“Marital Infidelity Does Not Have a Place in Our Penal Laws”

 By:  Clara Rita A. Padilla, J.D., Executive Director, EnGendeRights, Inc.

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. We must repeal our laws on adultery and concubinage and certainly not pass any new law on marital infidelity.– Clara Rita A. Padilla, J.D., Executive Director, EnGendeRights, Inc.

Mainstreaming Gender Issue thru Bar Qs

Widely read columnist Ms.Rina Jimenez-David featured these now famous Bar Questions in her column. These questions are also heavily forwarded through emails. This discussion may a bit delayed as we are towards the last Sunday of the part upon printing. Just the same these very interesting questions are worth noting.

At large likewise quoted Atty. Sarah Lou Arriola, director for special projects of the Ateneo Human Rights Center. “These questions have changed the landscape of the bar exams. It is a great effort on the part of Justice Azcuna to mainstream gender issues in the law profession.”

Gender and the law are hardly given emphasis in law school. There are law schools in Metro Manila that offer it as an elective. However, law students who have the option to enroll in such class however tend to ignore it. The latest bar questions in political law is most welcome. It is a very creative way of mainstreaming gender issues particularly in the study of law. Three Cheers for Justice Azcuna and the examiner whose name will be revealed in time for these questions:

MANILA, Philippines — “The city mayor issues an executive order declaring that the city promotes responsible parenthood and upholds family planning. He prohibits all hospitals operated by the city from prescribing the use of artificial methods of contraception, including condoms, pills, intrauterine devices and surgical sterilization. As a result, poor women in this city lost their access to affordable family planning programs. Private clinics, however, continue to render family planning (counseling) and devices to paying clients.

“(a) Is the executive order in any way constitutionally infirm? Explain.

“(b) Is the Philippines in breach of any obligation under international
law? Explain.

“(c) May the Commission on Human Rights order the mayor to stop the
implementation of the executive order? Explain.”

Question No. 4: In 1993, historians confirmed that during World War II, “comfort women” were forced into serving the Japanese military. These women were either abducted or lured by false promises of jobs as cooks or waitresses, and eventually forced against their will to have sex with Japanese soldiers on a daily basis during the course of the war, and often suffered from severe beatings and venereal diseases. The Japanese government contends that the “comfort stations” were run as “onsite military brothels” (or prostitution houses) by private operators, and not by the Japanese military. There were many Filipina “comfort women.”

(a) Name at least one basic principle or norm of international
humanitarian law that was violated by the Japanese military in the
treatment of the “comfort women.”

(b) The surviving Filipina “comfort women” demand that the Japanese
government apologize and pay them compensation. However, under the 1951
San Francisco Peace Agreement — the legal instrument that ended the state
of war between Japan and Allied Forces — all the injured states,
including the Philippines, received war reparations and, in return, waived
all claims against Japan arising from the war. Is that a valid defense?

(c) The surviving Filipina “comfort women” sue the Japanese government for
damages before Philippine courts. Will that case prosper?

Question No. 5: The Destilleria Felipe Segundo is famous for its 15-year-old rum, which it has produced and marketed successfully for the past 70 years. Its latest commercial advertisemen uses the line: “Nakatikim ka na ba ng kinse anyos? (Have you tasted a 15-year old?)” Very soon, activist groups promoting women’s and children’s rights were up in arms against the advertisement.

(a) All advertising companies in the Philippines have formed an
association, the Philippine Advertising Council, and have agreed to abide
by all the ethical guidelines and decisions by the council. In response to
the protests, the council orders the pull-out of the “kinse anyos”
advertising campaign. Can Destilleria Felipe Segundo claim that its
constitutional rights are thus infringed?

(b) One of the militant groups, the Amazing Amazonas, call on all GOCCs to
boycott any newspaper, radio or TV station that carries “kinse anyos”
advertisements. They call on all government nominees in sequestered
corporations to block any advertising funds allocated for any newspaper,
radio or TV station. Can the GOCCs and sequestered corporations validly
comply?

Mainstreaming Gender Issues thru the Bar Exams

The widely read columnist Ms.Rina Jimenez-David featured these now famous Bar Questions in her column. These questions are also heavily forwarded through emails. This discussion may a bit delayed as we are towards the last Sunday of the part upon printing. Just the same these very interesting questions are worth noting.

At large likewise quoted Atty. Sarah Lou Arriola, director for special projects of the Ateneo Human Rights Center. “These questions have changed the landscape of the bar exams. It is a great effort on the part of Justice Azcuna to mainstream gender issues in the law profession.”

Gender and the law are hardly given emphasis in law school. There are law schools in Metro Manila that offer it as an elective. However, law students who have the option to enroll in such class however tend to ignore it. The latest bar questions in political law is most welcome. It is a very creative way of mainstreaming gender issues particularly in the study of law. Three Cheers for Justice Azcuna and the examiner whose name will be revealed in time for these questions:

MANILA, Philippines — “The city mayor issues an executive order declaring that the city promotes responsible parenthood and upholds family planning. He prohibits all hospitals operated by the city from prescribing the use of artificial methods of contraception, including condoms, pills,
intrauterine devices and surgical sterilization. As a result, poor women in this city lost their access to affordable family planning programs. Private clinics, however, continue to render family planning (counseling) and devices to paying clients.

“(a) Is the executive order in any way constitutionally infirm? Explain.

“(b) Is the Philippines in breach of any obligation under international
law? Explain.

“(c) May the Commission on Human Rights order the mayor to stop the
implementation of the executive order? Explain.”

Question No. 4: In 1993, historians confirmed that during World War II, “comfort women” were forced into serving the Japanese military. These women were either abducted or lured by false promises of jobs as cooks or waitresses, and eventually forced against their will to have sex with Japanese soldiers on a daily basis during the course of the war, and often suffered from severe beatings and venereal diseases. The Japanese government contends that the “comfort stations” were run as “onsite military brothels” (or prostitution houses) by private operators, and not by the Japanese military. There were many Filipina “comfort women.”

(a) Name at least one basic principle or norm of international
humanitarian law that was violated by the Japanese military in the
treatment of the “comfort women.”

(b) The surviving Filipina “comfort women” demand that the Japanese
government apologize and pay them compensation. However, under the 1951
San Francisco Peace Agreement — the legal instrument that ended the state
of war between Japan and Allied Forces — all the injured states,
including the Philippines, received war reparations and, in return, waived
all claims against Japan arising from the war. Is that a valid defense?

(c) The surviving Filipina “comfort women” sue the Japanese government for
damages before Philippine courts. Will that case prosper?

Question No. 5: The Destilleria Felipe Segundo is famous for its 15-year-old rum, which it has produced and marketed successfully for the
past 70 years. Its latest commercial advertisement uses the line: “Nakatikim ka na ba ng kinse anyos? (Have you tasted a 15-year old?)” Very
soon, activist groups promoting women’s and children’s rights were up in arms against the advertisement.

(a) All advertising companies in the Philippines have formed an
association, the Philippine Advertising Council, and have agreed to abide
by all the ethical guidelines and decisions by the council. In response to
the protests, the council orders the pull-out of the “kinse anyos”
advertising campaign. Can Destilleria Felipe Segundo claim that its
constitutional rights are thus infringed?

(b) One of the militant groups, the Amazing Amazonas, call on all GOCCs to
boycott any newspaper, radio or TV station that carries “kinse anyos”
advertisements. They call on all government nominees in sequestered
corporations to block any advertising funds allocated for any newspaper,
radio or TV station. Can the GOCCs and sequestered corporations validly
comply?

Psychological Incapacity – is not a Legal Fiction

Psychological Incapacity – is not a Legal Fiction (Part 1)

               My paramour – the one that I never leave home without – and the one whom I spend more time with – than my lover – is wounded and bleeding. So damaged, that I had to bring it to the ACER Service Center for repair.               Yes, it’s just a laptop, but since I spend so much time with it (being my mobile office) – it has ‘evolved’ to become a ‘can’t live without’ tool in my life. And what pray tell is their prognosis? Accordingly, the lcd monitor (yes it is that damaged…) cracked. A defect that is not covered by the warranty, following ACER jargon, as far as the LCD monitor is concerned – the warranty is VOID. The only solution left is to replace the LCD with a brand new one.                 The laptop is confined at the service center as a write or should I say type in our office. I hope to get it back with a newly and fully paid replacement LCD within twenty four hours. Thus now, I am at a lost on what to write on considering that my references are all saved in one folder.

I was supposed to write about Psychological Incapacity. I will still explain and define the basics. The details, doctrines and deeper legal implications however will be dealt with thoroughly next week.

                What is psychological incapacity? psychological incapacity” is a serious psychological disorder, but not necessarily insanity, that causes a spouse or both spouses to be truly incapable of complying with the essential marital obligations. This psychological condition must already exist at the time the marriage is celebrated.

               Article 36 of the Family Code provides that “A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization.“ GTALAWPHIL explains that this could mean that the husband or the wife is psychologically incapable of complying with the essential marital obligations, which will render the marriage void from the beginning. Again, it is important that this incapacity was already present during the celebration of marriage.              At this stage, I think I would have to unpack some legalese within the definition. Legal jargon number one: Essential Marital Obligations. These are the obligations of the husband and wife

(1) to live together, observe mutual love, respect and fidelity, and render mutual help and support;

(2) to procreate children based on the universal principle that procreation of children through sexual cooperation is the basic end of marriage;

(3) to jointly support the family (Art. 70), for the spouses are joint administrators in the partnership; and (4) Not to commit acts which will bring danger, dishonor or injury to each other or to the family (Art. 72), for the safety and security of the family at all times is a primordial duty of the spouses. (part two next week)

Battered Wife Syndrome as a Legal Defense

Flashback circa 2000: the Supreme Court accepted the “battered wife syndrome” (BWS) as a mitigating circumstance in the crime and returned Genosa’s case to the Ormoc regional trial court.  The SC referred it back to the lower court.  With instructions to consult clinical psychologists to better assess Genosa’s state of mind at the time of her husband’s killing.

            After four years, Genosa who was then on death row was spared from death penalty.  The parricide conviction stays, but her sentence was reduced from 14 to six years.  The 2004 decision came with an order of her release for time served.  The landmark decision paved the way for BWS to be invoked as a legal defense.                     
           

Incidentally, after a few months after its promulgation, The Anti-Violence Against Women and their Children Act of 2004 (RA 9262).  The law is an act defining violence against women and their children, providing for protective measures for victims, prescribing penalties therefore, and for other purposes.  It defines BWS as:

a scientifically defined pattern of psychological and behavioral symptoms  found in women living in battering relationships as a result of cumulative abuse.

            The legal recognition of BWS is a welcome development not only in Philippine jurisprudence per se but more so for those who have been advocating against violence against women in intimate relationships.  The law and BWS by themselves are not protect women and their children from many forms of abuse.  Much less answer the question of   why would anyone get caught up in this terrible situation in the first place? Why wouldn’t they get out at the very first sign of mistreatment?

            The law as a recourse can serve it purpose.  Congress though RA 9262 has even criminalized (against fathers) withholding of support in certain instances.  A victim-survivor can petition for protections orders when necessary.

            These sanctions however, can never approximate nor much more repay the injustice of abuse and the personal destruction it brings.  It’ll take time and therapy (in many form) before victims could realize that they did not cause not deserve the abuse.