SOME RANDOM THOUGHTS ON SEXUALLY ILLEGAL ACTS— INFIDELITY, BIGAMY, CONCUBINAGE, AND ADULTERY
The Philippines is one of a few states in the international community that still considers sexual infidelity, in a general sense, a crime. Firstly, there is no crime under our Penal Laws which is denominated as infidelity. There is in its stead the crimes of concubinage, adultery, and loosely the crime of bigamy. There are other sexual crimes like acts of lasciviousness, seduction, etc. , but these have to be fodder for another blog entry. For now, we will discuss the major sexual sins, if you will, of adultery, concubinage, and bigamy.
So, what is sexual infidelity?
What is bigamy?
What is adultery?
What is concubinage?
(Please pardon the non literary arrangement because we are trying to be search engine optimized)
Bigamy should be out of place here because what is punishable as such is having two marriages at the same time.It is not per se a sexually illegal act because it is not really a crime against the other spouse as being more a crime against the State for messing up the marriage registration system by marrying for the second or subsequent time. In this day of searchable databases and centralized registration (NSO), it behooves upon the authorities concerned as to how and why bigamy is such a prevalent practice or occurrence. So we will leave it at that for a later blog.
Sexual infidelity, adultery, and concibinage:
Sexual infidelity in a general sense, as we said, is not a crime. The term made its debut into Philippine law under the Civil Code provision on Legal Separation, unabashedly lifted from Catholic Canon Law. Curiously, sexual infidelity as a term was carried over as one of the manifestations (albeit may not be by itself according to some authors) of psychological incapacity as a ground for declaration of nullity of a marriage. The Civil Code of the Philippines prior to the Family Code did not even consider sexual infidelity as a ground for annulment, although ironically our Victorian forebears could conceivably put their respective spouses in jail if he or she committed the specific crimes of concubinage or adultery. But anti woman’s lib as the original drafters of the 1920’s Revised Penal Code were, the crime of adultery on the part of the woman was easier to prove than the crime of concubinage on the part of the man. For the woman, all one has to prove is that she had sexual intercourse with a man other than her husband (circumstancial evidence being possible in such a case especially so in an age when video cameras have not yet been invented). For the man, a wife has to prove that the act is scandalous to constitute concubinage. So if the infidelity was discreet (perhaps meaning not demonstrative or of an exhibitionist nature) then it would not be concubinage. This may, after all , be the precursors of the oft depicted scene in Tagalog movies of the legal wife “scandalously” confronting the “kulasisi” so as to come within the purview of the law.
But the Family Code has changed all that, for better or for worse, by introducing the concept of sexual infidelity as a ground for legal separation, and suggestively, as a possible manifestation likewise of psychological incapacity. So any form or fashion of sexual infidelity , be it scandalous or not, straight or gay, can now be considered as a ground for the declaration of nullity or annulment (in a loose legal sense) of a marriage. Conceivably, there may even be no sexual intercourse to constitute infidelity??Aha, that would be a novel idea. Some sort of a Lewinskiesque twist to the law.
A recent development is the concept of sexual infidelity under the Anti Violence Law (RA 9262) which mentions sexual infidelity and other sexually violent acts as punishable offenses. How this will impact on the concept of psychological incapacity and the criminal law would be interesting to see.