WOMEN AND THE LAW AND CHILDRENS RIGHTS THE PHILIPPINE EXPERIENCE

By Myrna S. Feliciano MCLE Executive Director Professor II, Philippine Judicial Academy Professorial Lecturer, U.P. College of Law

 2000 CENSUS Population 76,504,077 38.5 million or 50.36% are males 38.0 million or 49.64% are females 15-49 years 51.04% females of child-bearing 43.89% single (52.94% males; 47.06 females 45.66% are married 10.45% - widowed, separated, divorced (75.72% females; 24.28% males)

Age Group 0-14 years 37.01% 15-64 years 59.16% 65 over 3.83% Every 100 persons of working age supports 63 young dependents and 6 old dependents. Female headed household 15.4% with average size of 4 persons

19 years or younger 36.3 million 5-17 years 3.5 million work under grueling conditions

HISTORICAL BACKGROUND
Pre-Spanish times women held in high esteem Spanish times reoriented as docile, obedient and virtuous American era introduced universal education social reforms Today high level of education and relative independence in combining work and family

However, this veneer of achievement--- masks strong patriarchal institutions, practices and attitudes predominant in Philippine society -- relationship regulated by stereotypes and double standards - females are weaker and submissive vis-vis males is stronger and aggressive - women as caregivers and homemakers - men as breadwinners & heads of families

LEGAL REFORMS AFFECTING WOMEN

1987 Constitution, Art. II, sec. 14. The State recognizes the role of women in nation-building and shall ensure the fundamental equality before the law of women and men. Philippine Development Plan for Women (PDPW), 1989-1992

 Philippine Plan for Gender-Responsive Development (PPGD), 1995-2005 Research project on A Gender Analysis of Philippine Laws 14,959 statutes UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Philippines ratified it on 05 August 1981

AMENDMENT OF DISCRIMINATORY STATUTES

1. RA 6725 (1989) amending Art. 135 of Labor Code unlawful for any employer to discriminate any woman employee with respect to terms and conditions of employment solely on account of her sex.

2. Labor Code
Art. 136 Prohibits precondition for employment not to get married Art. 137 prohibits the discharge of women on account of her pregnancy

Cases: Zialcita v. PAL, DOLE Case No. R04-3-3399-76, May 27, 1976; PT&T Co. v. NLRC, G.R. No. 118978, 23 May 1997

3. RA 7192 (1991) Women in Development and Nation-Building Act - Women of legal age shall have: - capacity to act and enter into contracts, security and credit arrangements - access to all government and private sector programs, loans and non-material resources

- opportunities to enroll in all military schools of AFP & PNP - join social and cultural clubs - avail of social security, i.e. SSS, GSIS, & PAG-IBIG through their spouses - ensure substantial portion of foreign assistance funds be allocated to women support programs

4. RA 7322 (1992) increased maternity benefits given to women workers in the private sector and equalized maternity benefits given to public sector under the Revised GSIS Act. 5. RA 8187 (1996) Paternity Leave Act which entitles fathers 7 days leave for first 4 deliveries of legitimate spouse with whom he is cohabiting

6. RA 8042 (1995) Migrant Workers & Overseas Filipinos Act - codification and institution of policies of overseas employment - establishment of a higher protection and promotion of welfare of migrant workers and their families and overseas Filipinos in distress

- limited countries of deployment to jobs that required skilled workers - gives both documented and undocumented workers equal protection and treatment - other provisions from funding to illegal recruitment - deregulation of the labor migration industry

VIOLENCE AGAINST WOMEN AND CHILDREN

UN Declaration on the Elimination of Violence Against Women (VAW) Any act of gender-based violence that results in or is likely to result in physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.

Encompasses but not limited to: a. Physical, sexual and psychological violence occurring in the family, including- battering - sexual abuse of female children in the household - dowry-related violence - marital rape

- female genital mutilation - other traditional practices harmful to women - non-spousal violence; and - violence related to exploitation

b. Physical, sexual and psychological violence occurring within the general community, including: - rape - sexual abuse - sexual harassment - intimidation at work in educational institutions and elsewhere

- trafficking in women, and - forced prostitution

c. Physical, sexual and psychological violence perpetrated or condoned by the State, whenever it occurs.

RA 8353 or Anti-Rape Law of 1997

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 12 years of age or is demented, even though none of the circumstances mentioned above be present

2. By a person, who, under any of the circumstances mentioned in par. 1, shall commit an act of sexual assault by inserting his penis into another persons mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person (Art. 266-A)

Now a crime against persons 2nd paragraph is gender neutral If legal husband is offender, the subsequent forgiveness of the wife extinguishes the crime or penalty Does not apply if marriage is void ab initio

- subsequent valid marriage between offender and offended party extinguishes the crime or penalty - death penalty imposed if victim is under 18 years and offender is parent, step-parent, guardian, relative by consanguinity or affinity within 3rd degree or common-law spouse of the parent of the victim * Death penalty abolished by RA 9346 (2006)

B. RA 8505 or the Rape Victim Assistance & Protection Act of 1998

Establishment in every province and city a rape crisis center located in a government hospital or health clinic or a suitable place - providing rape victims with psychological counseling, medical and health services, including medico-legal examination - securing free legal assistance for rape victims

- assisting rape victims in the investigation - ensuring privacy and safety of rape victims - providing psychological counseling and medical services to victims family - developing and undertaking a training program for law enforcement officers, lawyers, medico-legal officers, social

workers and barangay officials on human rights and responsibilities, gender sensitivity and legal management of rape cases - adopting and implementing programs for the recovery of rape victims *DSWD is lead agency in establishment and operation of these centers

- specifies procedure which a police officer, an examining physician and prosecutor must follow upon receipt of a complaint of rape * womens desk established in every police precinct and investigated by a police woman

* physician and prosecutor must be females * right to privacy of offended party and accused > information on their identities cannot be disclosed

- rape shield provision In prosecutions for rape, evidence of complainants past sexual conduct, opinion thereof and his/her reputation shall not be admitted unless, and only to the extent that the court finds that such evidence is material and relevant to the case.

- DSWD crisis intervention units in 15 regions and 24-hour hotline and counseling services - NBI one-stop crisis unit in some of its regional offices - 3 Homes called The Haven residential care, including food, medical care, psychological services, referrals for legal, psychiatric and training in livelihood skills.

C. RA 9208 or Anti-Trafficking in Persons Act of 2003 - Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children Supplementing the UN Convention Against Transnational Organized Crime

- Inter-Agency Council Against Trafficking (IACAT) *DOJ as lead agency

Main Features: - Definition of Traffickingcovers a wide range of activities that are carried out for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage, removal or sale of organs whether any of these happened in the country or abroad or whether the victims are Filipino nationals or foreigners trafficked to the Philippines

- Redefines prostitution as any act, transaction, scheme or design involving the use of a person by another, for sexual intercourse or lascivious conduct in exchange for money, profit or any consideration, with the criminal liability assigned to those who promote it through trafficking in persons.

- Consent of a trafficked person to the intended exploitation shall be irrelevant. - Penalties: * Use of trafficked person 1st offense6 months community service and fine of P50,000 2nd & subsequent offenses imprisonment of 1 year & fine of P100,000

* Acts of Trafficking 20 years imprisonment, fine of P1-2 Million ^ to recruit, transfer, transport, harbor, provide or receive a person under pretext of domestic or overseas employment, training or apprenticeship for purposes of prostitution, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage.

^ to introduce or match for money, profit or material, economic or other consideration any person or Filipino woman to a foreign national for the above purposes ^ to offer or contract marriage, real or simulated for the above purposes

^ to undertake or organize tours or travel plans consisting of tourism packages or activities for utilizing and offering persons for prostitution, pornography or sexual exploitation ^ to hire a person to engage in prostitution or pornography ^ to adopt or facilitate the adoption of persons for the above purposes

^ to recruit, hire, adopt, transport or abduct a person, by means of threat or use of force, fraud, deceit, violence, coercion, or intimidation for the purpose of removal or sale of organs of said person ^ to recruit, transport or adopt a child to engage in armed activities in the Philippines or abroad.

*Acts that promote trafficking in persons 15 years imprisonment and fine of P500,000.00 ^ to knowingly lease or sublease, use or allow to be used any house, etc. ^to produce, print or distribute unissued, tampered, fake counseling certificates, registration stickers or a certificate or sticker as proof of compliance with government regulatory and predeparture requirements

^ to advertise, publish, print, broadcast, or distribute or cause the advertisement, publication, printing, broadcasting or distribution by any means, including use of information technology and the internet or any propaganda material that promotes trafficking in persons

^ assist in facilitating of clearances and necessary exit documents for pre-departure registration and services for departing persons for the purpose of trafficking in persons ^ assist or help in the exit and entry of persons from/to country at international and local airports, territorial boundaries and seaports who have fraudulent travel documents

^ to confiscate, conceal or destroy passports or travel documents or belongings of trafficked persons to prevent them from leaving the country or seeking redress for government agencies. ^ knowingly benefit, financial or otherwise or make use of the labor or services of a person held in involuntary servitude, forced labor, etc.

* Qualified Trafficking life imprisonment and fine of P2 million to 10 million ^ when trafficked person is a child ^ when adoption is effected through RA 8043 (Inter-Country Adoption Act of 1995)

^ when crime is committed by a syndicate or in large scale (3 or more persons conspiring syndicate, 3 or more persons, individually or as a group large scale) ^ offender is ascendant, parent, sibling or guardian who exercised authority or committed by public officer or employee

^ trafficked person is recruited to engage in prostitution with any member of the military or law enforcement agencies ^ when offender is a member of military or ^ when by reason or on occasion of the act, the offended party becomes insane, suffers mutilation or is afflicted with HIV or AIDs

* Violation of confidentiality 6 years imprisonment and fine of P500,000 to1 million VENUE where offense was committed or where any of its elements occurred or where the trafficked person actually resides at the time of the commission of the offense

FINES placed in a Trust Fund for rehabilitative and integration program of victims, mandatory programs under the law and information programs

Rights of Trafficked Person: - right to privacy - mandatory services government provides emergency shelters, counseling, free legal, medical or psychological services, livelihood and skills training and educational assistance

Legal Remedies - criminal action - civil action for damages - confiscation and forfeiture of proceeds and instruments - administrative action (closure, cancellation of permits, suspension or dismissal from service)

Services and Programs: - DFA resources and facilities and close networking with agencies here and overseas - DOLE monitor, document and report cases - DOJ special prosecutors and priority in witness protection program (RA 6981)

- DSWD rehabilitative and protection programs - NBI apprehension measures of suspected traffickers - PNP surveillance, investigation & arrest - POEA pre-employment and predeparture seminars

D. RA 9262 (2004) or Anti-Violence Against Women and Their Children - Violence Against Women and Their Children-Any act or a series of acts against a woman who is his wife, former wife or against a woman with whom the person has or had sexual or dating relationship, or against her child, whether legitimate or illegitimate, within or without family abode, which result in physical, sexual,

psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion or arbitrary deprivation of liberty - Recognizes battered woman syndrome (BWS) * refers to a scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of cumulative abuse

- women suffering from BWS do not incur any criminal or civil liability notwithstanding the absence of any of the elements for justifying circumstances of self-defense under the RPC Case: People v. Genosa, G.R. No. 135981, Jan. 15, 2004 - courts to be assisted by expert psychologists or psychiatrists

- not disqualified from having custody of her children - being under the influence of alcohol, illegal drug or other mind-altering substance not a defense by the perpetrator

Notable Features - issuance of protection orders * barangay (15 days) by punong barangay or barangay kagawad * courts temporary protection orders (30 days) and permanent protection orders

- public crime and broader enumeration of persons eligible to file petition for protection orders * offended party * parents or guardians * ascendants, descendants or collateral relatives within the 4th civil degree of consanguinity or affinity

* officers or social workers of the DSWD or LGUs * police officers preferably those in charge of women and childrens desks * Punong Barangay or Barangay Kagawad * lawyer, counselor, therapist or health care provider of petitioner * 2 concerned responsible citizens who has personal knowledge of the offense committed

- An application for a protection order family court, RTC, MetTC, MTC, MCTC which have jurisdiction over the place of petitioner - All TPOs and PPOs enforceable anywhere in the Philippines (violation-P5,000 to P50,000 and/or 6 months imprisonment)
- Conduct hearing in 1 day and if TPO is due to expire, renew for another 30 days until final judgment

- not deny the issuance of PPO on the basis of lapse of time between act of violence and filing of petition - priority over all other proceedings - violation of POs contempt of court, Rule 71, Rules of Court

- During hearing, respondents non-appearance or lack of lawyer despite proper notice not a ground for postponement. Court appoints counsel for respondent and proceeds with hearing - Court allows ex parte presentation of evidence - Court shall allow the introduction of any history of abusive conduct of respondent

- bond to keep the peace with two sureties - reliefs available to the offended party - decide within 30 days after termination of hearing on the merits

Victims Rights - treated with respect and dignity - avail of legal assistance from PAO - support services from DSWD, LGUs and DOH - paid leave of absence up to 10 days - non-payment of filing fees and other court fees - confidentiality of VAW cases

Inter-Agency Council on Violence Against Women and their Children 11 government agencies to establish programs and projects to eliminate VAWC: DSWD, NCRFW, CSC, CWC, DOJ, DILG, PNP, DOH, DepEd, DOLE & NBI

IV. Childrens Rights

UN Convention on Rights of the Child classifies the following childrens rights: a. survival rights b. protection rights c. development rights d. participation rights

A. RA 7610 or Special Protection of Children Against Child Abuse and Discrimination Act - views child principals or accessories in crimes as victims of abuse or exploitation - Acts of child abuse a. child prostitution and other sexual abuse

b. Child trafficking c. Obscene publication and indecent shows d. Other acts or neglect, abuse, cruelty or exploitation prejudicial to the childs development including those covered by PD 603, art. 59, pedophilia or use a street child to:

- beg or use begging as a means of living - act as conduit or middleman in drug trafficking or pushing; or - conduct any illegal activities

Abused Child subject to protective custody of DSWD immediately - attending physician or nurse required to make oral and written report to DSWD within 48 hours, failing to do so fine of P2,000 - teachers and administrators in public schools, probation officers and government lawyers whose work involves dealing with children required to report all incidents of child abuse

Who can file complaints: - offended child - parent or guardian of minor - officers or social workers of licensed child-minding institutions and DSWD - barangay chairman - at least 3 concerned responsible citizens of the place where violation occurred

Cases: - People v. Larin, G.R. No. 128777, Oct. 7, 1998 - Alonte v. Savellano, Jr., G.R. Nos. 131652 & 131728, March 9, 1998 - People v. Calma, G.R. No. 127126, Sept. 17, 1998

Rights of Child Victims - Confidentiality of identity (People v. Cabalquinto, G.R. No. 167692, Sept. 19, 2006) - Priority of scheduling and continuous trial - proceedings to be heard in judges chambers

Rule on Examination of a Child Witness

- guardian ad litem - support person - separate waiting area - comfortable court environment for the child - child allowed to use anatomically correct dolls, puppets, drawings, etc. - use of screens, one-way mirrors or other devices to shield child from accused - use of videotaped deposition - live-link television testimony

RA 9231 (2004) -- amends art. VIII on Child Labor of RA 7610 - below 15 years old- sole responsibility of parents/guardians and only members of family employed - should not endanger childs life, safety, health and morals - primary and secondary education

- employment in public entertainment through cinema, theater, radio or other forms of media- employment contract with parents, childs consent and DOLE approval - ensure protection, health, safety, morals and normal development of child

- measures to ensure childs exploitation or discrimination taking into account remuneration, duration and working time arrangement - subject to approval and supervision, a continuing program for training and skills for the child - secure a work permit from DOLE

Work Hours - children below 15 years- not more than 20 hours a week but not more than 4 hours a day - not allowed to work between 8 pm-6 am - children 15 and below 18- not more than 8 hours but not more than 40 hours a week

Childs income belongs to him/her in ownership:

- set aside primarily to support education or skills acquisition - secondarily to collective needs of family but not more than 20% of childs income - both parents administer childs income and property - Trust fund set for at least 30% of childs income to at least P200,000 annually * semi-annual accounting to DOLE

Prohibitions Against Worst Forms of Labor - all forms of slavery in RA 9208 such as sale and trafficking, debt bondage and serfdom, forced or compulsory labor, recruitment for use in armed conflict, use, procuring or exposing a child for prostitution or for pornographic performances especially in the internet

- use, procuring a child for illegal or illicit activities including production and trafficking of drugs and volatile substances - work whereby its nature or circumstances is hazardous or likely to be harmful to health, safety and morals of children

- exposes the child to physical, emotional or sexual abuse or work which is found to be lightly stressful psychologically or may prejudice morals and work performed underground, underwater or at dangerous heights or involves use of dangerous machinery, equipment, tools such powerdriven or explosive power-actuated tools

- exposes the child to physical danger such as but not limited to dangerous feats of balancing and physical strength or contortion in circus, manual transport of heavy loads and work performed in unhealthy environment exposing child to hazardous working conditions

- no child shall be employed as a model in any advertisement directly or indirectly promoting alcoholic beverages, intoxicating drinks, tobacco or its byproducts, gambling or any form of violence or pornography DepED formulate and implement relevant effective course designs and education programs, including non-formal ones

Complaints on cases for unlawful acts: - offended party - parents or guardians - ascendant or collateral relative within 3rd degree of consanguinity - officer, social worker or representative of child-caring institution

- DSWD officer or social worker - barangay chairman of the place where violation occurred or where child is residing - at least 3 concerned responsible citizens where child is residing or employed

Family courts and in places where there are no RTC and MTCs have concurrent jurisdiction Procedure: - preliminary investigation within 30 days from date of filing * if prima facie case- filed within 48 hours - trial of cases terminated by court not later than 90 days from filing

Victim exempted from payment of filing fees and right to free legal, medical and psychological services provided by the State Fines and penalties treated by court as a Trust Fund to be administered by DOLE - used exclusively for costs of rehabilitation and integration into mainstream of society of victims - financial programs and projects to prevent acts of child labor
LasVegasLecture/09.18-28.07