect once a dissolution of the marriage is decreed. Neither would there be a danger of introducing spurious heirs into the family, which is said to be one of the reasons for the particular formulation of our law on adultery, since there would thenceforth be no spousal relationship to speak of. The severance of the marital bond had the effect of dissociating the former spouses from each other, hence the actuations of one would not affect or cast obloquy on the other.

d. Not a continuous crime

Adultery is not a continuous crime, and the culprits commit adultery on every sexual intercourse. (Fernandez v. Lantin, supra.)

e. Acquittal of a co-accused

Would the acquittal of a co-accused necessarily result in the acquittal of the other in a charge for adultery? This was the issue that was passed upon in the early case of The United States v. Topiño.

The United States v. Topiño, En Banc, G.R. No. 11895, December 20, 1916, Per Trent, J.:

• If a man lies with a married woman, knowing her to be married, he commits the crime of adultery. If a married woman lies with a man who is not her husband, she likewise commits the crime of adultery. In order to constitute adultery in either instance, there must be a joint physical act. Both bodies — that of the man and the woman — must concur in the act. Must there also be in every case a joint criminal intent? We think not. While the criminal intent may exist in the mind of one of the parties to the physical act, there may be no such intent in the mind of the other party. One may be guilty of the criminal intent, the other innocent, and yet the joint physical act necessary to constitute adultery may be complete. Thus, if one of the parties was, at the time of committing the physical act, insane, certainly such party has committed no crime; but it certainly cannot be contended that the other party who was sane, committed no crime. So, if the man had no knowledge that the woman was married, he would be innocent, in so far as the crime of adultery is concerned, and the woman guilty. The one would have to be acquitted and the other found guilty, although they were tried together. Or in other words, the act of sexual intercourse with a married or an unmarried man, other than her husband, is adultery in the woman without regard to the guilt of the man.

• It is quite true that the husband cannot institute a prosecution for the crime of adultery without including therein both of the guilty parties, if they are both living (article 434, supra), but the statute does not require that both must necessarily be tried together. The force of the article is spent when the husband institutes the prosecution against both or includes both in his complaint. It is not for the husband to determine the question of the guilt or innocence of the paramour of the crime of adultery. That question must be left to the court. (U. S. vs. Asuncion, 22 Phil. Rep., 358.) When the complaint is filed by the offended husband against both of the guilty parties, the proceedings then pass into the hands of the prosecuting officer, who may move for a dismissal of the complaint as to the paramour, if he is satisfied that he cannot establish guilty knowledge on the part of the man of the fact that the woman was married, and such dismissal would not of itself require the court to acquit the woman. Nor would the death of the woman during the pendency of the action defeat the trial and conviction of the man. (U. S. vs. De la Torre and Gregorio 25 Phil. Rep., 36.) Nor would the fact that the man had left the country and could not be apprehended defeat the trial and conviction of the woman. Again, if both were brought before the court to be tried jointly and one should claim a separate trial, which the court would have to grant (section 33, General Orders No. 58), the acquittal of the one would not necessarily bar a prosecution and conviction of the other. But it is said that in the instant case the woman was acquitted upon the ground that the proof as top her was not sufficient to establish beyond a reasonable doubt the fact that she had illicit intercourse with the man or that the joint physical act did, in fact, occur, and therefore the acquittal of the man must follow as a necessary consequence. If this be true, it would work a strange result if the male defendant, [G.] Guzman, could openly admit, as he did, habitual illicit intercourse with [T.] Topiño after he knew she was a married woman and then defy the law because there was no competent evidence against her. The mere fact that the trial judge was of the opinion that the evidence of record was insufficient to establish the guilt of Teodora beyond a reasonable doubt does not necessarily establish the fact, in so far as the other was concerned, that the two did not have illicit intercourse. The case at bar establishes this proposition beyond question.

f. Moral turpitude

Adultery is a crime involving moral turpitude. (See Teves v. COMELEC, En Banc, G.R. No. 180363, April 28, 2009)

Marriage is one area where law and morality closely intersect. The act of respondent Escritor of cohabiting with Quilapio, a married man, can only be called “immoral” in the sense that it defies and transgresses the institution of marriage. Society having a deep interest in the preservation of marriage, adultery is a matter of public, not merely private, concern, that cannot readily be ignored. (Estrada v. Escritor, En Banc, A.M. No. P-02-1651, August 4, 2003, Per Vitug, J., Separate Opinion)

g. Potential constitutionality issue

Anonymous Complainant v. Dagala, En Banc, A.M. No. MTJ-16-1886, Per Leonen, J., Concurring and Dissenting:

● More importantly, the offenses of concubinage or adultery cannot be committed because, in my view, it violates the equal protection clause of the Constitution. The provisions, promulgated in 1939, are now anathema to the requirement of “fundamental equality before the law of men and women” now prescribed in the Constitution, required by our treaty commitments, and exacted as standard by our statutes. Should evidence have been presented to amply prove concubinage or adultery in this case, the offenses would still have had to hurdle doubt as to its constitutionality and illegality. These would have been sufficient even to create reasonable doubt that should be appreciated in favor of the respondent.

3A. Procedural

a. Pardon, when made

Ligtas v. CA, G.R. No. L-47498, May 7, 1987, Per Gancayco, J.:

• In this jurisdiction pardon for adultery and concubinage must come before the institution of the criminal action and both offenders must be pardoned by the offended party if said pardon is to be effective. The pardon can be express or in applied. Thus, 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 adulterous act this is a case of express pardon. There is implied pardon when the offended party continued to live with his spouse even after the commission of the offense. However such consent or pardon cannot be implied when the offended party allows his wife to continue living in the conjugal home after her arrest only in order to take care of their children.

a. Concubinage vs Adultery

FactorsConcubinageAdultery
Offended PartyWifeHusband
OffenderHusbandWife
Overt ActsHe either: (a) keeps a mistress in the conjugal dwelling; (b) has sexual intercourse, under scandalous circumstances, with a woman who is not his wife; or (c) cohabits with a woman who is not his wife in any other place.She has sexual intercourse with a man not her husband the latter knew that she was married

Adultery… is committed by a married woman who has a relationship with a man who is not her husband. For adultery to happen, it is not material that the man is likewise married. Likewise, the man may be convicted on the basis of conspiracy with the married woman. (Anonymous Complaint v. Dagala, A.M. No. MTJ-16-1886, July 25, 2017, Per Leonen, J., Concurring and Dissenting Opinion)

Concubinage is committed by a married man who has carnal knowledge of a woman not his spouse under scandalous circumstances. It is not simply the presence of illicit carnal knowledge that the law requires. There must be separate proof that this was done “under scandalous circumstances,” different from the act of sexual intercourse. (Ibid.)

References

Title XI – Crimes Against Chastity, Act No. 3815, Revised Penal Code

/Updated: June 23, 2023

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