Historically, adultery was harshly punished as a breach of the husband's rights. Rigidly severe penalties - as divorce, public shaming, stoning, devouring by dogs, mutilation, and death - were imposed upon the adulterous wife by her aggrieved spouse or law. It was as though the wife was regarded as a property of the husband. On the other hand, the aggrieved husband could get even with the adulterous wife and the latter was prohibited from seeking justice against the unfaithful husband.
In the Code of Napoleon, “a man could ask to be divorced from his wife if she committed adultery, but the philandery of the husband was not a sufficient motive for divorce unless he had kept his concubine in the family home.”
In the early Roman Law , there was no such thing as the crime of adultery on the part of a husband towards his wife.
The Jews believe that only a married woman engaging in sexual intercourse with another man shall be regarded as adultery. In the Mosaic Law, adultery was taken to mean merely the carnal intercourse of a wife with a man who was not her legal husband. The sexual intercourse of a married man with a single woman was not constitutive of adultery.
The passport of the husband to indulge in sexual intercourse with other woman who was not his wife may be explained in the words of Plutarch, viz :
"We keep mistresses for our pleasures, concubines for constant attendance, and wives to bear us legitimate children and to be our faithful housekeepers. Yet, because of the wrong done to the husband only, the Athenian lawgiver Solon allowed any man to kill an adulterer whom he had taken in the act.”
The above discrimination which was the practices of ancient peoples was cast in stone. It was set forth in almost all ancient codes of law.
Why then our modern legislators seemed to have not departed from the belief of the remote past and perpetuated the disadvantaged position of the wife when they legislated the laws on adultery and concubinage in 1932?
Under the Revised Penal Code, one single sexual intercourse by a wife with a man not her husband already amounts to a crime of adultery (Art. 333). This is different in the case of the husband who commits concubinage only when he keeps a mistress in conjugal dwelling with a woman not his wife, or cohabits with a concubine in any other place (Art. 334). Clearly, the conditions under which concubinage may be committed are difficult to prove, which will permit the husband to continuously indulge in sexual infidelity and still unscathed from the application of the law.
Realizing the discriminatory nature of our penal laws on adultery and concubinage, three senators of the 14th Congress are now seeking to “punish marital fidelity or sexual intercourse by a husband or wife with another person not his or her spouse, amending the crimes of adultery and concubinage under the Revised Penal Code, to eliminate the double standard between husband and wife and promote the fundamental equality before the law of women and men”.
The three bills filed by Senators Santiago, Gordon and Villar are consistent with Art. XI, Sec. 14 of the 1987 Constitution which mandates the State to ensure the fundamental equality before the law of women and men. In the words of Sen. Santiago, “this requires the State to apply the law regardless of gender”.
Kudos to the collective wisdom of the three lawmakers!