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Men may soon lose their legal edge over women when the Marital Infidelity Bill ripens into a law. About time, the women say. But is this all that needs to be changed in the context of protecting gender rights? How about hearing out the lament of the men-folk on the Anti-Violence Against Women and their Children Act?
Under the Revised Penal Code, particularly Article 333 which defines the crime of adultery, any married woman who shall have sexual intercourse with a man not her husband, even if it is only one isolated instance, shall be criminally prosecuted and penalized. The man who has sexual relations with her, knowing her to be married, shall likewise be criminally liable.
On its face, there is nothing wrong with this provision of law. After all, sexual infidelity in any form is like a colony of termites that eats up and eventually erodes the stability of a home and a family. Indeed it must be punished to protect the sanctity of marriage.
But compare this law with Article 334 of the Revised Penal Code which defines what concubinage is and how it is committed. Any fair-minded person, even men, I dare say, would cry foul. Why so? While married women are punished for even a single act of sexual infidelity, married men, on the other hand can only be held criminally liable if they keep their mistresses in the conjugal dwelling. Or, if the married man shall have sexual intercourse with a woman who is not his wife, under scandalous circumstances. Or, if a married man shall cohabit or live-in with a woman not his wife, in any other place. The man is not punished for infidelity even if he sires as many children as he wants outside marriage as long as he is not caught living–in with another woman, or bringing her to live in the conjugal home, or carrying on sexual relations under scandalous circumstances.
In other words, an act or several acts of sexual infidelity by a married man would go unpunished if these acts do not fall under any of the three circumstances defining what concubinage is. He can very well carry on strings of infidelity and have as many extramarital relationships as he wishes without being made criminally liable for concubinage. Neither can he be sued for adultery, as long as his lover is not married to another man. And so, except for the very careless and the daring, few men actually get convicted for concubinage on account of the stringent requirements or elements that must be first established.
That is not all. The penalty for adultery is so much higher than the penalty for concubinage. A woman convicted for adultery can face imprisonment ranging from two years, four months and one day to six years, depending on the existence of aggravating or mitigating circumstances that will either increase or decrease the penalty. On the other hand, a man convicted for concubinage, despite the stringent elements that must be proved, will only face imprisonment ranging from six months and one day to two years and eleven months. The curious thing about concubinage is that the lover or the mistress of the married man who is convicted will not even be meted out a penalty of imprisonment. On the contrary, she is merely ordered not to go near the residence of the legal wife within a certain radius to protect her from the wrath of the legal spouse. This penalty, so called, is termed as destierro.
There is clearly a double standard in the laws penalizing marital infidelity between women and men under our present laws. And it is no wonder, perhaps, considering that our first set of penal laws, under the old Penal Code took effect in 1887 and our present penal system covered by the Revised Penal Code took effect in 1932 or 75 years ago. In those days the legislature was exclusively dominated by men as the women stayed home, nursed the babies and cooked the meals.
If the Marital Infidelity Bill gets passed into a law anytime soon, there will no longer be any distinction between adultery and concubinage. Rather, the same set of elements will be proven whether the accused is a male or a female and the penalty will be the same—no longer disparate as the penalties for men versus women used to be. The bill also provides a penalty lesser than that for adultery, or is six months and one day to two years, equivalent only to the penalty for concubinage.
Men are losing the legal edge—illicit in the first place—over women. But then, while the legislature is at it, perhaps a review of the Anti-Violence Against Women and their Children Act (Republic Act 9262) is also in the offing. I have been receiving emails from men who say that this law is unfair and discriminatory as it does not give equal protection to men who are battered by their wives or live–in partners.
This law giving special protection to women and their children punish acts committed against women and their children which amount to physical and sexual violence; to psychological violence such as subjecting a woman to humiliation and public ridicule and to economic abuse. There are many men who are in that same situation. They are, in fact, worse off than battered women because when they come forward to complain, they are chided and laughed at for allowing themselves to be battered. They are scared that if they complain they might lose the respect of their fellow males and women, too, rather than earn sympathy for their fate. In this day and age when many women are the breadwinners and are the ones who control the strings to the purse, house-husbands sometimes suffer a fate that used to be exclusive to women. They are psychologically abused, they are forced to be dependent on their wives who are the ones earning and are sometimes subjected to physical violence. Yet, they cannot seek protection under this law even if they suffer the same violence and abuse as contemplated in the law for the sheer reason that they are neither women nor children.
I think that the men have reason to raise arms against this piece of legislation. It is a basic principle in law which is even enshrined in our Constitution that government or the State must treat an individual in the same manner as others in similar conditions and circumstances. This is called the equal protection clause. This doctrine does not intend to provide equality among individuals or classes but guarantees equal application of the laws to every one similarly situated.
If the law on rape was amended to apply to both males and females such that even males may now be considered victims of rape just as long as there was absence of consent in the sexual act or there was forced anal or oral penetration, why cannot the Anti-Violence Against Women and their Children Act be amended, too, to give equal protection to battered and abused males? Could it be that men are too shy to lobby for their own rights against battering?
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