SNE ATIVES:

Republic of the Philippines
Congress of the Philippines
Metro Manila

Seventeenth Congress
First Regular Session

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House Bill No.

INTRODUCED BY GABRIELA WOMEN'S PARTY REPRESENTATIVES
EMMI A. DE JESUS and ARLENE D. BROSAS

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.

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:

+ The following data on Rape cases have been gathered by Center for Women’s Resources Philippines (CWR):

‘* The number of reported cases of rape increased from 5,132 in 2010 to 9,875 in 2014 (92% increase). This,
‘means that 1 woman or child was raped every 53 minutes.
Only 3 out of 10 women who experienced physical or sexual violence sought help to put an end to the same.
Based from CWR's record, the youngest victim of rape is 3 years old while the oldest is 86 years old. [CWR,
2012)

© Bout of 10 cases of sexual abuse were committed by the victim's husband or partner.

From June 2010 to November 2015, there were 10 reported cases of military rape where the usual victim were
children and indigenous women. [Karapatan, 2016).

© Out of several thousands of rape cases, only 7,416 accused were in jall as of December 2012. A fewer number
of these cases reached conviction.


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 foliows:

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
@ 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.
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 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.

6)

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.

The immediate passage and affectivity of the proposed bill are requested.

Aiea ant
EMMI A. DE JESUS |. BROSAS

Gabriela Women's Party. fabriela Women's Party


Republic of the Philippines
Congress of the Philippines
Metro Manila

Seventeenth Congress
First Regular Session

Vd
House Bill No. 37

INTRODUCED BY EMMI A. DE JESUS and ARLENE D. BROSAS.

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
SECTION 1. RAPE: WHEN AND HOW COMMITTED. -RAPE IS COMMITTED:

41) 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

c) 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-B. Penalties. — Rape [under paragrapht ef 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 pérpetua 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 reciusion 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:

asce wre a ative-by-c nity 9

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;

ted-by_any member ef the Ammed F: ¥-the Philippines of para-

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.

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

Approved,