The Bigger Picture: When Sex is a Crime: - Carolina S. Ruiz
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.
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.
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 :
- 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.