Final Paper on Gender and the Law

Reassessing R.A. 8353, R.A. 8505 and Its Rules and Regulations

By:
Coleen C. Bunao
13 June 2018

 Reassessing R.A. 8353, R.A. 8505 and Its Rules and Regulations

Republic Act 8353, otherwise known as the “Anti-Rape Law of 1997”, amended Article
335 of the Revised Penal Code of the Philippines – the provision on rape, expanding its
definition and reclassifying it from a “crime against chastity” to a “crime against persons”. 1 This
means that rape can now be committed against males, and that rape is no longer confined to
committing sexual violence on the vagina of a woman.2 It also introduced the concept of rape by
“sexual assault” otherwise known as “instrument or object rape”, 3 and recognized, albeit
impliedly, marital rape.4 Both concepts are, like the introduction of “gender-free” or
“homosexual rape”5 as stated above, somehow considered progressive in terms of how
Philippine laws have been authored and enacted.

Republic Act 8505, otherwise known as the “Rape Victim Assistance and Protection Act
of 1998”, on the other hand, was enacted to establish and operate a rape crisis center in every
province and city that shall protect and assist rape survivors in the litigation of their cases in their
recovery.6 The main goal of the statute was to provide rape survivors with protection and
assistance as they recover from their plight. 7 It was enacted to work side by side with the
amendment of the rape law in hopes of providing the rape survivors with more access to legal
assistance and medical treatment.

1 An ActExpanding the Definition of the Crime Of Rape, Reclassifying the Same as a Crime Against Persons,
Amending for the Purpose Act No. 3815, as Amended, Otherwise Known as the Revised Penal Code, and for Other
Purposes [The Anti-Rape Law of 1997], R.A. 8353, (1997).
2 LEONOR D. BOADO, NOTES AND CASES ON THE REVISED PENAL CODE, 743 (2018).
3 Id.
4 Philippine e-Legal Forum, The Anti Rape Law of 1997, available at https://jlp-law.com/blog/anti-rape-law-1997-
republic-act-8353/ (last accessed June 12, 2018).
5 BOADO, supra note 2.
6National Economic Development Authority, Approving the Implementing Rules and Regulations (IRR) of
Republic Act (RA) 8505, Providing Assistance and Protection for Rape Victims, Establishing for the Purposes, A
Rape Crisis Center in Every Province and City, Resolution No. 1, Series of 2002 (Feb. 7, 2002).
7 An Act Providing Assistance and Protection for Rape Victims, Establishing for the Purpose A Rape Crisis Center in
Every Province and City, Authorizing the Appropriation of Funds Therefor, and for Other Purposes [Rape Victim
Assistance and Protection Act of 1998], R.A. 8505 (1998).

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 These two statutes, side by side, are proof of how the Philippines is trying to abide by its
obligations under the Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW). Since rape is a crime perpetuated mostly against women, the new rape law
which amended that under the Revised Penal Code, alongside the statute that seeks to protect and
help rape survivors recover, do seem like good law that falls within the ambit of the purpose of
the convention. However, there are still some things that need to be developed further or
enhanced.

Under the amended rape law, the crime of rape is defined as having carnal knowledge of
a woman under several circumstances which include the use of force, threat or intimidation,
grave abuse of authority or when the offended party is deprived of reason.

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;
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.
(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.8

As stated earlier, while the inclusion or acknowledgment of male rape and rape by object are
progressive, the law still lacks the main issue that needs to be addressed in the crime of rape –
consent. A reading of the law may seem to imply that lack of consent is an element in the crime
of rape, especially under paragraph b of subsection one, which uses the terms deprived of reason
or otherwise unconscious, but a study of the statute shows that such terms do not imply the lack
of consent. Deprived of reason under this paragraph does not include lack of consent due to

8 The Anti-Rape Law of 1997, § 2.

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intoxication (either by alcohol or prohibited or controlled substances), which practically deprives
one of reason to agree or disagree to anything. The whole subsection does not even contemplate
consent.

The definition of how rape is committed according to our present law is limited to the
following circumstances stated therein – if there is carnal knowledge of a woman through force,
threat, or intimidation, which again, does not contemplate or even imply the lack of consent.
Under this paragraph, rape is committed if:
1. the offender uses force (there must be physical struggle9 ), threatens the victim, or
intimidates (includes the moral kind10, and as long as it produces fear11 ) the victim. The
crime is grounded on the presence of these three factors, not on the fact that these three
factors take away the right of the victim to consent or to say yes with enthusiasm;
2. the offended party is deprived of reason, meaning, mentally challenged, or a “mental
retardate12,” insane13 , an imbecile14, or mentally abnormal or deficient15, or is otherwise
unconscious like when the offended party was asleep.16 Similar to the first paragraph,
these grounds are limited to the following circumstances mentioned. Although some
authors and jurisprudence acknowledge that the victim has no will17 under these
circumstances, consent is but a concept mentioned, neither implied or applied in such
cases. The mental deprivation or unconsciousness of the survivor is still the material fact
that the prosecution must prove in order to convict the offender;

9 LUIS B. REYES, THE REVISED PENAL CODE BOOK TWO, 561 (2012).
10 BOADO, supra note 2, at 752.
11 REYES, supra note 8, at 562.
12 People v. Magabo, G.R. No. 138471, January 23, 2001.
13 People v. Layson, C.A., 37 O.G. 318.
14 People v. Nava, C.A., 40 O.G. 4237.
15 People v. Daing, C.A., 49 O.G. 2331.
16 People v. Caballero, 61 Phil. 900.
17 REYES, supra note 8, at 564.

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 3. by means of fraudulent machination or grave abuse of authority, meaning when the
offender has moral ascendency or influence over the victim as in the case of rape
committed by fathers against daughters, or step-fathers against their step-daughters.
Similar to the first two paragraphs, these circumstances are grounded on the fact that the
offenders have some kind of influence or power over the survivors. Once again, the
gravamen of the offense does not include the lack of consent of the survivor; and
4. when the offended party is under 12 or demented, meaning when the survivor is a child
or child-like. It does not involve consent but the physical or mental age of a child or
person.
Although more defined than the previous provision it amended, the crime of rape in the
Philippines still does not involve consent as the most important or at the very least, the most
basic element in its perpetration. While providing women with more assistance, and trying to
better the previous law so as to comply with Article 2 of the Convention on the Elimination of
All Forms of Discrimination Against Women, which states:

Article 2. States Parties condemn discrimination against women in all its forms,
agree to pursue by all appropriate means and without delay a policy of
eliminating discrimination against women and, to this end, undertake:
(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;
(c) To establish legal protection of the rights of women on an equal basis
with men and to ensure through competent national tribunals and other
public institutions the effective protection of women against any act of
discrimination;
(d) To refrain from engaging in any act or practice of discrimination against
women and to ensure that public authorities and institutions shall act in
conformity with this obligation;
(e) To take all appropriate measures to eliminate discrimination against
women by any person, organization or enterprise;

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 (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.18

The lack of consent as the center of the crime of rape still goes to show that the Philippines still
has a long way to go. As mentioned by former Senator Miriam Defensor-Santiago in her
explanatory note on Senate Bill No. 2462, which seeks to amend Republic Act 8353,

the Committee on the Elimination of Discrimination against Women, established

under the United Nations Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW), Article 17 emphasized that rape
violates a woman's right to personal security and bodily integrity and that lack of
consent is its essential element.19

As can be gleaned from Article 17 of the CEDAW, the lack of consent alone is violative of the
rights of women. It is but only necessary that consent be at the forefront of the crime of rape if
we are to abide by our obligations to the United Nations, or at the very least, fight for and respect
one of the most basic rights of women – to be secure in their body. This alone will be a great step
to eliminating discrimination against women, especially those who have to fight harder, relive, or
go the extra mile just to fight for their integrity. Making the lack of consent the gravamen of the
offense of rape will make it easier for survivors to press charges against their offenders as the
evidentiary rules will definitely have to be changed accordingly as well. From proving all current
elements such as force, mental depravity, or grave abuse of authority, the lack of consent alone
will be enough to put an offender behind bars, something survivors rarely see. But most
importantly, putting the lack of consent at the center of the crime would eliminate the disparity
between women and men, the powerful and the vulnerable, and the rich and poor since only one
thing will matter – whether or not the survivor agreed, with no apprehensions or influence
whatsoever, to commit the sexual act. It may be a he said, she said trial but it will make things

18U.N. Convention on the Elimination of All Forms of Discrimination against Women, adopted December 18,
1979, 1249 U.N.T.S. 13 [hereinafter CEDAW].
19 S.B. No. 2462, 16th Cong., 2nd Reg. Sess. (2014).

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easier for the survivor since they would not have to go through so many other things just to prove
that they were violated by any of the current circumstances provided by the law. The act of being
violated alone, of being penetrated or used without the consent of the survivor, will be enough to
put their offender in jail. This will not only promote the right of the more vulnerable groups20,
but it will also encourage other survivors to come forward knowing that it will be easier for them
to get justice for what they had gone through.

Apart from the need to include the lack of consent in our current rape law, the provision
on pardon, or more commonly known as the “Forgiveness Clause,21” must be deleted. Under our
current rape law, forgiveness by the offended party may absolve the offender from the crime.
Article 266-C of the Revised Penal Code, amended by R.A. 8353 states:

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. 22

While the first half of the first sentence of the second paragraph should be applauded for
recognizing marital rape, the previous paragraph and the second half of the second paragraph
must be deleted. The concept of being absolved from such a heinous crime due to marriage or
forgiveness is rudimentary. It only promotes survivors, women especially, as second class
citizens, subordinate to their offenders, needing marriage to save them from the stigma of being
violated, absolving the offender at the same time. It takes away the power of the women to seek
justice for being violated, especially in a country where being raped is much more shameful than
raping. Although the act of forgiving is an important aspect in the Philippines, given that the

20Philippine Commission on Women, Strengthening the Provisions of R.A. 8353: Amending the Anti-Rape Law,
available at http://www.pcw.gov.ph/wpla/amending-anti-rape-law (last accessed June 13, 2018).
21 Id.
22 The Anti-Rape Law of 1997, § 2.

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country is a dominantly Catholic country, forgiveness must be left out of the crime, and be
respected as something personal. It should not be considered as a means of absolving the
offender from their crime, seeing that the crime of rape is not only heinous but violent. The law
must not pave the way for these offenders to get off that easily.

As for R.A. 8505, or the Rape Victim Assistance and Protection Act of 1998, much is also
needed to be done. Since its enactment in 1998, little to zero of its provisions are to be seen.
There are currently no known rape crisis centers in the Philippines23 despite the statute requiring
the establishment of such.24 Even the Women’s Crisis Center located at East Avenue Medical
Center, which is supposed to cater to and assist women in need of help arising from sexual or
domestic violence, is no longer operational for lack of funding.25 Doctors and other health
workers are not trained to handle rape cases.26 There is no uniform medical examination
procedures for rape survivors.27 Only government hospitals cater to medico-legal services for
rape survivors, and this fact is not widely known, even to the middle class.28 Most of the
provisions of the Rape Victim Assistance and Protection Act of 1998 has gone unheeded.

Despite the enactment of the said statute regarding rendering assistance to rape survivors,
no progress has been made. Other countries like the United States of America have at least rape
testing kits made available to their hospitals, and some trained nurses and staff that deal with

23The author of the paper has tried searching for a rape crisis center in Metro Manila, and eventually, in other
provinces, to no avail.
24 Rape Victim Assistance And Protection Act of 1998, § 3.
25The author of the paper called the Women’s Crisis Center at East Avenue Hospital sometime in February 2016
only to be informed that they are no longer operational in the hospital.
26 Personal experience of the author at St. Luke’s Quezon City Emergency Room on February 15, 2016.
27Personal experience of the author at Healthway Medical located at the 5th floor of SM The Block on February 17,
2016. The attending doctor merely conducted several STD tests and the HIV/AIDS test but kept no record of what
the author had disclosed to her regarding the attack.
28Personal experience of the author. The parents of the author had been bringing the author to St. Luke’s since she
was a child prompting the author to seek medical assistance from the said hospital, only to find out later on that only
government or public hospitals had such services.

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rape survivors.29 However, neither of these are available or easily accessible in the Philippines.
Even information as to where a rape survivor must go to seek help is scant. Making sure that the
provisions of R.A. 8505 are complied with will also be a step towards ensuring the rights of
women are respected and valued. Some basic provisions of the statute that should be enacted at
the soonest possible time are the:
1. development of a rape test kit and the standard operating procedure for conducting the
test and dealing with survivors;
2. establishing rape crisis centers, or at the very least, rape departments in most hospitals,
whether public or private;
3. training of doctors and other health workers of the standard operating procedure in this
situation, and their placement and availability in most hospitals; and
4. dissemination of information to the public to help them know help is available.

It is quite difficult to implement all the provisions of R.A. 8505 but given that this has
been enacted almost two decades ago, the bare minimum should have at least been in place
already. The suggestions of the author, in her opinion, are the most basic obligations the country
should comply with in order to respect and comply with the basic rights of women according to
the CEDAW.

While the Philippines has made progress on achieving equality between men and women,
and eliminating forms of discrimination against women through the passage of certain laws, it
still has a long way to go compared to other countries. One way of stepping up would be the
amendment of the current rape law to include lack of consent as the primary element of the
crime, and ensuring that the provisions on rendering assistance to survivors are finally complied
with and up to standard.

29Rape, Abuse and Incest National Network, What is a Rape Kit?, available at https://www.rainn.org/articles/rape-
kit (last accessed June 13, 2018).

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