Marie Yuvienco: Unfaithfully Yours

By: Marie Yuvienco
May 2, 2012 10:10 AM

InterAksyon.com
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Like virginity, sexual fidelity is one of those things that should not be subjects of legislation, or if they are, they should be so only in the most limited sense.

For example, article 46 of the Family Code says that no misrepresentation as to chastity shall constitute fraud sufficient to render a marriage voidable.

Indoctrinated thanks to a quarter-century of Catholic education, I was taught that a woman’s being virgo intacta was the greatest gift that a wife could give her husband.

I shan’t bore you with the details, but let’s just say that virginity is not the gift that keeps on giving. In saying that a man cannot have his marriage annulled on the ground that he was tricked by his wife’s solemn oath, hand-to-wallet, that he is her first though he isn’t, Congress is saying that sexual history -- or the absence thereof -- before exchanging I do’s is really nobody’s business, least of all the State’s, and chastity isn’t really a factor in the validity of a marriage.

Consider, too, that no law exists which punishes pre-marital sex. The private relations between two -- or more -- consenting adults should remain exactly that: private.

No law even vaguely requires that sexual relations between two individuals should end in marriage. In other words, there is a zone of privacy, a Maginot line, beyond which public authorities cannot intrude. And unless the government is a theocracy, it has no business legislating morality, which is distinct and separate from legality, and I refuse to condemn anyone as immoral or amoral simply for engaging in a biological function outside the confines of marriage.

Marriage, however, changes things.

Article 68 of the Family Code stipulates: “The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support.”

Fidelity is the key word here.

A few days ago, the House Committee on Women and Gender Equality endorsed for plenary action a bill punishing sexual infidelity by married persons. House Bill 5734, entitled “An Act Defining the Crime of Sexual Infidelity, proposes to penalize men and women should they engage in sexual intercourse with people other than their spouses.

Previous Congresses introduced similar legislation, all of which intended to redress the gender imbalance found in current laws that pertain to marital infidelity.

Specifically, article 333 of the Revised Penal Code defines adultery as a crime that can be committed only by a married woman when she has sexual intercourse with a man other than her husband. However, a married man can never be charged with adultery regardless of the number of his one-night stands; he can only be charged with concubinage under article 334 of the RPC should he (1) keep a mistress in the conjugal dwelling; or (2) bang a woman not his wife under scandalous circumstances; or (3) co-habit with such a woman in some other place.

Lawyers agree that concubinage is much harder to prove than adultery because the latter requires only a single instance, whereas concubinage implies, especially in circumstances 1 and 3, a sort of continuing arrangement.

Not only that: adultery is punished more heavily than concubinage. Adultery is punishable by imprisonment of two years, four months and 1 day to six years; in contrast, concubinage is punishable by imprisonment of six months and one day to four years and two months.

The difference in treatment is often justified by the argument that a wife’s secret infidelity may introduce illegitimate children into a union and that no man should be obliged to support a child not his own. Like most flawed arguments, this one sounds perfectly reasonable except that when a man fathers an illegitimate child, good luck expecting him to support said spawn, in which case we can ask, where’s the logic in that?

But the law isn’t always logical -- or fair -- particularly old laws like the Revised Penal Code, which took effect 80 years ago. Though there have been attempts to correct the inequity, notably the Anti-Violence Against Women and their Children Act of 2004, which declares “marital infidelity” as a form of psychological abuse, the gender bias remains intact.

I’ve long suspected that the laws on adultery and concubinage are constitutionally infirm on the ground that they offend the equal protection clause, but so far, no constitutional challenge has been lodged against them.

And now here comes HB 5734, which seeks to declare that what is lethal for the goose should be equally lethal for the gander.

The wisdom behind laws is usually beyond anybody’s power to question, including the Supreme Court’s, but I think it’s a far simpler matter to seek the pronouncement of unconstitutionality of articles 333 and 334 rather than seek to pass new legislation, a circuitous and time-consuming process.

But apart from that, it’s useless to penalize extramarital infidelity even for the laudable purpose of supposedly equalizing how the law treats men and women.

Wouldn’t the purpose be better served by de-criminalizing marital infidelity altogether?

When something is de-criminalized, it doesn’t mean that the government is sanctioning the act or encouraging it, or in the case of adultery, that it is fomenting the destruction of the Filipino family.

People will cheat regardless of what the law says.

The fact is this: laws do not break up families; people do.