Adultery is committed when a married woman commits a sexual act with a man other than her husband.

In one case, the husband, together with elements of the police, barged into a hotel room. There, they saw his wife and her alleged lover. They, however, were not caught in the act.  Rather, the wife was actually attending to her three-year-old son in bed while her alleged lover was seated on a chair, although shirtless. Take good note: the wife and her adult male companion were not caught in the act of intimacy; nowhere near that. The husband, after having the couple arrested, charged them with adultery.

The prosecutor, after a preliminary investigation, found probable cause. To refresh your memory, probable cause is merely a determination that the crime may have been committed by the persons charged and not a finding of guilt or innocence. With probable cause found, the case was forwarded to the municipal circuit trial court. Before issuing a warrant of arrest, the court, doubtful of the existence of probable cause, asked the prosecution to produce more evidence to substantiate adultery. The prosecution did not do so. Accordingly, the trial court dismissed the case for lack of probable cause. 

If you think about it, adultery entails evidence, direct or even just circumstantial, establishing the commission of the sexual act. When the couple was raided in the hotel, their acts did not in any way suggest such illicit acts. On the contrary, the wife was performing a most innocuous act of attending to her child. The alleged lover, although in the same room, was not in bed with her but on a chair.  So, it is quite doubtful that the couple indeed seemed guilty of adultery.  Thus, the dismissal.

 The husband, resolute in prosecuting the pair, appealed the dismissal. The regional trial court agreed with him and reversed the lower court, therefore finding probable cause. On appeal by the pair this time, the Court of Appeals affirmed the regional trial court’s finding of probable cause.

This prompted the couple to ask the Highest Tribunal for a final determination whether there indeed was probable cause, considering that they were discovered in a hotel room not performing any form of sexual intimacy.  

Thus, the Supreme Court, “Petitioners maintain that in dismissing the adultery case, Judge Tejada made a personal determination of the existence of probable cause based on the evidence presented by the prosecution. As such, no grave abuse of discretion may be attributed to her.  The Court is not persuaded.  The authority to determine probable cause on the part of the public prosecutor and the judge has already been delineated.

“The determination by the public prosecutor is executive, the purpose of which is for filing a criminal information in court, and determining if there is enough evidence to support it. On the other hand, the determination by a judge is a judicial function, which is being exercised to determine if there is a necessity to place the accused under custody.  In doing so, the judge will determine the existence of probable cause independent of the findings of the prosecutor and will have no capacity to review the determination made by the latter.

“Despite the distinction between the executive and judicial determination of probable cause, a judge may still dismiss the case if the evidence does not establish probable cause. This authority is written in Section 5, paragraphs (a) and (b), Rule 112 of the Rules xxx. 

“Evidently, a judge has the following options upon the filing of an information: (1) dismiss the case if the evidence on record clearly fails to establish probable cause; (2) issue a warrant of arrest or a commitment order if findings show probable cause; or (3) order the prosecutor to present additional evidence if there is doubt on the existence of probable cause.” 

(To be continued)