Article 247 of the Revised Penal Code (RPC; Act 3815): Death or physical injuries inflicted under exceptional circumstances. – 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.
A. Introduction
1. Concept: It is the killing or wounding by one who surprised the spouse in the act of sexual intercourse with another, (called euphemistically Criminal Conversation or any illicit sex for that matter) or the minor daughter of the accused spouse and living with the accused spouse, in the act of sexual intercourse with her seducer.
2. Article 247 does not define a crime but grants a privilege or benefit amounting to an exemption from punishment. Thus the commission of the crime under the situation contemplated would constitute an Absolutory Cause.
3. The killing or wounding is regarded as a justifiable outburst of passion.
4. The accused will be charged for parricide, Murder or Homicide or Physical Injuries, and it is up to the accused to prove the killing or physical injuries were under the circumstances conceived by Article 247. This is a matter of defense.
5.The sexual intercourse must be voluntary on the part of the offending spouse or daughter, otherwise the intercourse would constitute rape and the killing would become the justifying circumstance of defense of a relative.
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 seducer, 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 this article.
B. Requirements for the Application of Article
1. The spouses must be legally married. If not the situation may only give rise to the mitigating circumstance of Passion or Obfuscation
2. In case the accused is the husband, he should not have promoted or facilitated the prostitution of his wife or daughter, or that the accused spouses had not consented to the infidelity of the other spouse.
3. Meaning of the phrase” having surprised” (or element of surprise):
a). They were the offending spouses with the partner or the daughter and her seducer who were caught by surprise. The phrase does not refer to the accused spouse
b). This includes the situation where the offended spouse had prior suspicion or knowledge of the infidelity but simply resorted to a strategy to catch the guilty parties spouse in flagrante
c). The surprise must take place in the very act of sexual intercourse, during the criminal conversation, not during the preparatory acts or after the sexual act as stated in a case, Article 247 of the Revised Penal Code does not define and provide for a specific crime, but grants a privilege or benefit to the accused for the killing of another or the infliction of serious physical injuries under the circumstances therein mentioned. Far from defining a felony, this provision merely provides or grants a privilege or benefit — amounting practically to an exemption from an adequate punishment — to a legally married person or parent who shall surprise his spouse or daughter in the act of committing sexual intercourse with another, and shall kill any or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury. It is, in effect, an exempting circumstance.
There’s an interesting aspect of the penalty when a spouse kills his/her spouse under exceptional circumstances. The penalty is destierro, which we commonly known as banishment. This is not a penalty but a measure of protection for the accused (the spouse who killed the other spouse) — to prevent a situation when relatives or friends of the dead spouse/lover might exact revenge.