Barreto soap and the law

““Unlike the equally married men in this soap opera, all it takes to convict a woman for adultery is one act of sexual intercourse with a man other than her husband.

Yet another consolation from the hottest soap opera in town is the chance to educate the public on the law. When siblings publicly inflict pain on one another that is of course the crime of physical injury. When they publish malicious statements against each other, that is libel. When they shout invectives and insults against each other, that is the crime of slander.

But when the beautiful partners of the rich and famous also exchange partners as often as they change their designer bags, certain intricacies of the law are highlighted. For instance, when married people publicly conduct romantic affairs with other individuals, married or not, the criminal offense is either concubinage or adultery, depending on the gender of the offending party.

Adultery is committed by a married woman who shall have sexual intercourse with a man not her husband. Here, it appears that only the younger of the warring siblings could be held liable since only she is married. Her older sister, even if she has figured in high profile romances with the very rich, has not been married — as far as I know. I was thus dumbstruck when the younger of the siblings publicly stated that the father of one of her children was a very married former government official. That was a declaration against interest, which could even amount to a public confession of guilt.

Note that unlike the equally married men in this soap opera, all it takes to convict a woman for adultery is one act of sexual intercourse with a man other than her husband. A married man, on the other hand, can only be held for the crime of concubinage when he either “holds a mistress in the conjugal dwelling” “or any other place,” or shall have sexual intercourse “under scandalous circumstance.”

Feminists have of course been up in arms on this seeming divergent standards on sexual felonies with women at a disadvantage since it only takes one sexual intercourse to put her behind bars, while men can have as much sex as they want with women other than with their wives provided it is not scandalous or they do not cohabit with their mistresses in the conjugal dwelling or any other place. Is this constitutional?

The framers of our Revised Penal Code based the definition of the crimes of adultery and concubinage in the archaic Spanish Penal Code. As is the norm in many European societies, keeping a mistress, provided the affair is discreet and the man does not permanently cohabit with the mistress, is often a way of life. It comes as no surprise hence that our penal laws were written to favor the man. Then and until now, lawmakers are after all predominantly men, most often than not, with mistresses.

Officially, the rationale for the distinction is because it only takes one intercourse to make a woman pregnant. I am of the opinion that since both crimes fall under the classification of “crimes against chastity,” there should not have been this distinction in the crime of marital infidelity based solely on gender.

Under the equal protection clause, persons similarly situated should be treated alike. Here, both crimes are punished as constituting crimes against chastity. While the framers probably thought that the double standard would discourage the proliferation of children born out of wedlock, shouldn’t the men, who can also impregnate their mistresses after only one intercourse, also be held liable criminally for a single sexual act of infidelity? The distinction, given the purpose of the law, is therefore not germane to the purpose of the law and is not based on genuine differences. It thus fails the reasonable basis test as defined by our Supreme Court and should hence be declared by our court to be unconstitutional.

Under United States jurisprudence, any distinction on the basis of gender is presumed unconstitutional. The burden rests on the state to show a societal interest to justify the distinction. I see no reason why we should also not adopt this presumption.

Who knows, in addition to the entertainment provided by the feuding siblings, we may yet have a justiciable controversy brought to court to challenge the constitutionality of our concubinage law. Hopefully, this is the sole good that our society could have in this otherwise brainless soap opera.