Republic of the Philippines
HOUSE OF REPRESENTATIVE!
Quezon City

SEVENTEENTH CONGRESS
First Regular Session,

HOUSE BILL NO,

Introduced by REP. TEDDY BRAWNER BAGUILAT

EXPLANATORY NOTE

Rape is a heinous crime that results in physical, social, emotional and psychological harm,
‘The number of reported rape cases (from 2011 to 2015) to the Philippine National Police (PNP)
showed an increase from 832 cases in 2011 to 2,010 cases in 2014, although it slightly
decreased to 1,986 in 2015. Rape cases ranked second among the most number of violence
against women cases. ‘The same increasing trend has been shown for cases of attempted rape
with 201 reports in 2011 to 677 reports in 2015. Cases of incestuous rape average to 30
reports per year for the past five years. With the alarming increase in the incidence of rape
including gang rape and rape among peers, and the lack of effective prosecution of perpetrators
of rape leading to the dismissal of some rape cases and impunity of rapists, there is an
imperative need to revise our law on rape towards the effective prosecution and investigation
of rape complaints, addressing the various needs of rape survivors and most importantly, in
preventing the commission of the said crime.

The Anti-Rape Law of 1997 (RA 8353)? brought positive changes to the old Revised Penal
Code provision on rape by reclassifying it from a "crime against chastity” to a “crime against
person," and by including non-penile penetration as "rape by sexual assault”. However, certain
issues still remain in the said Anti-Rape Law regarding consent, the existence of the forgiveness
clause, the age of statutory rape, evidentiary requirements, penalties and rules governing the
prosecution of rape, among others.

Firstly, our present law implicitly sets the rightful age of consent to sex at 12 years old, The
Philippines’ age of consent is actually the world’s lowest. The average age of consent
world-wide is set at 16 years old. By maintaining the very low age of sexual consent in our law,
we are leaving our children as young as 12 years old more vulnerable to sexual assault

Secondly, while RA 8353 did away with the jurisprudential requirement of exerting
tenacious resistance in order to claim that consent was not given by the victim, some courts
still have differing interpretations and perspectives in presuming consent because the law does
not have a clear articulation of what the concept of consent really pertains to. Its often difficult
for a woman to press charges because of the evidentiary rules concerning the crime, or many
cases of rape are being dismissed in courts because victims have to prove beyond reasonable

" PNP 2015 Data

Act Expanding he Definition ofthe Crime of Rape, Reclasifvng the Same asa Crime Against Persons, Amending for he Purpose Act
No. 3815, a8 Amended, Otherwise Known a the Revised Pond! Code, ad for Other Purposes [The AnticRape Lav of 1997], Republic Aet
No, 8353 (1997),

1


doubt that there was no consent,’ The current Anti-Rape law therefore needs to be amended to
reflect the idea that consent must not be presumed even in the absence of overt physical effort
to resist the act of rape or the failure of the victim to expressly and vehemently say “no” to the
act, among other circumstances.

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 restra
or limit the freedom of persons with mental disabilities to make decisions for themselves when
they can, i, during their lucid intervals, if applicable, including their freedom to engage in
voluntary sexual activities.

Thirdly, RA 8353 imposes a lighter penalty for “rape by sexual assault” committed with the
insertion of an object or instrument into the vaginal orifice, as opposed to rape by penile
penetration.’ Implicit in this provision is a disregard for the traumatic effects of an assault of
this nature.

Fourthly, the current Anti-Rape Law still 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
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 ‘ifthe 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 perpetuates gender-based violence under the shroud of
marriage, keeping women in violent and abusive relationships rather than freeing them.
Moreover, this provision on forgiveness does not recognize the basic right of the woman to say
no to unwanted sexual assault, and it provides impunity to abusive husbands since forgiveness
can easily be obtained from their wives through threats, blackmail or manipulation.

Our law should also provide a right to appeal for victims of rape in cases of acquittals
that are anchored on gender myths, gender biases, and other analogous gender-discriminatory
grounds, Restricting appeals in rape cases denies justice to rape victims who face prevailing
sexism in our judicial system, Providing justice to rape victims is of transcendental importance
that should go beyond strict implementation of rules. We need to provide explicit recourse
for victims of rape to file appeals in rape cases that were dismissed based on blatantly
‘rious grounds, The rule on double jeopardy has already been relaxed under the
DOJ Memorandum Circular No. 3 issued on April 1, 1997 allowing appeals in acquittals by the
trial court in cases where there is deprivation of due process or grave abuse of discretion.
The Supreme Court has also allowed appeals in acquittals based on deprivation of due pro
or grave abuse of discretion under exceptional circumstances.

Lastly, it is important to include provisions on support services and programs for
survivors of rape to address their sexual and reproductive health concerns [e.g. sexually
transmitted infections (STIs), reproductive tract infections (RTIs), unwanted pregnancies,

"As mentioned in the presentation of Ms, Amolia G. Suatez, RSW, MSW of the Women’s Crisis Center (WCC) on September 27, 2013
ding the Roundabe Dieussion: Addressing Gender-based Violence Through a Gender Responsive juiclal System Call to Acton,

* tora Rita A. Padilla, A Cal fo Philippine plementation of Women's Rights under CEDAW" (52 ATENEO LAW JOURNAL. 768-803,
(2008); Clara Kita Pla, Philippine Submission co auality Noss Workshop on Litipating for Sex Eaualty une 9-11, 2001) (transcript
fvaiable on le with the Center oe Reproductive Rights) at 17 [hereinafter Palla, Litgating for Sex Equa). Ts workshop vas held in
Nairobi, Kenya,

"Women's Lega Bureau, Women’s Health ad the Law, 69-71 (1997)

“People ofthe Philippines vs, Danilo F. Serano, Sr, GR. No. [3S431, September 30,1999; People vs Gomez, 126 Phi. 640 [1967} People
Boca, 138 SCRA 166 [1985]; People vx. Navart, 63 SCRA 264 [1975], People vs, Court of Appeals, 101 SCRA 450 [1980}; Aquino vs
Sison, 179 SCRA 64 [1949]; Gosion sy, RTC Cebu, 213 SCRA 138 [1992] Galman vs. Sandiganhayan, 14d SCRA 43 [1986))

2



HIV/AIDS transmission, physical injuries including death, among others], and to help them
overcome the trauma brought about by the heinous experience.

‘The proposed bill aims to introduce all the necessary amendments addressing the
issues explained above to make the Philippines’ Anti-Rape Law more gender-responsive and
more effective, But aside from that, the proposed bill also generally adopts the
recommendations given by the United Nations Committee on the Elimination of All Forms of
Discrimination Against Women (U.N, CEDAW) in the case of Karen Tayag Vertido vs.
Philippines (Communication No. 18/2008), to wit:

(a) Provide appropriate compensation commensurate with the gravity of
the violations of her rights

(b) Take effective measures to ensure that rape proceedings are fast
tracked

(c)_ Ensure impartiality and faimess in legal procedures for rape cases
which should not be affected by prejudices and stereotypes. Develop wide
range of measures targeted at the legal system to improve the judicial
handling of rape cases, including conduct of training and education to change
discriminatory attitudes towards women,

(d) Review definition of rape law to place lack of consent at its center
{e) Remove the requirement in the rape law that sexual assault be
committed by force or violence and any requirement of the proof of
penetration

(0) Consider redefining sexual assault that either require the
existence of “unequivocal and voluntary agreement” and requiring
proof by the accused of steps taken to ascertain whether the
complainant was consenting; or requires that the act take place in
“coercive circumstances’ and includes a broad range of said
circumstances.

(g) Conduct training on the CEDAW and its Optional Protocols and in
general recommendations for judges, prosecutors, lawyers and law
enforcement officers

(h) Conduct training for judges, prosecutors, lawyers, law enforcement
officers and medical personnel in understanding the crimes of rape and other
sexual offenses in a gender-sensitive manner to avoid further victimization of
women.

The State should condemn rape and eliminate gender bias in the administration of
justice in the prosecution of rape and eradicate the harmful effects of certain traditional or
customary practices, and cultural prejudice. The investigation and prosecution of criminal
cases for rape should be strengthened to ensure successful conviction of rape. ‘This includes
giving credence to the testimony of victims of rape. Successful convictions of perpetrators of
rape will prevent other rape incidents from happening by sending a strong message that rape
cannot happen with impunity, Effective prosecution and proper punishment of perpetrators
of rape encourage rape victims to come out, Ble their cases, and get vindicajfrgf their rights,

‘TEDDY BRAWNER BAGUILAT

Communication under the Optional Protocol the Convention on th Bliminatigw6f Discrimination Against Women, Letor from
{CEDAW views on Katen Vertido Communication Vertido to CEDAW Committee fHov. 29, 2007)

*petiminary Repor of she UN Special Rapporteur on VAW E/CN.A/L995/42,22 Novem 1994 (pr, 6) Deslration on the Elimination
‘of Violence Against Women (DEVAW, Gh, Ass 48 Sess, Res 4/104, Doe, 93, Antile

3



Republic of the Philippines
HOUSE OF REPRESENTATIVES
Quezon City

SEVENTEENTH CONGRESS
First Regular Sep

HOUSE BILL NO,

Introduced by REP. TEDDY BRAWNER BAGUILAT

AN ACT REVISING THE DEFINITION OF THE CRIME OF RAPE AND ITS PENALTIES
AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 8353 OTHERWISE KNOWN AS THE,
ANTI-RAPE LAW OF 1997

Be it enacted by the Senate and House of Representatives of the Philippines in Congress
assembled:

SECTION 1. Title. - This Act shall be known as “The Amended Anti-Rape Law of 2016."

SECTION 2. Rape as a Crime Against Persons. - The crime of rape shall be classified as a Crime
Against Persons under Title Eight of Act No. 3815, otherwise known as the Revised Penal
Code, as amended by Republic Act No. 8353 or the Anti-Rape Law of 1997. Accordingly, there
shall be incorporated into Title Eight of the Revised Penal 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. -

“1) Rape is a sexual assault that violates one’s right to personal security and bodily integrity
with the essential element of lack of consent. The crime may be committed by a man who has
carnal knowledge of a woman without her consent, whether or not the woman suffers
injuries; 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; 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; a person who touches or inserts any instrument
or object, including a finger, into the genital or anal orifice of another person, without the
latter's consent.

2) Rape is committed under any of the following circumstances:
“a) Lack of victim’s consent, which can be determined by the following:
’) there was no unequivocal and voluntary agreement of the victim;
) the accused failed to prove the steps taken to ascertain whether the
complainant was consenting;
“b) Through force, threat or intimidation, fraudulent machination or abuse of
authority;



“c) The act took place in coercive or other similar circumstances? rendering the
complainant incapable of giving consent.
"d) When the offended party is under sixteen (16) years of age; or is demented or
is deprived of reason and was not in his/her lucid interval during the sexual act; or is
unconscious for any reason -- even though none of the circumstances mentioned
above be present

“Article 266-B. No Presumption of Consent - There shall be no presumption of consent in the
following instances:

) when the complainant has not physically resisted the unwanted sexual conduct,
regardless of whether the perpetrator threatened to use or used physical violence. There is
no burden on the part of the complainant to prove resistance;

“b) when the accused and complainant know each other;

“c) when the complainant failed to escape; or

“d) other analogous circumstances.

“Article 266-C. Penalty and Compensation in Rape - The penalty for the crime of rape shall
be reclusion perpetua.” ‘The compensation shall be commensurate with the gravity of the
violations of the complainant's rights, as determined by the courts.

ticle 266-D. Evidence in Rape - The following principles apply in appreciation of evidence

for rape cases:

a) No evidence of commission of force or violence is required for conviction.

“b) No proof of penetration is required for conviction.

“c) Findings of post-traumatic stress disorder, rape trauma syndrome and the like among
victims of sexual violence shall be admitted as proof of lack of consent.

“"d) Rape shield The past sexual conduct of the rape victim shall be absolutely prohibited
from being presented as evidence in court and shall not be admitted as evidence.

““e) The rape survivor's sworn statements and testimony must be received with credence.

“f) There shall be no standard form or criteria of human behavioral response from the victim
in order to prove lack of consent.

“g) Failure to immediately report the crime to the authorities shall not destroy the credibility
of the complaint.

“h) Res gestae evidence shall be admitted as evidence since the very first persons to whom
the private complainant related the rape incident while in a state of trauma are crucial
witnesses.

“i) Positive medico-legal findings of injury shall be admitted as evidence while absence of
hymenal lacerations shall not disprove sexual abuse.

“j) Medico-legal and police stations should ensure proper DNA collection of samples, DNA
analysis and courts shall admit these reports as evidence

“Article 266-E. No defense, exemption, or extinguishment of crime or penalty in Rape -
Subsequent forgiveness, marriage or other form of relationship between the victim and the
offender shall not constitute a defense to a charge of rape!" and shall not, in any manner or
degree, extinguish the crime or the penalty.

> See Namibia's Combating of Rape Act (2000) requiring the existence ofceriin “coercive circumstances instead of proot of lack of
conscnt and similar definition adopts inthe Lesotho Sevual Ofences Act (2008), See Handbook for epsation on violence apainat
‘women, Departient of Feonamic and Social Afluis, Division for the Advancement of Women, United Nations Publication, New Yor,
2009, p.27

Tn Canada, the penalties ae aggravated depending i on sexual assault with a weapon, teas (oa third pat, or easing body harm
{section 272), and ageravated sexual assault, wheretn the perpetror sounds, mains, diigures or endangers the ie ofthe complainant
(ection 273)

"Lesotho, Namibia, South Attica, Swariland, and Papua New Guinea have all eriminalzed marital rape, The Namibian Combaning of Rap
Act (20) dows so by stating; "No marrige or ater relationship shall constitute a defence toa charge of rape under this Act. In 2002, the
Supreme Court of Nepal inthe ease of Form for Women, Law and Development (FWLD) vs, His Majesty's Government Nepal (MG)

5


“article 266-F. Conduct and Procedure in Court and Preliminary Investigation

“(a) The prosecutors and judges shall take effective measures to ensure that rape
proceedings are fast tracked,

“(b) The prosecutors and judges shall ensure impartiality and fairness in. legal
procedures for rape cases which should not be affected by personal views and values.

"(c) There shall be a right to appeal of victims of rape in cases of acquittals that are
anchored on gender myths and biases.

"(d) Conduct in preliminary investigation, inquests, hearings and other court
proceedings -Judges and prosecutors shall be receptive and respectful toward rape
survivors who are testifying in court. Sexist remarks, lack of sensitivity and
compassion by the judge or the prosecutor shall be prohibited,

“(e) Compromises shall not be allowed nor influenced by the court, otherwise, these

acts shall be grounds for criminal, civil, or administrative liability.

“(The Department of Justice and the local government unit where the rape complaint
‘was filed shall provide support for pro bono legal aid specializing in rape complaints.

“Article 266-G. Training - The Supreme Court (SC), Department of Justice (DOJ) and
Philippine National Police (PNP), in coordination with the Philippine Commission on Women
(PCW) shall

“(a) Conduct training on the CEDAW and its Optional Protocols and in general
recommendations for judges, prosecutors, lawyers and law enforcement officers

"(b) Conducttraining for judges, prosecutors, lawyers, law enforcement officers,
medico-legal officers, medical personnel, social workers and local government officials in
understanding the crimes of rape and other sexual offenses in a gender-sensitive manner
to avoid further victimization of women and to ensure that personal views and values do
not affect decision-making.

“Article 266-H. Counseling -The Department of Social Welfare and Development in
collaboration with the Department of Health shall ensure the following:
“(a) Training of counselors in recognizing the common mental health issues that arise in
survivors of rape;!?
“(b) Training of counselors to maintain a compassionate attitude and non-judgmental
demeanor when caring for individuals recovering from an incident of rape;"*
"(c) Conduct of a pre-test and post-test counseling for medical tests for sexually
transmitted infections (STIs), reproductive tract infections (RTIs) unwanted pregnancy,
and Human Immunodeficiency Virus Infection and Acquired Immune Deficiency
Syndrome (HIV/AIDS);
“(d) The following issues should be discussed with the patient:
4) The risk of acquiring HIV from the specific rape exposure;
ii) What is known and not known about the efficacy of Post-exposure prophylaxis
anti-retroviral treatment (PEP-ARVs);
ili) The importance of taking the HIV test and of receiving post-test counseling; and

unl he marital rape exemption to be unconstitutional and contrary 4 the Interational Covenant on ivi and Political Rights and the
‘Gonsention an the Hlinination of All Forms of Disrimination against Women, In 2003, the ntouction of the Crininal Code (Seva
Offences and Crimes ant Children) er 2002 n Papua New Guinea abolished marital immunity in aon to rape

" South Attican Model fr Post-yponure Propilans, Kwaruly Natal Network on Violnoe against Women (KZN Networs), 2008 eiting

‘onsmon mental health concer suchas chiicuty concentrating and remembering, bd dreams, sonni, nervousness, fear, ability, and
"Work Hlth Organization & tnienationa Labour Organization, Post Exposure Prophylaxis fo Prevent HIV Ineeton: Joint WHOMLO
{guidelines on post-expesure prophylaxis (PEP ARVS) to prevent HIV infection, Geneva, 207.

South ican Model for Post-Exposure Prophylaxis, Kwarulu Natal Network: on Violence against Women (KZN Network), 2008,

6


iv) The possible side effects of the medication should the physician and/or patient
decide to take it.

“Article 266-1. Protocol on Medical Provision and Standard Medico-Legal Examination
and Report: There shall be a protocol developed on the medical provision of treatment of
injuries, counseling, prevention and management of RTIs, STIs, unwanted pregnancy, and
HIV/AIDS transmission including mother-to-child transmission for victims of rape.

“Article 266-J. Medico-Legal Examination and Report - There shall be Standardized
Medico-legal examination reports, forensic rape kits, and the whole range of medical and
psychological services for victims of rape violence including kits for: treatment and care for
prevention and management of RTIs, STIs, and unwanted pregnancy’ and treatment and care
to prevent HIV transmission and to prevent mother-to-child transmission of HIV.

“Article 266-K. Roles of Government Agencies

“(1) Monitoring and Evaluation — PCW shall conduct an annual monitoring and evaluation
of the implementation of this Act and other related acts. DOJ, SC and PNP shall provide
assistance to the PCW in the conduct of the annual monitoring and evaluation.

“PCW shall be the central advisory, planning and policy-making body for the
comprehensive and integrated rape prevention in the country. The PCW shall perform the
following functions:

(a) Formulate a comprehensi
crime of rape;
“(b) Monitor and oversee the strict implementation of this Act;
*(c) Coordinate the conduct of massive information dissemination and campaign
on the existence of the law and the various issues and problems attendant to rape
through the LGUs, concerned agencies, and NGOs;
“(d) Direct other agencies to immediately respond to the problems brought to
their attention;
“(e) Develop the mechanism to ensure the timely, coordinated, and effective
response to cases of rape;

“() Exercise all the powers and perform such other functions necessary to
implement the provisions, and attain the purposes and objectives of this Act.

1¢ and integrated policy framework to prevent the

(2) Reports. — PCW, DOJ and SC, in coordination with concerned government agencies,
shall submit to Congress comprehensive report on the activities and accomplishments
related to this Act every four years, Such report shall contain assessments and evaluation
of intervention programs, plans and strategies for the medium- and long-term prevention
and management program on rape.

SECTION 3. Separability Clause, ~ If any provision or part of this Act is declared void or
unconstitutional, the remainder of the law or the provision not otherwise affected shall remain
valid and subsisting,

SECTION 4, Repeating Clause. - Article 266 of Act No. 3815, as amended by Republic Act 8353,
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 repeated accordingly.

"World Health Organization & Intemational Labour Onganization, Posttiposure Prophslais to Preven HV Tnfetion: Joint WHONILO
guidelines on post-exposure prophylaxis (PEP ARVS) to prevent HI infection, Geneva, 2007
World Hath Organization & Iteration Labour Organization, PostEspesure Propiyis to Prevent HIV fnfetion’ Joint WHONILO
thuidelines on pos-expesure prophylaxis (PEP ARVS) to prevent HIV infection, Geneva, 2007

7


SECTION 5. Effectivity Clause.- This Act shall take effect fifteen (15) days after its publication
int least two (2) newspapers of general circulation

Approved,