I. Concept: The crime committed by a married woman who shall have sexual intercourse with a man not her husband, and by the man who has carnal knowledge of her, knowing her to be married”
A. The gist is actual sexual intercourse and not just mere romantic dating, or petting or kissing
B. There is no frustrated stage: it is either that the accused were able to engage in sex or not.
C. It is not a continuing crime because each separate sex act on a different occasion is a different and a separate crime.
D. This may be committed when a married woman marries a second time without the first having been judicially annulled or voided. Her liability is in addition to bigamy.
II. The Judicial validity of the woman’s marriage is not material. It is enough that there was a marriage which has not yet been annulled or declared null and void.
A. The possibility of introducing spurious heirs
B. Violation of the marriage vows and the sanctity of the marriage based on the exclusivity of the sexual partner.
III. Defenses in Adultery
A. Pardon by the offended spouse if (1) given to both the guilty parties and (2) prior to the institution of the criminal action
B. Pardon may be express or implied, as by sleeping with the woman despite knowledge of the adultery (Pardon of the Act)
C. Consent given prior to the adultery, such as in mutual agreement to separate and to live with another partner
D. Recrimination or mutual infidelity is merely mitigating
E. The fact that the woman is legally separated from the husband is no defense.
IV. Principles in the Prosecution of Adultery
A. Direct evidence is not necessary as adultery may be implied from the circumstances of time, place and occasion
B. There may be a separate trial for the man and the woman
C. The man may be acquitted if he did not know the woman is married
D. If the man is married, he may also be liable for concubinage and the married woman man may also be charged as a concubine
V. Special Extenuating Circumstance of Unjustified Abandonment
A. The penalty is at least one degree lower
B. The essence is that the woman was forced to commit adultery by reason of extreme necessity which refers to economic necessity and the need for survival, such as providing for the shelter and sustenance of her abandoned family.