Marital rape in the Philippines
Below is an excerpt from G.R. No. 187495 where the Supreme Court discussed why marriage is now considered NOT a defense in crimes of rape.
At the outset, the Court pointed out: "Husbands do not have property rights over their wives’ bodies. Sexual intercourse, albeit within the realm of marriage, if not consensual, is rape. This is the clear State policy expressly legislated in Section 266-A of the Revised Penal Code (RPC), as amended by Republic Act (R.A.) No. 8353 or the Anti-Rape Law of 1997."
MARTIAL RAPE IN THE PHILIPPINES: Interestingly, no documented case on marital rape has ever reached this Court until now. It appears, however, that the old provisions of rape under Article 335 of the RPC adhered to Hale’s irrevocable implied consent theory, albeit in a limited form. According to Chief Justice Ramon C. Aquino,[104] a husband may not be guilty of rape under Article 335 of Act No. 3815 but, in case there is legal separation, the husband should be held guilty of rape if he forces his wife to submit to sexual intercourse.[105]
In 1981, the Philippines joined 180 countries in ratifying the United Nations Convention on the Elimination of all Forms of Discrimination Against Women (UN-CEDAW).[106] Hailed as the first international women’s bill of rights, the CEDAW is the first major instrument that contains a ban on all forms of discrimination against women. The Philippines assumed the role of promoting gender equality and women’s empowerment as a vital element in addressing global concerns.[107] The country also committed, among others, to condemn discrimination against women in all its forms, and agreed to pursue, by all appropriate means and without delay, a policy of eliminating discrimination against women and, to this end, undertook:
(a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle;
(b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women;
x x x x
(f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women;
(g) To repeal all national penal provisions which constitute discrimination against women.[108]
(b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women;
x x x x
(f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women;
(g) To repeal all national penal provisions which constitute discrimination against women.[108]
In compliance with the foregoing international commitments, the Philippines enshrined the principle of gender equality in the 1987 Constitution specifically in Sections 11 and 14 of Article II thereof, thus:
Sec. 11. The State values the dignity of every human person and guarantees full respect for human rights.
x x x x
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.
x x x x
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.
The Philippines also acceded to adopt and implement the generally accepted principles of international law such as the CEDAW and its allied issuances, viz:
Article II, Section 2. The Philippines renounces war as an instrument of national policy, and adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. (Emphasis ours)
The Legislature then pursued the enactment of laws to propagate gender equality. In 1997, R.A. No. 8353 eradicated the stereotype concept of rape in Article 335 of the RPC.[109] The law reclassified rape as a crime against person and removed it from the ambit of crimes against chastity. More particular to the present case, and perhaps the law’s most progressive proviso is the 2nd paragraph of Section 2 thereof recognizing the reality of marital rape and criminalizing its perpetration, viz:
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.
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.
Read together with Section 1 of the law, which unqualifiedly uses the term “man” in defining rape, it is unmistakable that R.A. No. 8353 penalizes the crime without regard to the rapist’s legal relationship with his victim, thus:
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:
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.
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.
The explicit intent to outlaw marital rape is deducible from the records of the deliberations of the 10th Congress on the law’s progenitor’s, House Bill No. 6265 and Senate Bill No. 650. In spite of qualms on tagging the crime as ‘marital rape’ due to conservative Filipino impressions on marriage, the consensus of our lawmakers was clearly to include and penalize marital rape under the general definition of ‘rape,’ viz:
MR. DAMASING: Madam Speaker, Your Honor, one more point of clarification in the House version on Anti-Rape Bill, House Bill No. 6265, we never agreed to marital rape. But under Article 266-C, it says here: “In case it is the legal husband who is the offender…” Does this presuppose that there is now marital rape? x x x.
MR. LARA: x x x [I]n this jurisdiction, well, I only have a limited, very limited 17 years of private practice in the legal profession, Madam Speaker, and I believe that I can put at stake my license as a lawyer in this jurisdiction there is no law that prohibits a husband from being sued by the wife for rape. Even jurisprudence, we don’t have any jurisprudence that prohibits a wife from suing a husband. That is why even if we don’t provide in this bill expanding the definition of crime that is now being presented for approval, Madam Speaker, even if we don’t provide here for marital rape, even if we don’t provide for sexual rape, there is the right of the wife to go against the husband. The wife can sue the husband for marital rape and she cannot be prevented from doing so because in this jurisdiction there is no law that prohibits her from doing so. This is why we had to put second paragraph of 266-C because it is the belief of many of us. x x x, that if it is true that in this jurisdiction there is marital rape even if we don’t provide it here, then we must provide for something that will unify and keep the cohesion of the family together that is why we have the second paragraph.
MR. DAMASING: Madam Speaker, Your Honor, under the House version specifically House Bill No. 6265 our provision on a husband forcing the wife is not marital rape, it is marital sexual assault.
MR. LARA: That is correct, Madam Speaker.
MR. DAMASING: But here it is marital rape because there is no crime of sexual assault. So, Your Honor, direct to the point, under Article 266-C, is it our understanding that in the second paragraph, quote: “In case it is the legal husband who is the offender, this refers to marital rape filed against the husband? Is that correct?
MR. LARA: No, Madam Speaker, not entirely, no. The answer is no.
MR. DAMASING: So if the husband is guilty of sexual assault, what do you call it?
MR. LARA: Sexual assault, Madam Speaker.
MR. DAMASING: There is no crime of sexual assault, Your Honor, we have already stated that. Because under 1 and 2 it is all denominated as rape, there is no crime of sexual assault. That is why I am sorry that our House version which provided for sexual assault was not carried by the Senate version because all sexual crimes under this bicameral conference committee report are all now denominated as rape whether the penalty is from reclusion perpetua to death or whether the penalty is only prision mayor. So there is marital rape, Your Honor, is that correct?
x x x x
MR. DAMASING: Madam Speaker, Your Honor, I am in favor of this. I am in favor of punishing the husband who forces the wife even to 30 years imprisonment. But please do not call it marital rape, call it marital sexual assault because of the sanctity of marriage. x x x.[110] (Emphasis ours)
HON. APOSTOL: In our version, we did not mention marital rape but marital rape is not excluded.
HON. ROCO: Yeah. No. But I think there is also no specific mention.
HON. APOSTOL: No. No. No. Silent lang ‘yung marital rape.
x x x x
HON. ROCO: x x x [I]f we can retain the effect of pardon, then this marital rape can be implicitly contained in the second paragraph. x x x So marital rape actually was in the House version x x x. But it was not another definition of rape. You will notice, it only says, that because you are the lawful husband does not mean that you cannot commit rape. Theoretically, I mean, you can beat up your wife until she’s blue. And if the wife complains she was raped, I guess that, I mean, you just cannot raise the defense x x x[:] I am the husband. But where in the marriage contract does it say that I can beat you up? That’s all it means. That is why if we stop referring to it as marital rape, acceptance is easy. Because parang ang marital rape, married na nga kami. I cannot have sex. No, what it is saying is you’re [the] husband but you cannot beat me up. x x x. That’s why to me it’s not alarming. It was just a way of saying you’re [the] husband, you cannot say when I am charged with rape x x x.
PRESIDING OFFICER SHAHANI: All right, so how do you propose it if we put it in[?]
HON. ROCO: x x x [A]ll we are saying [is] that if you are the lawful husband does not mean you can have carnal knowledge by force[,] threat or intimidation or by depriving your wife reason, a grave abuse of authority, I don’t know how that cannot apply. Di ba yung, or putting an instrument into the, yun ang sinasabi ko lang, it is not meant to have another classification of rape. It is all the same definition x x x.
x x x x
HON. ROCO: What is 266-F? x x x. Now if we can retain 266-F x x x, we can say that this rule is implicit already in the first proviso. It implies na there is an instance when a husband can be charged [with] rape x x x.
HON. ROXAS: Otherwise, silent na.
HON. ROCO: Otherwise, we are silent na. So parang i-delete natin ito. But it is understood that this rule of evidence is now transport[ed], put into 266-F, the effect of pardon.
PRESIDING OFFICER APOSTOL: We will retain this effect of pardon. We will remove marital rape.
HON. ROCO: No, yun ang, oo we will remove this one on page 3 but we will retain the one on page 8, the effect of pardon. x x x [I]t is inferred but we leave it because after all it is just a rule of evidence. But I think we should understand that a husband cannot beat at his wife to have sex. Di ba? I think that should be made clear. x x x.
x x x x
HON. ROCO: x x x [W]e are not defining a crime of marital rape. All we are saying is that if you’re [the] legal husband, Jesus Christ, don’t beat up to have sex. I almost want, you are my wife, why do you have to beat me up.
So, ganoon. So, if we both justify it that way in the Report as inferred in proviso, I mean, we can face up, I hope, to the women and they would understand that it is half achieved.
HON. ZAMORA: I think, Raul, as long as we understand that we are not defining or creating a new crime but instead, we are just defining a rule of evidence. x x x.
HON. ROCO: Then, in which case we may just want to clarify as a rule of evidence the fact that he is husband is not, does not negate.[111]
CHAIRMAN LARA: x x x We all agree on the substance of the point in discussion. The only disagreement now is where to place it. Let us clear this matter. There are two suggestions now on marital rape. One is that it is rape if it is done with force or intimidation or any of the circumstances that would define rape x x x immaterial. The fact that the husband and wife are separated does not come into the picture. So even if they are living under one roof x x x for as long as the attendant circumstances of the traditional rape is present, then that is rape.[112]
PRESIDING OFFICER ANGARA-CASTILLO: Mr. Chairman, x x x [t]his provision on marital rape, it does not actually change the meaning of rape. It merely erases the doubt in anybody’s mind, whether or not rape can indeed be committed by the husband against the wife. So the bill really says, you having been married to one another is not a legal impediment. So I don’t really think there is any need to change the concept of rape as defined presently under the revised penal code. This do[es] not actually add anything to the definition of rape. It merely says, it is merely clarificatory. That if indeed the wife has evidence to show that she was really brow beaten, or whatever or forced or intimidated into having sexual intercourse against her will, then the crime of rape has been committed against her by the husband, notwithstanding the fact that they have been legally married. It does not change anything at all, Mr. Chairman.
PRESIDING OFFICER APOSTOL: Yes, I think, there is no change on this x x x.[113]
MR. LARA: x x x [I]n this jurisdiction, well, I only have a limited, very limited 17 years of private practice in the legal profession, Madam Speaker, and I believe that I can put at stake my license as a lawyer in this jurisdiction there is no law that prohibits a husband from being sued by the wife for rape. Even jurisprudence, we don’t have any jurisprudence that prohibits a wife from suing a husband. That is why even if we don’t provide in this bill expanding the definition of crime that is now being presented for approval, Madam Speaker, even if we don’t provide here for marital rape, even if we don’t provide for sexual rape, there is the right of the wife to go against the husband. The wife can sue the husband for marital rape and she cannot be prevented from doing so because in this jurisdiction there is no law that prohibits her from doing so. This is why we had to put second paragraph of 266-C because it is the belief of many of us. x x x, that if it is true that in this jurisdiction there is marital rape even if we don’t provide it here, then we must provide for something that will unify and keep the cohesion of the family together that is why we have the second paragraph.
MR. DAMASING: Madam Speaker, Your Honor, under the House version specifically House Bill No. 6265 our provision on a husband forcing the wife is not marital rape, it is marital sexual assault.
MR. LARA: That is correct, Madam Speaker.
MR. DAMASING: But here it is marital rape because there is no crime of sexual assault. So, Your Honor, direct to the point, under Article 266-C, is it our understanding that in the second paragraph, quote: “In case it is the legal husband who is the offender, this refers to marital rape filed against the husband? Is that correct?
MR. LARA: No, Madam Speaker, not entirely, no. The answer is no.
MR. DAMASING: So if the husband is guilty of sexual assault, what do you call it?
MR. LARA: Sexual assault, Madam Speaker.
MR. DAMASING: There is no crime of sexual assault, Your Honor, we have already stated that. Because under 1 and 2 it is all denominated as rape, there is no crime of sexual assault. That is why I am sorry that our House version which provided for sexual assault was not carried by the Senate version because all sexual crimes under this bicameral conference committee report are all now denominated as rape whether the penalty is from reclusion perpetua to death or whether the penalty is only prision mayor. So there is marital rape, Your Honor, is that correct?
x x x x
MR. DAMASING: Madam Speaker, Your Honor, I am in favor of this. I am in favor of punishing the husband who forces the wife even to 30 years imprisonment. But please do not call it marital rape, call it marital sexual assault because of the sanctity of marriage. x x x.[110] (Emphasis ours)
HON. APOSTOL: In our version, we did not mention marital rape but marital rape is not excluded.
HON. ROCO: Yeah. No. But I think there is also no specific mention.
HON. APOSTOL: No. No. No. Silent lang ‘yung marital rape.
x x x x
HON. ROCO: x x x [I]f we can retain the effect of pardon, then this marital rape can be implicitly contained in the second paragraph. x x x So marital rape actually was in the House version x x x. But it was not another definition of rape. You will notice, it only says, that because you are the lawful husband does not mean that you cannot commit rape. Theoretically, I mean, you can beat up your wife until she’s blue. And if the wife complains she was raped, I guess that, I mean, you just cannot raise the defense x x x[:] I am the husband. But where in the marriage contract does it say that I can beat you up? That’s all it means. That is why if we stop referring to it as marital rape, acceptance is easy. Because parang ang marital rape, married na nga kami. I cannot have sex. No, what it is saying is you’re [the] husband but you cannot beat me up. x x x. That’s why to me it’s not alarming. It was just a way of saying you’re [the] husband, you cannot say when I am charged with rape x x x.
PRESIDING OFFICER SHAHANI: All right, so how do you propose it if we put it in[?]
HON. ROCO: x x x [A]ll we are saying [is] that if you are the lawful husband does not mean you can have carnal knowledge by force[,] threat or intimidation or by depriving your wife reason, a grave abuse of authority, I don’t know how that cannot apply. Di ba yung, or putting an instrument into the, yun ang sinasabi ko lang, it is not meant to have another classification of rape. It is all the same definition x x x.
x x x x
HON. ROCO: What is 266-F? x x x. Now if we can retain 266-F x x x, we can say that this rule is implicit already in the first proviso. It implies na there is an instance when a husband can be charged [with] rape x x x.
HON. ROXAS: Otherwise, silent na.
HON. ROCO: Otherwise, we are silent na. So parang i-delete natin ito. But it is understood that this rule of evidence is now transport[ed], put into 266-F, the effect of pardon.
PRESIDING OFFICER APOSTOL: We will retain this effect of pardon. We will remove marital rape.
HON. ROCO: No, yun ang, oo we will remove this one on page 3 but we will retain the one on page 8, the effect of pardon. x x x [I]t is inferred but we leave it because after all it is just a rule of evidence. But I think we should understand that a husband cannot beat at his wife to have sex. Di ba? I think that should be made clear. x x x.
x x x x
HON. ROCO: x x x [W]e are not defining a crime of marital rape. All we are saying is that if you’re [the] legal husband, Jesus Christ, don’t beat up to have sex. I almost want, you are my wife, why do you have to beat me up.
So, ganoon. So, if we both justify it that way in the Report as inferred in proviso, I mean, we can face up, I hope, to the women and they would understand that it is half achieved.
HON. ZAMORA: I think, Raul, as long as we understand that we are not defining or creating a new crime but instead, we are just defining a rule of evidence. x x x.
HON. ROCO: Then, in which case we may just want to clarify as a rule of evidence the fact that he is husband is not, does not negate.[111]
CHAIRMAN LARA: x x x We all agree on the substance of the point in discussion. The only disagreement now is where to place it. Let us clear this matter. There are two suggestions now on marital rape. One is that it is rape if it is done with force or intimidation or any of the circumstances that would define rape x x x immaterial. The fact that the husband and wife are separated does not come into the picture. So even if they are living under one roof x x x for as long as the attendant circumstances of the traditional rape is present, then that is rape.[112]
PRESIDING OFFICER ANGARA-CASTILLO: Mr. Chairman, x x x [t]his provision on marital rape, it does not actually change the meaning of rape. It merely erases the doubt in anybody’s mind, whether or not rape can indeed be committed by the husband against the wife. So the bill really says, you having been married to one another is not a legal impediment. So I don’t really think there is any need to change the concept of rape as defined presently under the revised penal code. This do[es] not actually add anything to the definition of rape. It merely says, it is merely clarificatory. That if indeed the wife has evidence to show that she was really brow beaten, or whatever or forced or intimidated into having sexual intercourse against her will, then the crime of rape has been committed against her by the husband, notwithstanding the fact that they have been legally married. It does not change anything at all, Mr. Chairman.
PRESIDING OFFICER APOSTOL: Yes, I think, there is no change on this x x x.[113]
The paradigm shift on marital rape in the Philippine jurisdiction is further affirmed by R.A. No. 9262,[114] which regards rape within marriage as a form of sexual violence that may be committed by a man against his wife within or outside the family abode, viz:
Violence against women and their children refers to any act or a series of acts committed by any person against a woman who is his wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty. It includes, but is not limited to, the following acts:
A. “Physical Violence” refers to acts that include bodily or physical harm;
B. “Sexual violence” refers to an act which is sexual in nature, committed against a woman or her child. It includes, but is not limited to:
A. “Physical Violence” refers to acts that include bodily or physical harm;
B. “Sexual violence” refers to an act which is sexual in nature, committed against a woman or her child. It includes, but is not limited to:
a) rape, sexual harassment, acts of lasciviousness, treating a woman or her child as a sex object, making demeaning and sexually suggestive remarks, physically attacking the sexual parts of the victim’s body, forcing her/him to watch obscene publications and indecent shows or forcing the woman or her child to do indecent acts and/or make films thereof, forcing the wife and mistress/lover to live in the conjugal home or sleep together in the same room with the abuser;
b) acts causing or attempting to cause the victim to engage in any sexual activity by force, threat of force, physical or other harm or threat of physical or other harm or coercion;
c) Prostituting the woman or child.
b) acts causing or attempting to cause the victim to engage in any sexual activity by force, threat of force, physical or other harm or threat of physical or other harm or coercion;
c) Prostituting the woman or child.
Statistical figures confirm the above characterization. Emotional and other forms of non-personal violence are the most common type of spousal violence accounting for 23% incidence among ever-married women. One in seven ever-married women experienced physical violence by their husbands while eight percent (8%) experienced sexual violence. (G.R. No. 187495. April 21, 2014)
