Adultery

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 preceding paragraph shall be imposed.

Elements of adultery

1.  That the woman is married;

2.  That she has sexual intercourse with a man not her husband;

3.  That as regards the man with whom she has sexual intercourse, he must know her to be married

The woman must be married

•  The legitimacy of the marriage relation between the offended husband and the defendant wife is one of the circumstances which must necessarily attend the crime of adultery. Once it is shown that the man and the woman lived as husband and wife, none of the parties denied and contradicted the allegation in the complaint, the presumption of their being married must be admitted as a fact (US vs. Villafuerte, 4 Phil 476)

The offended party must be legally married to the offender at the time of the criminal case

•  The person who initiates the adultery case must be an offended spouse and by this is meant that he is still married to the accused spouse, at the time of the filing of the complaint. 

“Even if the marriage be subsequently declared void”

•  It is not necessary that there be a valid marriage between the offended husband and the guilty wife. There is adultery, even if the marriage of the guilty woman with the offended husband is subsequently declared void.

Reason for punishing adultery even if the marriage is subsequently declared void:

•  Until the marriage is declared to be null and void by competent authority in a final judgment, the offense to the vows taken, and the attack on the family exists.

Carnal knowledge may be proved by circumstantial evidence

•  The finding in the possession of a married woman of several love letters signed by her paramour, their having together in different places, and the fact that they were surprised in a well known assignation house, which the accused woman admitted to have visited 6 times in company with her paramour are data and indications sufficient to convict them both of adultery.

•  Photograph showing the intimate relations of the two accused; testimony of a witness to the effect that the two accused were in scant apparel and sleeping together.

•  Direct proof of carnal knowledge is not necessary to sustain a conviction for adultery. Circumstantial and corroborative evidence such as will lead the guarded discretion of a reasonable and just man to the conclusion that the criminal act of adultery has been committed will suffice to bring about conviction for that crime.

Adultery cannot be in the frustrated stage. 

It can only be attempted or consummated because the essence of adultery is sexual intercourse. 

Each sexual intercourse constitutes a crime of adultery

•  Each instance is one count of adultery. There will be as many counts of adultery as there are sexual intercourse. 

•  The crime of adultery is an instantaneous crime which is consummated and completed at the moment of the carnal union. Even if the husband should pardon his adulterous wife, such pardon would not exempt the wife and her paramour from criminal liability after the pardon had been granted because the pardon refers to previous and not to subsequent adulterous acts. Adultery, therefore, is not a continuing offense.

•  The essence of adultery is the violation of the marital vow.

•  The gist of the crime of adultery is the danger of introducing spurious heirs into the family, where the rights of the real heirs may be impaired and a man may be charged with the maintenance of a family not his own.

Abandonment without justification is not exempting, but only a mitigating circumstance

•  Abandonment could not serve her as an excuse or free her from the criminal responsibility she incurred by the breach of fidelity she owed her husband, for she had means within the law to compel him to fulfill the duties imposed upon him by marriage.

Sheer necessity, mitigating liability of the married woman

•  She was left helpless and in such a great need that she found herself in the predicament of committing adultery for the sake of her three children. Moreover, she believed that her husband had died in the sea.

•  Both defendants are entitled to this mitigating circumstance 

The man must know the woman to be married

•  The man, to be guilty of adultery, must have knowledge of the married status of the woman, which is an essentialelement

•  A married man who is not liable for adultery, because he did not know that the woman was married, may be held liable for concubinage

The acquittal of one of the defendant does not operate as a cause for the acquittal of the other because:

1.  There may not be a joint criminal intent, although there is joint physical act.

2.  Thus, one of the parties may be insane and the other sane, in which case, only the same could be held liable criminally.

  

3.  Thus also, the man may not know that the woman is married, in which case, the man is innocent.

4.  Thus, also, the death of the woman during the pendency of the action cannot defeat the trial and conviction of the man.

5.  Even if the man had left the country and could not be apprehended, the woman can be tried and convicted.

Effect of the death of the paramour

• It will not bar prosecution against the unfaithful wife because the requirement that both offenders should be included in the complaint is absolute only when the two offenders are alive.

Effect of the death of offended party

•  The proceedings must continue. Pardon after criminal proceedings have been instituted cannot extinguish criminal liability. But if he dies before a complaint could be filed, the case cannot go on because no one can sign and file the complaint.

Effect of pardon

•  The pardon must come before the institution of the criminal prosecution and both offenders must be pardoned by the offended party. Thus, a motion to dismiss filed on behalf of the defendant wife alone based on an affidavit executed by the offended husband in which he pardoned her for her infidelity cannot prosper. 

•  The act of having intercourse with the offending spouse subsequent to adulterous conduct is an implied pardon. But is does not follow that, in order to operate as such, an express pardon must also be accompanied by intercourse between spouses thereafter.

•  The offended party cannot institute criminal prosecution if he shall have consented or pardoned the offenders (Art. 334, RPC). While there is a conceptual difference between consent and pardon in the sense that consent is granted prior to the adulterous act while pardon is given after the illicit affair, for either consent or pardon to benefit the accused, it must be given prior to the filing of a criminal complaint. 

Effect of consent

•  The husband, knowing that his wife, after serving sentence for adultery, resumed living with her co-defendant, did nothing to interfere with their relations or to assert his rights as husband. Shortly thereafter, he left for Hawaii where he remained for 7 years completely abandoning his wife and child. Held: The second charge of adultery should be dismissed because of consent.

• Agreement to separate. While the agreement is void in law, it is nevertheless competent evidence to explain the husbands inaction after he knew of his wife’s living with her co-accused. He may be considered as having consented to the infidelity of his wife, which bars him from instituting criminal complaint.

Will the doctrine of pari delicto be applicable in Adultery?

In the Guinucud case, the Court found that the complaining husband, by entering into an agreement with his wife that each of them were to live separately and could marry other persons and by filing complaint only about a year after discovering his wife's infidelity, had "consented to, and acquiesced in, the adulterous relations existing between the accused, and he is, therefore, not authorized by law to institute the criminal proceedings." In fine, the Guinucud case refers not to the notion of pari delicto but to consent as a bar to the institution of the criminal proceedings. In the present case, no such acquiescence can be implied: the accused did not enter into any agreement with Dr. Neri allowing each other to marry or cohabit with other persons; and Dr. Neri promptly filed his complaint after discovering the illicit affair. Moreover, the concept of pari delicto is not found in the Revised Penal Code, but only in Article 1411 of the Civil Code. The Court notes that Article 1411 of the Civil Code relates only to contracts with illegal consideration (Arroyo, Jr. vs. Court of Appeals, G.R. No. 96602, November 19, 1991).

Who can initiate the action for adultery?

Only the offended spouse can initiate the action. Both offenders (wife and paramour) must be named in the complaint unless one is already dead which fact must be alleged in the information, otherwise, the information is defective and subject to motion to quash. 

In adultery, although the paramour is not aware that the other party is married woman, for the purpose of filing the complaint, he must be included in the complaint/information.

Under the law, there is no accomplice in adultery

Sources: 

Leonor D. Boado, Notes and Cases on the Revised Penal Code, 2004 ed.

Luis B. Reyes, The Revised Penal Code, Book II, 2001 ed.