Beruflich Dokumente
Kultur Dokumente
Rape is one of the most prevalent forms of violence against women (VAW) in the
Philippines. Reported rape cases ranked third (13.1%) of the total reported VAW
cases in the country from 1999 to 2009. The hard fact is that this is not yet the true
representation of the problem. Due to cultural and social stigmatization associated
with rape, many women victims prefer to maintain their silence and not report their
ordeal to the authorities.
The government with the aid of NGOs have taken initiatives to set up crisis centers
for rape survivors in collaboration with the different sectors of the community to
help victims deal with the trauma and encourage them to report rape. Several raperelated laws have also been passed to address the concern. Through the provision
of suitable legal support and health services, it is hoped that women victims of rape
be encouraged to come forward for proper intervention and justice to be served
accordingly.
2. Any person who, under any of the above conditions, commits an act of sexual
assault through oral or anal sex or by inserting an instrument or object into the anal
or genital orifice of another person.
6. On statutory rape. The new law provides that statutory rape may be committed
even though none of the three other modes are present. RA 8353 provides that rape
is committed by a man who shall have carnal knowledge of a woman under any of
the following circumstances:
a) Through force, threat, or intimidation;
b) When the offended party is deprived of reason or otherwise unconscious;
c) By means of fraudulent machination or grave abuse of authority; and
d) When the offended party is under twelve (12) years of age or is demented,
even though none of the circumstances mentioned above be present.
7. Kind of resistance and proof. Any physical overt act manifesting resistance
against the rape in any degree from the victim is admissible as evidence of lack of
consent. Tenacious resistance, however, is not required. Neither is a determined and
persistent physical struggle on the part of the victim necessary. In drafting the new
law, the legislators agreed that Article 266-D is intended to soften the jurisprudence
of the 1970s when resistance to rape was required to be tenacious. The lawmakers
took note of the fact that rape victims cannot mount a physical struggle in cases
where they were gripped by overpowering fear or subjugated by moral authority.
Article 266-D tempered the case law requirement of physical struggle by the victim
with the victims fear of the rapist or incapacity to give valid consent. Thus, the law
now provides that resistance may be proved by any physical overt act in any degree
from the offended party (People vs. Dulay).
cases, shall establish in every province and city a rape crisis center located in a
government hospital or health clinic or in any other suitable place for the purpose
of:
(a) Providing rape victims with psychological counselling, medical and health
services, including their medico-legal examination;
(b) Securing free legal assistance or service, when necessary, for rape victims;
(c) Assisting rape victims in the investigation to hasten the arrest of
offenders and the filing of cases in court;
For this purpose, a women's desk must be established in every police precinct
throughout the country to provide a police woman to conduct investigation of
complaints of women rape victims. In the same manner, the preliminary
7. When the offender knows that he is afflicted with HIV AIDS or any other
sexually transmissible disease and the virus or disease is transmitted to the
victim.
8. When committed by any member if the Armed Forces of the Philippines or
paramilitary units of the Philippine National Police or any law enforcement
agency or penal institution, when the offender took advantage of his position
to facilitate the commission of the crime.
9. When by reason or on the occasion of the rape, the victim has suffered
permanent mutilation or disability.
10.When the offender knew the pregnancy of the offended party at the time of
the commission of the crime.
11.When the offender knew of the mental disability, emotional disorder and/or
physical handicap of the offended party at the time of the commission of the
crime.
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 13-15 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 privatepublic 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].
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.
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
http://www.pcw.gov.ph/wpla/rape
Comments on law
Marriage extinguishes criminal liability of rape.
Philippine Anti-Rape Law of 1997
Republic Act 8353 (The Anti-Rape Law of 1997), which was a huge leap forward in
the countrys drive against rapists, unfortunately had a tiny setback, specifically
Article 266 Section C which states:
The subsequent valid marriage between the offended party shall extinguish the
criminal action or the penalty imposed. In case it is the legal husband who is the
offender, the subsequent forgiveness by the wife as the offended party shall
extinguish the criminal action or the penalty: Provided, that the crime shall not be
extinguished or the penalty shall not be abated if the marriage is void ab initio.
The offender being free from criminal liability after marrying the victim is tied
closely to a Spanish-era provision in the Revised Penal Code, specifically Article 344
which states in cases of seduction, abduction, acts of lasciviousness and rape, the
marriage of the offender with the offended party shall extinguish the criminal action
or remit the penalty already imposed upon him.
As to the forgiveness thing, the rationale behind it is to afford the offending
husband a chance to start anew with his wife.
On Penalty:
The American colonizers, adopting most of the provisions under the Codigo Penal of
1848, retain the death penalty.
The Codigo Penal was revised in 1932. Treason, parricide, piracy, kidnapping, murder,
rape, and robbery with homicide were considered capital offenses and warranted the
death penalty.