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I.

Introduction

Discrimination is a widespread issue throughout the world. Likewise, inequality between
men and women is also a contagious problem that all country is facing. Thus, this paper will
provide a solution to end this unfair treatment particularly for the constitutionality of Article 334
of the Revised Penal Code.

Article 334 of the Revised Penal Code provides for the meaning and penalty of Concubinage. To
wit:
Art. 334. Concubinage. - 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. (The Revised Penal Code Criminal
Law, Reyes, 2008)

Under Article 334, concubinage is committed in three ways, namely: by keeping a
mistress in the conjugal dwelling; or by having sexual intercourse, under scandalous
circumstances, with a woman who is not his wife; or by cohabiting with her in any other place.
Proving at least one of these circumstances, suffice the crime of concubinage.

In addition, the offender must be a married man. The woman becomes liable only when
she knew him to be married prior to the commission of the crime. Thus, a married man is liable
for concubinage only when he does any of the three acts specified in Article 334. If his sexual
relations with a woman not his wife is not any one of them, he is not criminally liable (People vs.
Santos, et al., C.A., 45 O.G. 2116)

As the crime providing punishment for extramarital affairs committed by the husband,
Article 334 lends not obedience and prevention but rather tolerance and loopholes in the guise
of the three circumstances in which Concubinage can be committed.
First of the circumstances is keeping the mistress in the conjugal dwelling. Conjugal
dwelling is meant the home of the husband and wife even if the wife happens to be temporarily
absent on any account. (People vs. Cordova, C.A., G.R. No. 19100-R, June 23, 1959, 55 O.G.
1042). A man with common sense would not ordinarily keep or much less let his mistress in the
conjugal dwelling in order to keep his affairs hidden from his wife and family.
The second requisite is when the husband has sexual intercourse under scandalous
circumstances. By nature of his extramarital affair a man would make efforts to keep his affair
discreet. Indeed, the phrase scandalous circumstances is discriminatory and almost difficult or
impossible to prove. The phrase is also a vague and ambiguous phrase which under the statutory
construction should be construed in favor of the accused. It also implies that a man having
extramarital affairs is not wrong nor is it a crime unless it either reaches a status of being under a
scandalous circumstance whereas a woman does not deserve any circumstance for her
extramarital affair to be adultery. Scandalous circumstance also rests upon the people or
neighbors who will judge whether their sensibilities where their sensibilities are offended with
the married man and his mistress sexual relations to render it scandalous. Concubinage is under
Title 11 of Book 2 of Revised Penal Code which classifies it under Crimes of Chastity therefore
is it not enough that the sexual intercourse is repugnant in the eyes of the mans wife, a
defilement of the mans sacred vow of marriage and a desecration of the his and his familys
reputation in addition to the besmirching of the character of the lady he made his mistress. This
is the only Article under the Crimes Against Chastity where an element requires other people
aside from the offended person to prove that indeed the crime is committed. If thats the case
then there really is indeed a need to amend the Revised Penal Code and transfer the crime
Concubinage to Crimes Against Person for it is apparently not a crime against the chastity of
marriage but a crime against the sensibilities of other people who may be named as third party.
The third act by which a husband can commit Concubinage is by cohabiting with a woman
in another place. Cohabitation means to dwell together, in a manner as a husband and wife
(People v. Pitoc) for some period of time which is different from that of occasional, transient
interviews for unlawful intercourse. (Reyes, p.912) This opens an avenue for a man to have
sexual relations with a woman not his wife from time to time without being charged with
Concubinage provided he does not stay with her for long period of time. Instead of absolutely
preventing the commission of extramarital affairs by the husband, the article ensured that a
married man can freely have sexual relations intermittently with a mistress woman without a
consequence.
The needless inclusion of these three acts makes Concubinage an ineffective and
essentially impotent article.
There is a law very similar to the above article, and that law is Article 333, Adultery.
This is specified in Article 333 of the Revised Penal Code, to wit:
Art. 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 preceeding paragraph shall be imposed. (The Revised
Penal Code Criminal Law, Reyes, 2008)

A married man might not be guilty of adultery, on the ground that he did not know that
the woman was married, but if he appeared to be guilty of any of the acts defined in Article 334,
he would be liable for concubinage. (Del Prado vs. Fuerte, 28 Phil. 23)

However, the married woman is guilty of adultery. If she knew that the man was married,
she would be liable for concubinage also.

They also differ in the scope of the law. Firstly, the penalties for both crimes are
different. In Adultery, it is stated that if married woman commits adultery, she will face a
maximum of six years imprisonment. Unlike the husband who commits concubinage will only
face a maximum of 4 years and one day. Also, the penalty of the concubine when she is caught
committing concubinage is only destierro while the penalty of the adulterer is the same with the
penalty that is given to the accused wife.
Secondly, when a husband sleeps with another woman who is not his spouse, there is a
possibility that he will not be called committing concubinage, whereas when a wife sleeps with
another man she is to be said committing adultery and can be imprisoned at that moment.
Thirdly, adultery is not a continuous offense, meaning, the husband can file separate
cases for each and every time his wife and another man are caught having sexual intercourse. But
in concubinage, only one crime is counted if the husband and his concubine committed
concubinage.
Lastly, one sexual intercourse by a wife with a man not her husband is already adultery,
while concubinage is committed by a husband, only when he keeps a mistress in the conjugal
dwelling, has sexual intercourse under scandalous circumstances with a woman not his wife, or
cohabits with a concubine in any other place. Thus, if the husbands sexual relations with a
woman not his wife does not fall in any one of these circumstances, he is not criminally liable,
unlike the wife where all it takes for her to be criminally liable is one sexual intercourse with a
man not her husband. Therefore, the law makes the crime of concubinage more difficult to
establish. That is why a lot of wives are force to file a case of psychological violence under RA
9262 instead.
II. Body

Section 1 Article 3 of the 1987 Constitution guarantees equal protection of the laws.
According to the noted Constitutionalist, Fr. Joaquin G. Bernas, S.J., in his book entitled The
1987 Constitution, A Comprehensive Reviewer, the equality it guarantees is equality of all
persons before the law. Under it, each individual is dealt with as an equal person in the law,
which does not treat the person differently because of who he is or what he possesses. The
goddess of justice is portrayed with a blindfold, not because she must be hindered in seeing
where the right lies, but she may not discriminate against suitors before her, dispensing instead
an even handed justice to all.

Furthermore, it is the policy of the State to ensure the fundamental equality before the
law of women and men. While significant changes in legislation have been made since the
declaration of this State policy under the Constitution, the crimes of adultery and concubinage in
the Revised Penal Code, which manifestly show unequal treatment of husband and wife, still
remain.

The unequal treatment of husband and wife in the crimes of adultery and concubinage is
plain and obvious. The law on Concubinage clearly violates the equal protection clause since the
law does not give equal credence to the husband and the wife. Section 1, Article III of the 1987
Constitution provides that no person shall be deprived of life, liberty or property without due
process of law, nor shall any person be denied of equal protection of the laws. Thus, husband
and wife must be governed by the equal protection of laws.

In Himagan Vs. People, the requisites of equal protection clause are provided, namely:
the classification is based on real and substantial differences; is germane to the purpose of the
law; applies to all members of the same class; and applies to current as well as future conditions.
Hence, the Concubinage does not follow the requisites of the equal protection clause on the
grounds that it does not apply to all members of the same class.

Furthermore, the said law must be viewed within the context of the constitutional
mandate to ensure gender equality, which is quoted as follows:
Section 14. The State recognizes the role of women in nation-building, and shall
ensure the fundamental equality before the law of women and men.
Thus, husband and wife must be treated alike.

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