Last week, a husband was reported to have surprised his wife and her lover inside a motel. The first thing that entered my mind is not about infidelity, but death. Killing someone in flagrante delicto (caught in the act), or death inflicted under exceptional circumstances, does not carry any imprisonment.

The act of killing another person is a criminal offense. It’s the rule. It’s not uncommon, however, for rules to have exceptions. For instance, there is no criminal offense when killing is done in self defense or under exceptional circumstances.

Death under exception circumstances covers both death and physical injuries, when a married person – either the husband or the wife – surprises the other spouse in flagrante delicto in the act of committing sexual intercourse with another person. Article 247 of the Revised Penal Code reads:

ART. 247. 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. 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 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.

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.

The penalty of infidelity is death. The requirements before exemption is granted:

1. A legally married person (or a parent) surprises his spouse (or his daughter, under 18 years of age and living with him), in the act of committing sexual intercourse with another person.

2. He/she kills any or both of them or inflicts upon any or both of them any serious physical injury in the act or immediately thereafter.

3. That he has not promoted or facilitated the prostitution of his wife (or daughter) or that he or she has not consented to the infidelity of the other spouse.

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 know 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.