POLYTECHNIC UNIVERSITY OF THE PHILIPPINES

Philippine Constitution
October 2019

Term Paper:

Republic Act No. 8353, Article 266-C

Section C: Marriage

As A Cage

Mercado, Rheissette Lei C

Bachelor in Public Administration, Section 1, 1st Year

Atty. Paul Braga

Instructor
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Philippine Constitution
October 2019

Introduction

The Philippines has made large strides to empower and protect those who need

the most protection such as children and women such as the Magna Carta of women

which is republic act no. 9710 which is a human’s rights law which aims to eliminate

discrimination against women by recognizing, protecting, fulfilling, and promoting the

rights of Filipino women, especially those in the marginalized sector. There is also the

existence of republic act no. 7610 which is an act providing for stronger deterrence and

special protection against child abuse, exploitation and discrimination providing penalties

for its violation.

Yet with all these strides there still remain a handful of laws which are outdated

and sometimes even wrong to modern ears. The topic that this paper will be discussing

is with regards to the controversial topic of rape. Rape is a topic of many debates and is

an issue that is still prevalent today and the focus of this paper would be marital rape or

spousal rape as in there are still several countries which allows marital/spousal rape, an

example of a few of these countries are Ghana, India, Indonesia, Nigeria, Singapore, and

the Philippines.

Throughout much of history, rape in marriage was not a crime. Most cultures

subscribed to the idea of the existence of “conjugal rights” to sexual intercourse with one’s

spouse furthermore legal systems generally accepted that these “conjugal rights” could

be taken by force well into the 20th century.

When it comes to the topic of rape in the Philippines, the Anti-Rape Law of 1997

is what comes to mind. It’s an act expanding the definition of rape, reclassifying the same
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Philippine Constitution
October 2019

as a crime against persons, amending for the purpose of the act no. 3815, as amended,

otherwise known as the revised penal code, and for other purposes.

The Anti-Rape Law of 1997

The Republic Act contains the definition of rape which is to say when and how the

crime is committed. It is as follows:

"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.”

The law also encompasses the penalty for the act of rape which is usually reclusion

perpetua but in some cases it’s the death penalty which would leave anyone to
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Philippine Constitution
October 2019

understand how grievous an act it is yet the law would allow it if the perpetrator is the

victim’s spouse. It is under article 266-C where the marital/spousal rape is pardoned.

"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.”

It turns marriage into a sort of cage for the victim. It allows the victim to be with

their perpetrator and would even give the perpetrator a chance to do it again. One would

think that given the harshness of the penalties with non-marital rape that it’s a brash,

grievous, heinous, and unforgivable crime.

The use of language in the article presumes that the offender has the ability to

avoid the consequences he/she has committed given that the victim would forgive the

offender yet back in 2014, the supreme court had to remind husbands that “marriage is

not a license” for them to rape their wives so it implies that many did it for they saw

themselves as safe from the consequences. In a ruling tackling for the first time a marital

rape case, the high court first division affirmed a Court of Appeals decision that in turn

upheld a Cagayan de Oro City Regional Trial Court’s conviction of a man for raping his

wife in 2002, the decision affirmed the man’s conviction on two counts of rape.
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Philippine Constitution
October 2019

“Husbands do not have property rights over their wives’ bodies. Sexual

intercourse, albeit within the realm of marriage, if not consensual is rape,” said the ruling

penned by Associate Justice Bienvenido Reyes.

“Interestingly, no documented case on marital rape has ever reached this Court

until now,” the ruling said. The decision stemmed from a 1999 case filed by a woman who

accused her husband, to whom she had been married for 24 years, of raping her on Oct.

16 and Oct. 17, 1998. In its 41-page ruling, the division said the accused’s contention that

his case was not an ordinary rape case and that the standards of determining the

presence of consent or lack of should be adjusted “failed to muster legal and rational

merit.”

It said that right now rape as a form of sexual violence exists within marriage.

“A man who penetrates his wife without her consent or against her will commits

sexual violence upon her,” the ruling said.

Furthermore, the high court also said the argument of the accused “arbitrarily

discriminates against married rape victims over unmarried rape victims because it

withholds from married women raped by their husbands the penal redress equally granted

by law to all rape victims”

So tying back to the article, though the perpetrator can be pardoned if forgiven yet

it seems to not matter much to the offender as they see their marriage as a gateway to

sexually abuse their wives and is some cases the husbands.

 POLYTECHNIC UNIVERSITY OF THE PHILIPPINES
Philippine Constitution
October 2019

Conclusion

The law may be harsh but it is the law is something that one often looks back into

when discussing the “unfairness” of certain laws yet it cannot be applied in this case as

the unfairness is between victims of the same crime where the only difference is that one

victim’s assailant is their spouse. The law under R.A no. 8353, article 266-C is abhorrent

as it allows the victims to be trapped in a conjugal prison with their assailant while allowing

said victim to assume that their voice will still be heard if they do not wish to forgive their

victim yet it shows from previous cases that their voices are heard yet they remain

unacknowledged as their perpetrator lives without facing the consequences of his crime

which gives them an avenue to repeat the appalling crime. Doing the crime, no matter

who the victim and assailant are, should warrant the proper penalty.