Marital Infidelity Does Not Have a Place in Our Penal Laws

By Clara Rita A. Padilla, Executive Director, EnGendeRights
Nov. 18, 2007

If I were a lawyer who is out to enrich myself, I would probably say “go ahead and support the ‘marital infidelity’ bills (HB 999 filed by Representative Emmanual Joel Villanueva and HB 1820 filed by Representatives Liza Maza and Luzviminda Ilagan)”. These bills seek to repeal the adultery and concubinage provisions of the Revised Penal Code and then impose a new crime called “marital infidelity” which equalizes the penalties for marital infidelity.

The reason why lawyers who are out to enrich themselves would do this is because the effect of such a law is indeed the deluge of cases that will be filed by estranged husbands who are out there to perpetually harass their wives who have left them for a more suitable partner. Mind you, it would be the batterer husbands and those who have sought to control their wives who would line up to file these cases and not the ones who respect their wives’ freedoms.

But I am not out to enrich myself as a lawyer. I am a lawyer who has spent thirteen years of my professional career devoting my time and efforts in advocating for women’s rights—for battered women, women who have been raped, women who are seeking protection orders against their abusive husbands and, yes, women who have long been separated from their husbands but are facing “adultery” cases filed by their husbands.

The Convention on the Elimination of Discrimination against Women (CEDAW) provides for equality and non-discrimination of women. But equality in law does not simply mean equalizing the penalties for certain crimes for both women and men and not especially so for “marital infidelity” cases. The essence of CEDAW provides for substantive equality such that the effect of laws would not discriminate against women. Equalizing the penalty for marital infidelity cases would discriminate women since the reality is that most marital infidelity cases are filed by men rather than women—more men still have more money than women and men use these marital infidelity cases against their wives as a form of abuse and torture on their wives.

In the case of Sheila (not her real name), she was battered by her husband while they were living together. Eventually she left her husband and now she is living with her male partner. Since she left her abusive husband, she has never asked for support for herself and her minor daughter. What does the husband do after six years of separation? He files a case for adultery against her. Now Sheila is tormented—a clear case of abuse under the Anti-Violence against Women and their Children Act (RA 9262).

In many countries around the world, the criminal provisions imposed on adultery have already been repealed. The intended purpose of the criminal provision on adultery under the Revised Penal Code (circa 1932 and directly translated from the old Spanish Penal Code) is to protect the rights of real heirs. Many adultery cases, however, are filed by estranged husbands who have long been separated from their wives and who have no intention to reunite with their wives nor do they have any intention to support the illegitimate child of their wives.

In the case above, you would see that this case along with many others are not filed to protect the rights of heirs but for other reasons such as continued harassment, abuse, and property issues. There are many others like Sheila who have suffered abuse at the hands of their husbands and, rightly so, have chosen to live another life with their new partners. Should women like Sheila serve prison sentence? Most certainly not, they deserve to live peaceful lives free from abuse, coercion, and discrimination.

Adultery, concubinage, and marital infidelity cases do not have any place in our law. On the contrary, these cases continue to perpetuate abuse in the family and impose torment on the children. The transitory years of the young children’s lives are put to waste since their parents are constantly feuding.

If the husband and wife cannot be together, then they should nullify the marriage. This is also why we are advocating for divorce so as not to subject the grounds to divorce on the differing interpretations of judges, psychiatrists and psychologists.

Marital infidelity cases also infringe upon one’s right to have sexual relations with whom they want to and when they want to. This is the commitment of the Philippines under the International Conference on Population and Development Programme of Action and the Beijing Platform for Action and the obligation of the Philippines under CEDAW and the International Covenant on Economic, Social and Cultural Rights.

We must repeal our laws on adultery and concubinage and certainly not pass any new law on marital infidelity.

Women’s Rights Delegates Advocate for a Comprehensive Optional Protocol to the ICESCR at the UN meeting in Geneva

Geneva, July 20, 2007—-The members of the International Women’s Rights Action Watch Asia Pacific (IWRAW-AP) delegation Brenda Campbell, Clara Rita A. Padilla, and Niti Saxena are presently attending the 4th session of the United Nations Open-ended Working Group on an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR or the Covenant) being held in Geneva this July 16-27, 2007.

The delegates from the States, non-governmental organizations, and experts are discussing the provisions of a draft Optional Protocol that provides the Committee on Economic, Social and Cultural Rights (the Committee), tasked to monitor the implementation of the Covenant, to receive and consider communications/individual complaints and to conduct inquiries on alleged violations of state obligations to respect, protect and fulfill economic, social and cultural rights. While most UN Human rights treaties allows for such a complaint mechanism, victims of economic, social and cultural (ESC) rights are still deprived of any remedy at the international level.

Clara Rita Padilla, a feminist lawyer and the Executive Director of EnGendeRights, says, “The much-needed Optional Protocol will strengthen access to justice of women on ESC rights including the right to the enjoyment of the highest attainable standard of physical and mental health (Art. 12.1, ICESCR), education (Art. 13), work (Art. 6), food and freedom from hunger (Art. 11.1 and 11.2), and housing (Art. 11.1), among others. The proposed mechanism of individual complaints will allow individuals and groups of individuals to file complaints against their states for failure to uphold their rights under the Covenant. The views of the Committee on these complaints would have a significant impact in furthering women’s rights.”

An example of a complaint that can be filed with the Committee is on the right to education of women especially poor, rural, and indigenous women. Statistics show that the higher the educational attainment of women, the less number of children they want. This means less unwanted pregnancies, and lesser women undergoing unsafe, backstreet abortions in the case of the Philippines where abortion is still unsafe and illegal.

Another complaint that can be filed is on women’s right to access emergency contraceptive pills to prevent unwanted pregnancies. Until now, Filipino women including rape victims are unable to access these contraceptive pills due to policies of the Bureau of Food and Drugs Administration and the Department of Health that are contrary to the findings of the World Health Organization and the International Federation of Gynecology and Obstetrics and the policies of over 140 nations worldwide that have endorsed emergency contraceptives as a proven safe and effective method of modern contraception including predominantly Catholic countries such as Argentina, Belgium, Bolivia, Brazil, Chile, Colombia, Cuba, Dominican Republic, Ecuador, El Salvador, France, Hungary, Mexico, Peru, Poland, Portugal, Slovenia, Spain and Venezuela.

With proper access to health care information and services including sexuality education for adolescents, maternal mortality ratios can be dramatically brought down as seen in the experiences of other countries where maternal mortality has been brought down to less than ten women dying for every 100,000 live births (i.e., Canada, Italy, Spain, UNFPA State of the World Population Report (SWPR) 2006).

In the Philippines, it is regrettable that the maternal mortality ratio has remained constant for the past three years (200 maternal deaths for every 100,000 live births, UNFPA SWPR 2005, 2006, 2007). This shows that the Philippines has failed miserably to comply with its obligation under the Covenant to “undertake steps...to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including the adoption of legislative measures.”

Atty. Padilla says, “It’s just unfortunate that there is no delegate from the Philippine Mission in Geneva who is present here to express their support for an Optional Protocol to the Covenant.” She adds, “We need pressure from NGOs, stakeholders and policy makers back in the Philippines and around the world to support this important process in order to obtain a comprehensive and effective Optional Protocol.”