Rape and the misunderstood law
THE CORNER ORACLE - Andrew J. Masigan (The Philippine Star) - July 31, 2019 - 12:00am

In October 2017, Hollywood producer Harvey Weinstein was accused of sexual assault by several A-list female celebrities. The scandal gave birth to the “Me Too Movement,” a global campaign intended to bring attention to the prevalence of sexual harassment and sexual assault. “Me Too” was a global phenomenon that resulted in sweeping reforms relating to gender equality in countries like Sweden, Canada, Spain and Australia. Unfortunately, the movement did not gain traction in the Philippines.

Local statistics on rape and abuse are worrying. In 2018, records from the Philippine National Police (PNP) show that 14,116 cases of physical abuse were reported, 1,656 cases of rape were filed and 2,020 acts of lasciviousness were put on docket. For its part, the Department of Social Welfare and Development (DSWD) reported 804 cases of child rape and 141 cases of child exploitation.

While the numbers are appalling, advocates of women’s and children’s rights claim they are grossly understated. Due to shame, fear of stigma and worry of retribution, the majority of cases remain unreported. The United Nations approximates that only one out of ten incidents of abuse are reported in countries with weak justice systems. Hence, the real number in the Philippines could be a multiple of ten of whatever the PNP and DSWD declares.

Earlier this month, I attended a “Fika” (a Swedish tradition of taking coffee and sweets over conversation) hosted by Swedish Ambassador Harald Fries in his home. The Swedish embassy along with the Office of the Vice President (OVP), United Nations Women and NGOs Spark and Empower, joined forces to mount a campaign called “Respeto Naman”. The purpose of the group is to bring attention to the widespread occurrence of rape and abuse, to empower victims with legal options and pressure the legislature to come up with more stringent laws for sexual crimes.

The advocates of “Respeto Naman” lament how our laws put the burden of proof on the victims and how free legal support is scarcely available. They also decry the misogynistic attitude of most judges and law enforcers toward rape. All these dissuade victims from reporting the crime thereby allowing perpetrators to go scot free. All these undermine the rights of women and children, they claim.

I looked at the matter and found that the problem does not lay on our laws but on the lack of understanding of it.

Since the mid-thirties, the law governing rape was the 1936 Revised Penal Code. It was amended in 1997, albeit without an accompanying information campaign.

The difference between the two versions of the law is that the 1936 Revised Penal Code classified rape and sexual abuse as crimes against chastity. The 1997 amendment reclassified them as crimes against persons. What’s the difference?

As a crime against chastity, rape and sexual abuse is categorized as merely a private crime at the same level as concubinage and adultery. Not only does it carry a light punishment, it requires the victims themselves to initiate the complaint before the courts. This prevents children, those economically dependent and those who fear physical retaliation from their perpetrators from reporting the crime.

Under the principle of crime against chastity, it is not uncommon for a rape victim to be deemed the guilty party for dressing proactively or being in the wrong place at the wrong time. In addition, acts of forgiveness or any act of kindness extended by the victim toward  the perpetrator could be deemed an absolution of the offense. This, in many cases, absolves the offender if he is a husband, father or relative.

The cavalier attitude of some people toward  sexual crimes is largely due to the cues taken from the 1937 statute. It depicts rape and abuse as non-grievous crimes.

Things changed in 1997 when Republic Act 8353 expanded the definition of rape. It was classified as a crime against persons and as such, was categorized in the same strata as homicide and kidnapping.

With this new classification, sexual crimes such as forcible intercourse, sodomy, fondling and incest were made punishable by either life imprisonment, reclusion perpetua (with possibility for parole after 40 years) or prision mayor ( six to 12 years), depending on the circumstances. Moreover, the victim need not be the plaintiff but any condoling party could bring the perpetrator to court. This means, friends and relatives can sue in behalf of a child or a woman unable to file a case on her own.

The amendment further defined rape as sexual act done by force, threat, intimidation or abuse of authority. It is also considered rape if the victim was unconscious. This new definition shifts the burden of proof to the perpetrator.

Sexual contact with anyone under 12 years old, consensual or not, is automatically considered rape and punishable by law.

Further, the act of inserting one’s penis or foreign object into an orifice of another is considered rape too. Thus, men can now be victims with the same legal rights as women and children.

While the law is sufficient, judges and law enforcers across the land still act and/or decided on cases based on the 1937 Penal Code due to ignorance. This is the tragedy of it all. Hence, it is incumbent upon the Department of Justice to reiterate the new amendments to the rape law in its mandatory continuing legal education program.

Until law enforcers and judges fully understand the new parameters of the anti-rape law, justice will continue to elude victims. Until everyone understands the gravity of sexual abuse, nothing will change.

We are fortunate to have a movement like  “Respeto Naman” rally the cause.

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