Republic of the Philippines
Congress of the Philippines
Metro Manila

Sixteenth Congress

First Regular Session

ny 812

House Bill No.

INTRODUCED BY EMMI A. DE JESUS, LUZVIMINDA C. ILAGAN, FERNANDO HICAP, CARLOS
ZARATE, NERI COLMENARES, JAMES MARK TERRY RIDON and ANTONIO TINIO

Explanatory Note

Rape is no doubt the most horrendous of all forms of sexual violence and is one of the
most heinous crimes that can be committed against a person. * Rape causes
immeasurable anguish to the victim and his/her family. Simply put, rape ruins the life of

the victim and that of his or her family.

It becomes exceptionally appalling when committed by a person with public or moral
authority, with willful use of one’s office or authority, resources and facilities, or when
committed with the knowledge or even help of the head of a public office or institution

to which the perpetrator belongs.

* The following data on Rape cases have been gathered by Center for Women’s Resources Philippines
(cwr):
© From January 2000 to August 2011, there were 14, 201 recorded cases of rape (76.56%),
attempted rape (18.68%) and incestuous rape (5.74%). [PNP-WCPC, 2011]
«There were 28 recorded cases of gang rape from January to June 2011. (CWR, 2012]
‘© One child is raped every 2 hours and 30 minutes. [PNP-WCPC, 2010]
© Based from CWR’s record, the youngest victim of rape is 3 years old while the oldest is 86 years
old. [CWR, 2012]
‘© Majority of the victims are within the ages 11 to 20 years old. [CWR, 2012]
‘+ From January to June 2011, there were 13 recorded cases of rape perpetrated by police, military,
paramilitary, CAFGUs. [CWR, 2012].


While RA 8353 which reclassified rape from a crime against chastity to that of a crime
against persons also did away with the case law requirement of tenacious resistance,
courts still have differing interpretations as to resistance. Moreover, the apparent failure

of the law in defining consent from the perspective of the victim had paved the way for

some judges to rule that the victims had consented to the sexual intrusion when they
were not able to put up any amount of resistance. There is thus a need for the law to,

zero-in on the absence of consent as the central element in the crime of rape.

What for many may be the most intimate expression of love or of oneness, when done
without the consent or against the will of one party, is transformed into that heinous
crime called rape. It is the lack of or inability to give consent that violates the victim's
body and dignity. It is the lack of or inability to give consent that leaves a lasting mark in
the victim's psyche and whole-being.

In the views on the Karen Tayag Vertido vs. Philippines (Communication No. 18/2008)
adopted by the CEDAW Committee on July 16, 2010 the CEDAW Committee
recommended that the Philippine definition in the anti-rape law should center on the
lack of consent as the core of the definition of rape. It is the lack of or inability to give

consent that is the very essence of the crime of rape.

In the hope of addressing the inadequacies in the law, this bill highlights the essence of
the crime of rape which is lack of consent in the following manner, to wit:
1) It provides for specific and clearer instances of a form of rape called sexual
violation which is premised on lack of consent;
2) It provides for instances when lack of consent is presumed; and
3) It addresses the special situation of those who, by reason of their mental or

physical state, are unable to give consent.

Particularly, in providing for instances when lack of consent is presumed, the onus to
prove consent is placed on the accused and not on the victim. Lack of consent is
presumed in six (6) instances as follows:

1) When the act is attended by force, threat, or intimidation;


2) When there is fraudulent machination, grave abuse of authority or moral
ascendancy;

3) When the victim is deprived of reason or is otherwise unconscious. ~ This hopes
to address the reality that not all forms of resistance or non-consent is expressed
in the form of physical resistance. This also reinforces the reality that rape does
not only occur among or between strangers and that, in fact, peer rape or rape
perpetrated by a person known to the victim can be more traumatic for the
victim. Non-consensual sexual act committed through fraudulent machination,
grave abuse of authority or moral ascendancy is as deplorable as a non-
consented sexual act that was perpetrated with the use of force or physical
violence.

4) When the victim is incapable of giving consent due to his or her mental or
physical state or capacity;

5) When the victim is below fifteen years (15) of age or if fifteen (15) years of age
and above, but he or she has a mental capacity of that of a fifteen (15) year old
or below and the offender is of legal age.

6) When the offender is a biological or adoptive parent or a de facto parent or a
person who has raised the offended parent without the benefit of legal adoption,

ascendant, step-parent, de facto or legal guardian, relative by consanguinity or

affinity within the third civil degree, or the common-law spouse or live-in partner
of the parent of the victim. - This does away does away with the requisite of
proving a legal relationship between parties in cases of rape by related parties as
in the case of a rape committed by a parent against his/her child by the specific
inclusion of a de facto parent or a common-law spouse or live-in partner of the

parent of the victim.

To be consistent with the proposed definition of consent, Article 266-D which provides
that “any physical overt act manifesting resistance or that the victim is so situated that
he/she is incapable of giving consent may be accepted as evidence in the prosecution of

the crime” is proposed to be repealed.


Aside from clarifying the definition of consent, the bill also seeks to recognize that other
forms of unwanted sexual conduct against males, young boys in particular be
recognized as rape. It is not unknown that rape as a hate crime may be perpetuated

against members of the LGBT (lesbians, gays, bisexuals, transgenders) community.

The bill also includes in the list of aggravating circumstances the act of recording and
Public dissemination of the rape. Recently, a university student in Las Pifias was drugged
and raped by a group of young men; the commission of the crime was uploaded by the
perpetrators in the internet for the public to see, increasing the humiliation and

victimization of the offended party.

To further highlight the seriousness of the crime of rape and to address the power
relations that currently exist in marriage, this bill also seeks to repeal of Article 266-C
which pardons the rapist if he subsequently marries the victim or the rapist-husband if

pardoned by the wife;

Notwithstanding the stigma of being victims, being violated and all, some women brave
their experience and fight their battle. However, not everyone fought up to the end.
Most succumbed to fear and trauma for recounting each and every single act done
against their will and against their person. They retreat for being raped once more in the
public during trials. Tribulations are created in different forms; most are sugar-coated
and deceiving. Only braver women kept their heads up but not all rape victims end up

victors.

While all rape victims may not be as brave as Karen Vertido, women and other victims of
rape who would want to seek justice through the judicial system must be given ample

remedies under the law.


Approval of this bill is earnestly sought.

A. Raitt /
EMMI A. DE JESUS

Gabriela Women’s Party

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LUZYJMINDA C. ILAC FERNANDO HI
briela Women’s Party Ahakpawis Paffylist

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CARLOS ee N

Bayan Muna Partylist

RK TERRY L)RIDON NTONIQL-A7TINI

Kabataan Partylist ACT Teachers Partylist


Republic of the Philippines
Congress of the Philippines
Metro Manila

Sixteenth Congress
First Regular Session

i 812

House Bill No.

INTRODUCED BY EMMI A. DE JESUS, LUZVIMINDA C. ILAGAN, FERNANDO HICAP, CARLOS
ZARATE, NERI COLMENARES, JAMES MARK TERRY RIDON and ANTONIO TINIO

AN ACT AMENDING CHAPTER 3 OF REPUBLIC ACT 8353,
‘ALSO KNOWN AS THE ANTI-RAPE LAW OF 1997

SECTION 1. The crime of rape, classified as a Crime Against Persons under Title Eight of Act No.
3815, otherwise known as the Revised Penal Code is hereby amended. The Title Eight of the said
Code, Chapter Three on Rape, shall 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;
¢)_ 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-A,
SECTION 1. RAPE: WHEN AND HOW COMMITTED. RAPE IS COMMITTED:

1) BY ANY PERSON WHO SHALL HAVE SEXUAL INTERCOURSE WITH ANOTHER PERSON
WITHOUT THE LATTER'S CONSENT;

2) BY ANY PERSON WHO SHALL SEXUALLY VIOLATE ANOTHER PERSON BY COMMITTING
ANY OF THE FOLLOWING:

a) INSERTING HIS PENIS INTO ANOTHER PERSON'S MOUTH OR ANAL ORIFICE;

b) INSERTING A FINGER OR ANY PART OF THE BODY INTO THE VICTIM'S GENITAL OR
ANAL ORIFICE; AND

¢) INSERTING AN INSTRUMENT OR OBJECT INTO THE VICTIM'S GENITAL OR ANAL
ORIFICE;

SECTION 2. PRESUMPTION OF LACK OF CONSENT. ~ LACK OF CONSENT IS PRESUMED UNDER
ANY OF THE FOLLOWING CIRCUMSTANCES:

a) WHEN THE ACT IS ATTENDED BY FORCE, THREAT, OR INTIMIDATION;

b) WHEN THERE IS FRAUDULENT MACHINATION, GRAVE ABUSE OF AUTHORITY OR
MORAL ASCENDANCY;

c) WHEN THE VICTIM IS DEPRIVED OF REASON OR IS OTHERWISE UNCONSCIOUS;

d) WHEN THE VICTIM IS INCAPBLE OF GIVING CONSENT DUE TO HIS OR HER MENTAL
CPACITY;

e) WHEN THE VICTIM IS BELOW FIFTEEN YEARS (15) OF AGE OR IF FIFTEEN (15) YEARS
OF AGE AND ABOVE, BUT HE OR SHE HAS A MENTAL CAPACITY OF THAT OF A
FIFTEEN (15) YEAR OLD OR BELOW AND THE OFFENDER IS OF LEGAL AGE;

f) WHEN THE OFFENDER IS A BIOLOGICAL OR ADOPTIVE PARENT OR A DE FACTO
PARENT OR A PERSON WHO HAS RAISED THE OFFENDED PARENT WITHOUT THE
BENEFIT OF LEGAL ADOPTION, ASCENDANT, STEP-PARENT, DE FACTO OR LEGAL
GUARDIAN, RELATIVE BY CONSANGUINITY OR AFFINITY WITHIN THE THIRD CIVIL
DEGREE, OR THE COMMON-LAW SPOUSE OR LIVE-IN PARTNER OF THE PARENT OF
THE VICTIM;

SECTION 3. WHEN IS RAPE DEEMED CONSUMMATED. — RAPE IS DEEMED CONSUMMATED
WHEN THE VICTIM’S GENITAL, MOUTH, OR ANAL ORIFICE IS TOUCHED BY THE SEXUAL ORGAN
OR ANY PART OF THE BODY OR ANY OBJECT USED TO COMMIT RAPE AS DEFINED IN SECTION
1, NUMBER 2;


Article 266-8. Penalties. — 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 OR HAS
DEVELOPED A PSYCHOLOGICAL DISORDER, the penalty shall be 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 of the 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:

[1) 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;]

1) WHEN THE OFFENDER IS A BIOLOGICAL OR ADOPTIVE PARENT OR A DE FACTO
PARENT OR A PERSON WHO HAS RAISED THE OFFENDED PARTY WITHOUT THE BENEFIT OF
LEGAL ADOPTION, ASCENDANT, STEP-PARENT, DE FACTO OR LEGAL GUARDIAN, RELATIVE BY
CONSANGUINITY OR AFFINITY WITHIN THE THIRD CIVIL DEGREE, OR THE COMMON-LAW
‘SPOUSE OR LIVE-IN PARTNER 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 Human ImmunoDeficiency 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;]



7) WHEN COMMITTED BY PERSONS OF PUBLIC OR MORAL AUTHORITY SUCH AS:

a) ANY MEMBER OF THE ARMED FORCES OF THE PHILIPPINES OR
PARAMILITARY 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;

b) ANY ELECTED OFFICIAL OR APPOINTED OFFICIAL PERFORMING A PUBLIC
FUNCTION, WHEN THE OFFENDER TOOK ADVANTAGE OF HIS POSITION TO
FACILITATE THE COMMISSION OF THE CRIME;

c) ANY PERSON WITH MORAL ASCENDANCY OR POSSESSING SIGNIFICANT
POLITICAL OR RELIGIOUS INFLUENCE, WHEN THE OFFENDER TOOK
ADVANTAGE OF HIS POSITION OR INFLUENCE 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;

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; and

11) WHEN THE ACT OF RAPE IS DOCUMENTED THROUGH ANY KIND OF MEDIA, AND
THE DOCUMENTED ACT OF RAPE HAS BEEN DISSEMINATED TO THE PUBLIC SUCH AS
‘THE INTERNET OR VIA CELLPHONE SMS.

[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 of the rape, homicide is committed, the penalty shall be
reclusion perpetua.

Reclusion temporal shall also 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 offender and 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 Republic Act No. 8353 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 punishedunder Article 266-A.]

SEC. 3. Separability Clause. — If any part, section, 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 335 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. Effecti
in two (2) newspapers of general

ity. - This Act shall take effect fifteen (15) days after completion of its publication
ulation.

Approved,