Strengthening the Provisions of R.A.

8353:
Amending the Anti-Rape Law
POLICY BRIEF NO. 1

This policy brief provides the rationale and recommendations for amending the
Anti-Rape Law;
redefining it by putting the element of lack of consent at its center, increasing the
age of statutory rape, and by repealing the forgiveness clause.
WHAT IS THE ISSUE? WHAT HAS BEEN OUR RECENT EXPERIENCE/S WITH
REGARDS TO THE ISSUE?

Rape is an inherent violent crime that results in physical, social, emotional and
psychological harm. The Philippine National Police recorded an increasing trend of reported
rape cases from 2011 to 2015, with 832 cases in the year 2011 to 2,010 cases in the year
2014. This slightly decreased to 1,986 in 2015. Reported rape cases ranked second among
the cases of violence against women.1 The same increasing trend is shown for cases of
attempted rape with 201 reports in 2011 to 677 reports in 2015. Cases of incestuous rape
average at 30 reports per year for the past five years.2 These reports and figures show that
rape remains a prevalent social problem.

The Anti-Rape Law of 1997 or Republic Act 8353, is progressive in terms of veering away
from the chastity framework, and in classifying rape as a crime against persons rather than
a crime committed against honor. However, certain issues still remain which require further
strengthening of the law to make it more gender-responsive, progressive and effective.

WHY IS THE ISSUE IMPORTANT?

On Consent:
Despite the enactment of the Anti-Rape Law 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.3
Consent must not only revolve around the woman’s express refusal to engage in a sexual
activity nor should it be presumed in the absence of overt physical effort to resist the act of
rape. There is a need to resolve when a consent that is freely given is a valid consent in the
context of age (minority) and mental capacity of the woman, among other circumstances.

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 aged 13-15 years old. Earlier initiation of
sexual intercourse is strongly associated with sexually transmitted infections,4 increased
risk for cervical cancer,5 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.
Capacity to consent should also take into account the mental condition of the victim. While
indeed, people who are demented, deprived of reason or are unconscious are definitely
incapable of giving valid consent to any sexual act, caution must be placed so as not to
restrain or limit the freedom of persons with mental disabilities to make decisions for
themselves when they can, i.e., during their lucid intervals, if applicable, including their
freedom to engage in voluntary sexual activities. The National Council for Disability Affairs
and other civil society organizations have raised this problematic portion of the law because
as much as they want to protect persons with mental disabilities from abuse, they also want
to maintain their independence and their right to freely decide for themselves at any chance
possible.

On the Forgiveness Clause

The current Anti-Rape Law contains a forgiveness clause that easily exonerates the offender
and poses further danger to the victim. A provision in the law which states that
the “subsequent valid marriage between the offender and the offended party shall
extinguish the criminal action or the penalty imposed” gives an easy way-out for the
offender which incentivizes him to carry out the crime. Once the female victim marries the
offender, she no longer has legal remedy to file an action for the rape that happened before
the marriage. It also recognizes that “if the offender is the legal husband…the
subsequent forgiveness by the wife who is the offended party… shall extinguish
the criminal action or the penalty.” This only perpetuates gender-based violence under
the shroud of marriage which can involve a whole range of abuses - physical, sexual, and/or
psychological - that can happen over a prolonged period of time.

WHAT ARE THE EXISTING LAWS OR POLICIES RELATED TO THE ISSUE?

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.” Further,
Section 14 of the same Article provides that “the State recognizes the role of women in
nation-building and shall ensure the fundamental equality before the law of women and
men”.
Section 12 of Republic Act 9710 or the Magna Carta of Women (MCW) provides for the
amendment or repeal of laws or provisions of laws that are discriminatory to women which,
among others, would include Republic Act 8353.

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?

In its latest jurisprudence, the Supreme Court is making progressive rulings on rape by
overcoming gender myths and gender stereotyping of rape victims. It has ruled, among
others, that in rape cases, the moral character of the victim is immaterial. Rape may be
committed not only against single women and children but also against those who are
married, middle-aged, separated, or pregnant. It has ruled that sexual intercourse, albeit
within the realm of marriage, if not consensual is rape. (People vs Jumawan, G.R. No.
187495, 21 April 2014); that a prostituted person may also be a victim of rape. (People v.
Espino, Jr., G.R. NO. 176742, 17 June 2008; People vs Penilla, G.R. No. 189324, 20 March
2014); and that even the existence of an illicit affair between the accused and the victim
does not, on its own, rule out rape as it does not necessarily mean that consent was
present. (People vs Saysot-Cias, G.R. No. 194379, 01 June 2011).
The recently decided cases also pronounce that the law does not impose a burden on the
rape victim to prove resistance because it is not an element of rape. (People vs Suarez, G.R.
No. 201151, 14 January 2015). Rape is subjective and not everyone responds in the same
way to an attack by a sexual fiend. There is no stereotypical form of reaction for a woman
when facing a traumatic experience, such as a sexual assault (People vs Achas, 189324, 20
March 2014); and that even the existence of an illicit affair between the accused and the
victim does not, on its own, rule out rape as it does not necessarily mean that consent was
present. (People vs Saysot-Cias, G.R. No. 194379, 01 June 2011).
WHAT ARE THE EXPERIENCES OF OTHER COUNTRIES IN ADDRESSING THE ISSUE?

The provision in the 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 2005.6

Under the Indian Penal Code, rape is a non-compoundable offense, an offense 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 rapist’s 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.

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 age of consent (for sexual acts) which sets
it at 12 while Japan and Vietnam at 13.

WHAT ARE THE CONSIDERATIONS IN ADDRESSING THIS ISSUE IN THE COUNTRY?

Promoting women’s 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 ensures their freedom from violence.

Responding to International Commitments

Article 2 of the Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW) calls on the States Parties to condemn discrimination against women in all its
forms, and agree to pursue by all appropriate means and without delay a policy of
eliminating discrimination against women. While the Philippines has made considerable
progress and milestones in keeping up with this commitment, the 2016 CEDAW Committee
Concluding Observations on the Philippines’ Combined 7th and 8th Periodic Reports raised
concerns over the fact that statutory rape under the Anti-Rape Law of 1997 (Republic Act
No. 8353) remains limited to cases wherein the victim is under the age of 12. Thus, the
CEDAW Committee recommends expediting the amendment of the Anti-Rape Law of 1997
putting lack of consent as primary element of the definition of rape and raising the
minimum age of sexual consent which is presently set too low at 12 years to at least 16
years.
Moreover, the United Nations Sustainable Development Goals, particularly Goal No. 5
pertaining to Gender Equality, targets, among others, the elimination of all forms of violence
against all women and girls in the public and private spheres including trafficking and sexual
and other types of exploitation.

Alignment with National Priorities

Amending the Anti-Rape Law is consistent with the new administration’s agenda on
women’s rights. 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

1. PCW proposes the following salient features of the new Anti-Rape Law:

a. Specify that rape is “a sexual assault that violates a person’s right to personal
security and bodily integrity with the essential element of lack of consent”;

b. The crime is committed by:

i. a man who has carnal knowledge of a woman without her consent,

whether or not the woman suffers injuries;

ii. a man who touches or inserts his penis into the female’s inner or outer
vaginal labia, without her consent, whether or not the woman suffers
injuries;

iii. a man who touches or inserts his penis into another person’s mouth or
anal orifice, without the person’s consent, whether or not the person
suffers injuries;

iv. a person who inserts any instrument or object, including a finger, into
the genital or anal orifice of another person, without the latter’s consent.

c. The crime is committed under any of the following circumstances:

i. Through lack of victim’s consent, force, threat or intimidation;

ii. Through fraudulent machination or abuse of authority;

iii. In coercive or other similar circumstances rendering the complainant

incapable of giving consent, including forcing another individual to
sexually assault the victim;

iv. When the offended person is deprived of reason or otherwise

unconscious, or is demented even though none of the circumstances
mentioned above be present, provided that he/she is not in his/her lucid
interval during the sexual act.
 v. Age of Statutory Rape: When the offended party is under sixteen (16)
years of age even though none of the circumstances mentioned above
be present;

d. Define “consent” as the voluntary agreement to engage in the sexual activity

in question, provided:

i. the person consenting fully understands what is being proposed;

ii. the person consenting is aware of the societal standards of what is

proposed;

iii. agreements or disagreements will be respected equally;

iv. both parties enter into the relationship or proposal voluntarily; and

v. both parties are mentally competent.

e. Specify that the use of weapon, or other external force causing physical
injuries maiming, disfigurement, or endangerment of the life of the victim be
considered as one of the aggravating circumstances of the crime.

2. PCW also calls for the repeal of Article 266-C of the Anti-Rape Law of 1997,
pertaining to the forgiveness clause which states that:
"Article 266-C. Effect of Pardon. - 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.”

3. An amendment to Article 266-D is also proposed to avoid misinterpretation, to read

as:
"Article 266-D. Presumptions. - Any physical overt act manifesting resistance against
the act of rape in any degree from the offended party, or where the offended party
is so situated as to render her/him incapable of giving valid consent, may be
accepted as evidence in the prosecution of the acts punished under Article 266-
A. However, the absence of physical resistance must not be taken as
consent on the part of the complainant. "

4. PCW also calls on the Supreme Court to consider issuing a “Rule on Trial of Rape
Cases” which may include the following:

a. Application of the “rape shield rule” as provided for in Section 6 of Republic Act
8505.

b. Guiding principles on the appreciation of evidence in rape cases.

c. Child and gender-sensitive decorum for lawyers, prosecutors, judges and other
court personnel during trial of rape cases.
CONCLUSION

The Anti-Rape Law of 1997, once amended, will become a more effective instrument in
protecting our people, especially the women and the children, from the most heinous form
of sexual violence. The recommendations stated above will transform the law into a more
gender-responsive one as it addresses gaps and lapses which its original crafters failed to
consider.

It is hoped that our legislators will prioritize and favor the immediate enactment of a law to
amend the existing Anti-Rape Law provisions, in the interest of fulfilling their mandate
under the Constitution and the Magna Carta of Women, as well as ensuring the best interest
of the child.

ENDNOTES

[1] Reports on physical injuries not included in the data.

[2] PNP-WCPC’s Annual Comparative Data on Violence Against Women for the years 2011-
2015
[3] As mentioned in the presentation of Ms. Amelia G. Suarez, RSW,MSW of the Women’s
Crisis Center (WCC) on September 27, 2013 during the Roundtable Discussion: Addressing
Gender-based Violence Through a Gender-Responsive Judicial System: Call to Action.

[4] Young Age at First Sexual Intercourse and Sexually Transmitted Infections in
Adolescents and Young Adult, Kaestle et.al, American Journal of Epidemiology, 2005.
[5] Risk factors for cervical cancer in Colombia and Spain by Bosch et.al., Int. J. Cancer,
November 11, 1992
Republic Act 8353
The Anti-Rape Law of 1997
Files:

Republic Act 8353

"AN ACT EXPANDING THE DEFINITION OF THE CRIME OF RAPE, RECLASSIFYING

THE SAME AS A CRIME AGAINST PERSONS, AMENDING FOR THE PURPOSE ACT NO.
3815, AS AMENDED, OTHERWISE KNOWN AS THE REVISED PENAL CODE, AND FOR
THE PURPOSES"

Section 1. Short Title. - This Act shall be known as "The Anti-Rape Law of 1997."

Sec. 2. Rape as a Crime Against Persons. - The crime of rape shall hereafter be
classified as a Crime Against Persons under Title Eight of Act No. 3815, as amended,
otherwise known as the Revised Penal Code. Accordingly, there shall be incorporated into
Title Eight of the same Code a new chapter to be known as Chapter Three on Rape, to read
as follows:

"Chapter Three"
"Rape"
"Article 266-A. Rape: When And How Committed. - Rape is committed:

"1) 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.

"2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof,
shall commit an act of sexual assault by inserting his penis into another person's mouth or
anal orifice, or any instrument or object, into the genital or anal orifice of another person.

"Article 266-B. Penalty. - Rape under paragraph 1 of the next preceding article shall be
punished by reclusion perpetua.

"Whenever the rape is committed with the use of a deadly weapon or by two or more
persons, the penalty shall be reclusion perpetua to death.

"When by reason or on the occasion of the rape, the victim has become insane, the penalty
shall become reclusion perpetua to death.
"When the rape is attempted and a homicide is committed by reason or on the occasion
thereof, the penalty shall be reclusion perpetua to death.

"When by reason or on the occasion ofthe rape, homicide is committed, the penalty shall be
death.

"The death penalty shall also be imposed if the crime of rape is committed with any of the
following aggravating/qualifying circumstances:

"l) When the victim is under eighteen (18) years of age and the offender is a parent,
ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil
degree, or the common-law spouse of the parent of the victim;

"2) When the victim is under the custody of the police or military authorities or any law
enforcement or penal institution;

"3) When the rape is committed in full view of the spouse, parent, any of the children or
other relatives within the third civil degree of consanguinity;

"4) When the victim is a religious engaged in legitimate religious vocation or calling and is
personally known to be such by the offender before or at the time of the commission of the
crime;

"5) When the victim is a child below seven (7) years old;

"6) When the offender knows that he is afflicted with the Human Immuno-Deficiency Virus
(HIV)/Acquired Immune Deficiency Syndrome (AIDS) or any other sexually transmissible
disease and the virus or disease is transmitted to the victim;

"7) When committed by any member of the Armed Forces of the Philippines or para-military
units thereof or 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;

"8) When by reason or on the occasion of the rape, the victim has suffered permanent
physical mutilation or disability;

"9) When the offender knew of the pregnancy of the offended party at the time of the
commission of the crime; and

"10) 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.

"Rape under paragraph 2 of the next preceding article shall be punished by prision mayor.

"Whenever the rape is committed with the use of a deadly weapon or by two or more
persons, the penalty shall be prision mayor to reclusion temporal.

"When by reason or on the occasion of the rape, the victim has become insane, the penalty
shall be reclusion temporal.

"When the rape is attempted and a homicide is committed by reason or on the occasion
thereof, the penalty shall be reclusion temporal to reclusion perpetua.
"When by reason or on the occasion ofthe rape, homicide is committed, the penalty shall be
reclusion perpetua.

"Reclusion temporal shall be imposed if the rape is committed with any of the ten
aggravating/ qualifying circumstances mentioned in this article.

"Article 266-C. Effect of Pardon. - 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.

"Article 266-D. Presumptions. - Any physical overt act manifesting resistance against the
act of rape in any degree from the offended party, or where the offended party is so
situated as to render her/him incapable of giving valid consent, may be accepted as
evidence in the prosecution of the acts punished under Article 266-A."

Sec. 3. Separability Clause. - If any part, Sec., or provision of this Act is declared invalid
or unconstitutional, the other parts thereof not affected thereby shall remain valid.

Sec. 4. Repealing Clause. - Article 336 of Act No. 3815, as amended, and all laws, acts,
presidential decrees, executive orders, administrative orders, rules and regulations
inconsistent with or contrary to the provisions of this Act are deemed amended, modified or
repealed accordingly.

Sec. 5. Effectivity. - This Act shall take effect fifteen (15) days after completion of its
publication in two (2) newspapers of general circulation.

Approved: September 30, 1997.