June 24, 2010
Understanding the Rape Law, ver.2
The Anti-Rape Law of 1997 or Republic Act No. 8353 is a law that expands the definition of rape from being a crime against chastity to a crime against persons. Atty. Clara Rita “Claire” Padilla, Executive Director of EnGenderights, a legal NGO that advances women’s rights, talks about this amendment in the rape law and other related laws and how they impact women.
What is the difference now that rape has been defined as a crime against persons?
The old rape law defined rape as a crime against chastity. It was a direct translation form the old Spanish Penal Code and was outdated in the sense that it defined rape as a crime against chastity. Chastity is a sexist standard which categorizes women to either being “chaste” (clean; a “good” woman) or unchaste (dirty; a “bad” woman). Hence, it perpetuates discrimination against women.
With the change in law defining rape as crimes against persons, it recognizes the crime against the person itself—as abuse to a woman’s human’s rights , a violation against the very person’s right to life, security, health. The new definition also works towards the non-judgemental, gender-sensitive, and successful prosecution of all women survivors of rape---whether they have had previous sexual relations, they are engaged in prostitution, they are married or single, or they are from rural or urban communities.
The circumstances of the rape were also expanded to include use of threat, by means of fraudulent machination or grave abuse of authority or if the offended party is demented.
Also, the definition included violation by insertion of foreign objects / instruments in the oral or anal orifice, not just penile penetration, which is classified as “rape by sexual assault”. However, there is a lower penalty or punishment for rape by sexual assault.
You said that there is a lower punishment for rape by sexual assault, what is the punishment for rape by sexual assault and how does it compare to rape?
Rape by sexual assault is punished by prision mayor with a prison term of 6 years and 1 day – 12 years while rape is punished by reclusion perpetua with a prison term of 20 years 1day – 40 years.
What impact does this have for women who feel that they have been victims of date rape?
As long as there is force, intimidation or threat, then it may be classified as rape. There were several cases where the women were brought to motels or a hotel room by using different types of methods to mislead the women, e.g, one woman was made to believe by the man that there was a party at the hotel room, one man pretended he was too drunk to go home and told her woman companion that he’d like to “sleep” in the motel first, one young domestic helper was brought to a motel without her knowing that the placed she was brought to was a motel. When they got inside the hotel room or motel, they were forcibly raped.
As some women don’t want to file cases because of fear that it will tarnish their reputation, what protection does the law offer her in terms of confidentiality?
Confidentiality is actually tackled in RA 8505, which provides that the names and personal circumstances of the complainant that would lead to recognizing the complainant’s identities should be kept confidential by the police officer, prosecutor or the court. However, this confidentiality rule is not mandatory because the law only uses “may order” in the non-disclosure. In practice, the name of the complainant still appears in the medico-legal report and in the decision itself.
Since RA 8353 no longer defines rape as a crime of chastity, does this now recognize marital rape as a crime?
Yes, however, there is a specific clause that stipulates that if the perpetrator is the husband and the wife decides to forgive him, then all charges will be dropped or the penalty will be extinguished. In reality, many wives still do not file complaints for rape against their husbands. Some men even batter their wives if they refuse to have sex with them.
If one would like to file a case of rape, what are the steps involved and what processes would she have to go through?
A survivor of rape can go to the police who will then give her a referral form to go to the medico-legal for an examination. Ideally, she should get her examination within 24 hours. She should not take a bath between the time of the rape and the time of filing of a complaint because it may destroy evidence. She should bring her soiled clothes and other garments to be entered as evidence.
The medico-legal will take a swab of the mouth and the genital area and will check for injuries and bruises. She may also examine the fingernails to see if there are skin sediments of the perpetrator under the fingernails in case the woman scratched the perpetrator.
After that, the police will take a sworn statement from the complainant which she should file with the Prosecutor’s Office. A preliminary investigation will be done to establish probable cause. If probable cause is established, a warrant of arrest will be issued by the court and a trial will ensue.
You mentioned ‘she’ when speaking about the medico-legal, is there a provision in the law that stipulates that the legal officers attending to the rape case be female?
Yes, according to RA 8505 known as the Rape Victim Assistance and Protection Act of 1998, the police officer, the medico-legal, and the prosecutor should all be female. The judge may or may not be female, but the case will be assigned to Family Courts where the judges should be trained on gender-based violence.
However, it is not an assurance that the women on the case will empathize with the complainant. In the case of Nicole, it was the women Court of Appeals justices who acquitted Smith. The police, medico-legal, prosecutors, judges, justices should really undergo intensive trainings on gender-based violence.
For more information, please log on to the EnGendeRights website:www.engenderights.org or http://jlp-law.com
Ana Santos is a freelance journalist whose area of interest is sexual health and armed conflict in Mindanao. She is also the founder and editorial director of SexAndSensibilities.com, a website that pushes the envelope on the understanding of sexual reproductive health by making it sexy and sassy.
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