Amending the Anti-rape Law

Policy Brief No. 11

Strengthening the Provisions of R.A. 8353: AMENDING THE ANTIRAPE LAW
This policy brief provides the rationale and recommendations for amending
the anti-rape law; redefining it by providing specific and clearer instances
and putting the element of lack of consent at its center.
WHAT IS THE ISSUE?
Rape is an inherent violent crime that results in physical, social, emotional
and psychological harm. It is not only when force is used that the crime
becomes violent; the fact that the sexual act is committed against the will of
the victim makes the crime violent.
The 2011 International Statistics on Crime and Justice conducted by the
European Institute for Crime Prevention and Control, ranks the Philippines as
7th among the countries with high prevalence of rape cases[1]. The Philippine
National Police (PNP) records show that reported rape cases ranked third and
accounted for about 9.6% of total reported violence against women (VAW)
cases from 2004 to 2012[2] . The WCPU statistics for 2012 revealed that the
most recorded victims of sexual abuse are children between the ages of 1315 years old with 1,147 cases. The National Objectives for Health Survey of
the DOH (2000) shows that 295,448 teenagers between the ages of 13-15
years experienced sexual abuse, 61, 518 of these were forced sex/rape and
only 0.1% are reported to the authorities[3].
These reports and figures show that rape remains a prevalent social problem.
Most cases were underreported due to significant barriers such as cultural
and social stigmatization and pressure, fear of retaliation, lack of confidence
in the justice system, ignorance of the proper reporting procedures and
inability to withstand the rigors of severe examination and a public trial.
WHY IS THE ISSUE IMPORTANT?
Undoubtedly, the Anti-Rape Law of 1997 is progressive in terms of veering
away from the chastity framework, and classifying rape as a crime against
persons rather than a crime committed against private individuals thereby
challenging the private-public divide. However, the law still vacillates
between the two realms. While making rape a public crime, it also recognizes
that the subsequent forgiveness by the wifeshall extinguish the criminal
action or the penalty.[4] Further, the provision which states that the
subsequent valid marriage between the offender and the offended party
shall extinguish the criminal action or the penalty imposed could expose the
woman to the danger of domestic violence. Once the woman victim marries
the offender, she no longer has legal remedy to file an action for rape.
These forgiveness clauses in the law do not take into consideration the very
issue of gender-based violence in an intimate relationship which can involve
a whole range of abuses such as physical, sexual and psychological that can
happen over a prolonged period of time. Maintaining the existence of the
forgiveness clause in our law could give rise to violence against women
under the shroud of marriage, keeping women in violent and abusive
relationships rather than freeing them. With such provision, women who are
raped by their husbands are likely to be raped many times and would suffer
repeated violence for they are usually trapped in a vicious cycle of sexual
abuse in marriage.
Despite the enactment of RA 8353 in 1997 which amended the crime of rape
in the Revised Penal Code, it is often difficult for a woman to press charges

because of the evidential rules concerning the crime or many cases of rape
are being dismissed in courts because victims have to prove beyond
reasonable doubt that there was no consent[5] . Behind relevant provisions of
the anti-rape law that represents considerable progress, it is still implicit in
this law the disregard for the traumatic effects to the victims of the sexual
assault of this nature. Myths and misconceptions, wrongful presumptions and
discriminatory understandings about consent in sexual violence and its
victims are still being employed and remain as basis for jurisprudential
doctrines in rape.
The issue surrounding consent in the crime of rape must also go to the
question on whether the victim has the capability to consent. Our present
law implicitly sets the rightful age of consent to sex at 12 years old while
official data show that majority of victims of rape are under the ages of 13-15
years old. Earlier initiation of sexual intercourse is strongly associated with
sexually transmitted infections[6] , increased risk for cervical cancer[7] ,
pregnancy, depression and suicide, and sexual abuse. Increasing such age of
consent to at least 16 years of age will generally provide greater protection
against abuses to girls and minors.
WHAT ARE THE EXISTING LAWS OR POLICY ISSUANCES RELATED TO
THE ISSUE?
Section 12 of RA 9710 or the Magna Carta of Women (MCW) provides for the
amendment or repeal of laws that are discriminatory to women which,
among others, include RA 8353 on removal of subsequent forgiveness and
valid marriage clause.
Article II Section 11 of the 1987 Philippine Constitution provides that the
State values the dignity of every human person and guarantees full respect
for human rights.
HAS THE SUPREME COURT ISSUED A RULING RELATED TO THE ISSUE?
OR WHAT ARE THE RECENT RULINGS OF THE SUPREME COURT
RELATED TO THE ISSUE?
Case law has it that the failure of the victim to shout or offer tenacious
resistance does not make voluntary the victims submission to the criminal
acts of the accused (People v. Pepito, G.R. Nos. 147650-52, October 16,
2003). Resistance is not an element of rape and the absence thereof is not
tantamount to consent (People v. Dizon, 367 SCRA 417 (2001)). The law does
not impose upon a rape victim the burden of proving resistance (People v.
Talavera, G.R. Nos. 150983-84, November 21, 2003). In fact, physical
resistance need not be established in rape when intimidation is exercised
upon the victim and she submits herself against her will to the rapists lust
because of fear for life or personal safety (People v. Umbana, G.R. Nos.
146862-64, April 30, 2003). Indeed, it has been said that, in rape cases, it is
not necessary that the victim should have resisted unto death or sustained
injuries in the hands of the rapist. It suffices that intercourse takes place
against her will or that she yields because of a genuine apprehension of
great harm (People v. Dagami, G.R. No. 136397, November 11, 2003) [8].
Physical resistance need not be established when intimidation is brought to
bear on the victim and the latter submits herself out of fear. As has been
held, the failure to shout or offer tenuous resistance does not make voluntary
the victims submission to the criminal acts of the accused (People v. San
Antonio, Jr., G.R. No. 176633, September 5, 2007, 532 SCRA 411, 428).
Intimidation is addressed to the mind of the victim and is, therefore,
subjective (People v. Castro, G.R. No. 172691, August 10, 2007, 529 SCRA
800, 809-810; citing People v. Ilao, G.R. Nos. 152683-84, December 11, 2003,
418 SCRA 391)[9].

WHAT ARE THE EXPERIENCES OF OTHER COUNTRIES IN ADDRESSING

THE ISSUE?
The provision in rape law which ends criminal prosecution in the event of
marriage between the offender and the victim was abolished in Mexico in
1991, Colombia in 1997, Peru in 1999, and Ethiopia in 2005. On 9 May 2005,
the new Ethiopian Penal Code which removed the marital exemption for
abduction and rape came into effect. Both abduction and rape are criminal
offenses under Ethiopian law, but Articles 558 and 599 of the 1957 Ethiopian
Penal Code had provided that in the event of subsequent marriage to his
victim, the perpetrator was exempt from criminal responsibility for these
crimes. Equality Now launched its campaign in March 2002, calling on the
Ethiopian Government to comply with the sex equality provisions of its own
Constitution and international law by abolishing this legal exemption[10].
Under the Indian Penal Code, rape is a non-compoundable offence, an
offence against society and is not a matter to be left for the parties to
compromise and settle. In a landmark judgment, the Supreme Court ruled
that a rapists offer to marry the rape survivor could never be a ground for
letting off the guilty lightly for two major reasons: one, it would encourage
the convicts to pressurize rape survivors to reach a compromise and two,
rape is a crime against society.
The offence of rape in Australia is defined as carnal knowledge of a woman
without her consent: carnal knowledge is the physical fact of penetration; it
is the consent to that which is in question; such a consent demands a
perception as to what is about to take place; as to the identity of the man
and the character of what he is doing (Papadimitropoulos v The Queen).
Thus, Chief Justice King said, The law on the topic of consent is not in doubt.
Consent must be a free and voluntary consent. It is not necessary for the
victim to struggle or scream. Mere submission in consequence of force or
threats is not consent. The relevant time for consent is the time when sexual
intercourse occurs. Consent, previously given, may be withdrawn, thereby
rendering the act non-consensual. A previous refusal may be reversed
thereby rendering the act consensual. That may occur as a consequence of
persuasion, but, if it does, the consequent consent must, of course, be free
and voluntary and not mere submission to improper persuasion by means of
force or threats.[11]
The Sudanese Criminal Act defines rape as sexual intercourse without
consent. In Great Britain, the accused can be convicted of rape even if the
victim has consented. The High Court has ruled on a case where a woman
consented to only limited sexual contact and the ruling is based on the
principle that if you do something to someones intimate bits which you know
s/he has not consented to or is unable to consent to, you are committing
sexual assault or rape.
The Oxford City Council is running a campaign called Check Consent.
Theyre reaching out through posters, beer mats and social media to
challenge unhealthy attitudes towards sex and prevent violence and abuse in
relationships.[12]
National laws of other countries and statutes of international tribunals
increasingly stipulate principles on the use of presumptions with regards to
the existence or absence of consent. For example, Article 75 of the UK
Sexual Offences Act of 2003 states that proof of violence or threats prior to
sexual intercourse rule out consent. Conversely, consent cannot be inferred
on the grounds of the silence, or lack of resistance by a victim against sexual
violence as stated in Rule 70 (c) of the International Criminal Court (ICC)
Rules on Procedure and Evidence.

Most of the countries in Southeast Asia like Brunei, East Timor, Indonesia,
Malaysia, Singapore, Taiwan, peg the age of consent at 16, meaning, sexual
intercourse with a minor under 16 will be treated as a sex crime and is
punishable in their common law even if consensual. Only the Philippines has
the lowest which sets it at 12 while Japan and Vietnam at 13.
WHAT ARE THE CONSIDERATIONS IN ADDRESSING THIS ISSUE IN THE
COUNTRY
Promoting womens rights and gender equality Rape is a crime involving
power relations between the offender and the victim, and rooted in male
dominance and female subordination. It is no doubt, the result of disparities
in the status and situations of women and men; between the more powerful
and the oppressed. The Anti-Rape Law should be viewed from a perspective
that promotes the right of the more vulnerable groups and ensuring their
freedom from violence.
Responding to International Commitments
Article 2 of the Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW) called on the States Parties to condemn
discrimination against women in all its forms, agree to pursue by all
appropriate means and without delay a policy of eliminating discrimination
against women. The 2006 CEDAW Committee Concluding Comments on the
5th and 6th Philippine Country Report raised concerns over the Anti-Rape
Law of 1997 and recommended the repeal of the provision pertaining to the
extinguishment of the criminal action.
The CEDAW Committee also recommends that concrete measures be taken
to ensure that all legal procedures in cases involving crimes of rape and
other sexual offenses are not affected by prejudices or stereotypical gender
notions. It specifically recommends reviewing the definition of rape in the
legislation so as to place the lack of consent at its centre.
Alignment with National Priorities
Amending the Anti-Rape Law is consistent with item 13 on Gender Equality of
the governments 16-Point Agenda which states, from a lack of concern for
gender disparities and shortfall, to the promotion of equal gender
opportunity in all spheres of public policies and programs. More importantly,
it responds to the mandate of Congress under the Magna Carta of Women to
amend or repeal laws that are discriminatory to women.
POLICY RECOMMENDATION
The PCW proposes the following salient features of the new Anti-Rape Law:
1. specify that rape is a sexual assault that violates a persons right to
personal security and bodily integrity with the essential element of lack
of consent;
2. the crime is committed by:
a. a man who has carnal knowledge of a woman without her consent,
whether or not the woman suffers injuries;
b. a man touches or inserts his penis into the females inner or outer
vaginal labia, without her consent, whether or not the woman suffers
injuries;
c. a man who touches or inserts his penis into another persons mouth
or anal orifice, without the persons consent, whether or not the person
suffers injuries;
d. a person who touches or inserts any instrument or object, including
a finger, into the genital or anal orifice of another person
3. the crime is committed under any of the following circumstances:
a. through force, threat or intimidation;
b. through the use of weapon, or other external force causing physical
injuries, maiming, disfiguring, or endangering the life of the victim;

c. through fraudulent machination or abuse of authority;

d. in coercive or other similar circumstances rendering the complainant
incapable of giving consent, including forcing another individual to
sexually assault the victim;
e. when the offended party is under sixteen (16) years of age[13] or is
demented or is deprived of reason or is unconscious for any reason,
even though none of the circumstances mentioned above be present,
however, minors, aged fourteen to sixteen, may be proven to have
consented to sexual activity with a partner who is not more than five
years older, provided that, for children who are legally able to consent
to sexual activities, the accused is required to have taken reasonable
steps to ascertain the victims consent.
4. define consent as the voluntary agreement to engage the sexual
activity in question, which must be proven such that:
a. the victim understands what is being proposed;
b. the victim is aware of the societal standards of what is proposed;
c. agreements or disagreements will be respected equally;
d. both parties enter into the relationship or proposal voluntarily; and
e. both parties are mentally competent[14]
PCW also calls on the Supreme Court to consider issuing a Rule on Trial of
Rape Cases [15] which may include the following:
1. application of the rape shield rule as provided for in Section 6 of RA
8505
2. guiding principles on the appreciation of evidence in rape cases
3. child and gender-sensitive decorum for lawyers, prosecutors, judges
and other court personnel during trial of rape cases

[1 ]

http://www.nationmaster.com/graph/cri_rap-crime-rapes

[2 ]

http://www.pcw.gov.ph/statistics/201304/statistics-violence-against-filipinowomen
[3]

Child Exploitation and Statutory Rape: A Situationer of Dr. Bernadette J.

Madrid, Executive Director of Child Protection Unit Network, Inc., presented
during the October 18, 2013 forum on The RIGHTful Age: When it is
Statutory Rape
[4]

Santos, Aida F. et. al. Toward a Gender-Responsive Legislation. National

Commission on the Role of Filipino Women, 1999
[5]

As mentioned in the presentation of Ms. Amelia G. Suarez, RSW,MSW of

the Womens Crisis Center (WCC) on September 27, 2013 during the
Roundtable Dicussion: Addressing Gender-based Violence Through a GenderResponsive Judicial System: Call to Action
[6]

Young Age at First Sexual Intercourse and Sexually Transmitted Infections

in Adolescents and Young Adult, Kaestle et.al, American Journal of
Epidemiology, 2005
[7]

Risk factors for cervical cancer in Colombia and Spain by Bosch et.al., Int. J.
Cancer, November 11, 1992
[8]

[9]

People v. Capareda, 27 May 2004, G.R. No. 128363.

People v. Achas, 4 August 2009, G.R. No. 185712

[10]

www.equalitynow.org/node/267, last accessed July 31, 2013

[11]

[12]

Chief Justice King in Question of Law Reserved on Acquittal (No 1 of 1993)

Making Consent Count rape culture in Oxford and beyond The Oxford
Student.htm, last accessed September 24, 2013