ANALYSIS: Article 247 application to parents, children; conspiracy

Under Article 247 of the Revised Penal Code, any legally married person who, having surprised his spouse in the act of committing sexual intercourse with another person, shall kill any of them or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury, shall suffer the penalty of destierro. If he shall inflict upon them physical injuries of any other kind, he shall be exempt from punishment. These rules shall be applicable, under the same circumstances, to parents with respect to their daughters under eighteen years of age, and their seducers, while the daughters are living with their parents. Any person who shall promote or facilitate the prostitution of his wife or daughter, or shall otherwise have consented to the infidelity of the other spouse shall not be entitled to the benefits of Article 247.The plain language of the above-cited legal provision covers only the following scenarios:
  1. The husband in relation to his wife;
  2. The wife in relation to her husband; and
  3. Parents in relation to their daughters.
It must be noted at this point that the Article 247 does not apply to children in relation to their parents. It is also clear that number 3 above does not apply to parents in relation to their sons (male children).

At first glance, the provision appears to be in violation of the equal protection clause under the 1987 Constitution. It may be argued that, if the first half of the provision applies vice versa to to husband and wife, the second half should also apply vice versa to parents and daughters. The argument may even go a step further and say that the limitation of number 3 to daughters only may also be considered unequal protection; hence, the law should also apply to male children.

As it is obvious, a statute that is not in harmony with the Constitution may be declared void. However, in view of the recent developments in the methods by which the Supreme Court treats laws which are perceived to be unconstitutional for violation of the equal protection, there is a change that the Court will decide not to nullify the law but simply expand its interpretation to cover parents in relation to their children and, also, to cover children (regardless of sex) in relation to their parents, vice versa.

However, prior to such pronouncement by the Supreme Court or prior to an amendment thereto by Congress, the law stays as it is. It is the law and its plain meaning shall control.

Having analyzed all these, the discussion must now come to an example. Recently, news broke that a husband and his two sons killed a man through physical assault after the latter was caught having sex with the husband's wife. The report says: "Napatay sa bugbog ang isang lalaki sa Mangatarem, Pangasinan matapos na mahuli raw sa akto na nakikipagtalik sa isang ginang. Ang nakapatay sa kaniya, ang mister at mga anak ng babae. Nagdilim na raw ang kaniyang paningin kaya binugbog ang biktima. Nakisali na rin daw ang dalawang anak na lalaki ng suspek."[1][2]

The question, of course, is whether Article 247's protective mantle applies to the three: the husband and the two sons.

Assuming that the facts of the news report are as they are alleged and assuming the legal marital relation between the husband and the wife, the husband can benefit from Article 247. In other words, he will not go to jail but will simply be ordered to stay away. Destierro simply "means banishment or only a prohibition from residing within the radius of 25 kilometers from the actual residence of the accused for a specified length of time."[3]

Unfortunately for the two sons, the law currently does not give them the same protection because:
  1. Article 247 does not apply to male children in relation to their parents; and
  2. Article 247 only applies to parents in relation to their daughters and not the other way around. 
In other words, if the parents surprised their son of minor age in the act of committing sexual intercourse with a seducer, Article 247 does not apply. If children (regardless of sex) surprised either their mother or their father in the act of committing sexual intercourse with a person other than each other, Article 247 does not apply.

Despite the discussions above based on the literal application of the present state of the law, an argument can be made regarding conspiracy. Conspiracy can be a means of committing a crime.

There is conspiracy when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Conspiracy does not need to be proven by direct evidence and may be inferred from the conduct — before, during, and after the commission of the crime — indicative of a joint purpose, concerted action, and concurrence of sentiments. In conspiracy, the act of one is the act of all. Conspiracy is present when one concurs with the criminal design of another, as shown by an overt act leading to the crime committed. It may be deduced from the mode and manner of the commission of the crime.[4][5]

If it can be argued successfully that the two sons were in conspiracy with their father (the husband) in committing the crime of killing the wife's lover and if it can be argued successfully that destierro is a penalty (to which some authorities disagree[6][7]), it can also be argued to a reasonable degree that Article 247 should extend its benefits to the two sons who acted with the same purpose and action as their father during the commission of the crime. Since the act of one is the act of all, each and every one of the conspirators is made criminally liable for the crime actually committed by any one of them.[8] Hence, conspiracy may be considered as the key to pull the acts of the two sons under the coverage of Article 247. At any rate, doubts are resolved in favor of the accused.[9]

[2] Lalaking nahuli raw na nakikipagtalik sa ginang na 'di niya asawa, patay sa bugbog. https://www.gmanetwork.com/news/balitambayan/promdi/800832/lalaking-nahuli-raw-na-nakikipagtalik-sa-ginang-na-di-niya-asawa-patay-sa-bugbog/story/.




[6] https://engrjhez.wordpress.com/tag/destierro/.

[7] https://frontpageph.com/death-or-physical-injuries-under-exceptional-circumstances/.

[8] https://www.projectjurisprudence.com/2021/06/principle-of-criminal-conspiracy.html.