Under Articles 333 and 334 of the Revised Penal Code, sexual infidelity for married couple is a crime. It is called adultery for the wife and concubinage for the husband. The prison term is six years for adultery and over four years for concubinage. Both are private crimes, such that only the injured spouse can file a case.
If sexual infidelity is a crime, how about marital infidelity? To protect women and their children from abuses and violence of their partners, R.A. No. 9262 was passed in 2004 with acronym Anti-VAWC or Anti-Violence Against Women and Children. It categorized violence into physical, psychological, sexual and financial. The common form of violence is psychological defined in Section 5 [i] – causing mental or emotional anguish, public ridicule, humiliation including but not limited to repeated verbal and emotional abuse, denial of financial support or custody of minor children.
As special law, intent to perpetrate the prohibited act must be proven. In the en banc case of Acharon v. People, it was held that to establish a violation of Section 5 [i], intent to withhold financial support must be for the purpose of inflicting mental or emotional anguish and mere failure to provide financial support is not considered psychological violence, even if the woman suffered mental or emotional anguish. A reading of Section 5 [i] reveals that it does not include “marital infidelity” as an example of “causing mental or emotional anguish. It is not even clear if marital infidelity, in itself, is a crime under Republic Act No. 9262.
Recently, this issue was ruled by our Honorable Supreme Court in the landmark en banc case of XXX v. People, G.R. No. 252739, uploaded in its website on 05 September 2024. In this case, XXX and AAA got married in 1999. While they resided in Tarlac City, XXX stayed in Manila on weekdays working at Bureau of Customs, and goes home to Tarlac City on weekends. In July 2016, a co-worker of AAA showed her photos sent by EEE. AAA recognized their family vehicle. EEE told AAA that XXX was keeping a mistress and has a child. With her mother and family friend, AAA went to Makati and found XXX, their family car and XXX’s child with YYY. AAA was deeply hurt.
In December 2016, a criminal case for violation of Section 5 [i] of R.A. 9262 was filed against XXX for keeping a mistress causing AAA mental and emotional anguish. At the trial, AAA presented her evidences of her emotional anguish due to her husband’s infidelity. XXX admitted his marriage with AAA and having sired a child with YYY. He denied keeping a mistress as the child was a result of a one-night stand. In 2017, the Regional Trial Court found XXX guilty, as it gave weight to AAA’s behavior and manner of testifying where “anguish can readily be seen”. The Court of Appeals sustained the RTC pointing out that the criminal element that accused caused the victim mental and emotional anguish was proven. On appeal, XXX argued that the prosecution failed to prove beyond reasonable doubt that AAA’s mental and emotional anguish was caused by his unfaithfulness and he did not commit any of the acts mentioned in Sec. 5 [i] of RA 9262 and did not intend to cause AAA mental and emotional distress.
Our Supreme Court ruled that the main thrust of the Anti-VAWC law is the protection of women and their children and is more concerned with defending them as victims rather than penalizing offenders. The law looks at the effects of certain act against women than offender’s motive. In marital infidelity, the requirement of specific criminal intent to cause mental and emotional suffering is already satisfied once the offender commits an act of infidelity. To determine if the marital infidelity caused psychological violence under Anti-VAWC law, criminal intent is conclusively presumed in the act of marital infidelity. This is because marital infidelity is inherently wrong under current social, cultural and religious norms. Section 5 [i] is violated once the victim suffered mental or emotional anguish due to the acts of the offender. Marital infidelity presupposes that there is a bond or commitment to which one owes fidelity.
However, not all extramarital relationships are punishable by Section 5(i) of R.A. 9262. In non-traditional family set-ups and modern relationship arrangements, extramarital affairs are not equivalent to infidelity. Those consenting spouses or who are in estranged relation, extramarital relationship may not inflict mental or emotional harm and is not punishable as a crime. To stem the perpetuation of the cycle of abuse and to prevent the normalization of extramarital promiscuity in society, our Honorable Supreme Court declared marital infidelity to be a form of psychological violence, which is punishable by eight years imprisonment.
