Legal Research

FOR STATUTORY RAPE

and
Drafting a Bill

Submitted by: Jessica O. Fernandez

Introduction:

Statutory rape – is non- forcible sexual activity in which one of the individuals is
below the age of consent to the behavior. Current Philippine laws provide that
sexual intercourse with children below 12 years old is illegal and tentamount to
rape.

Statutory rape and rape are very different crimes. Rape requires face, fear of
other to complete the act of sexual intercourse with someone who you have
known is under 18 years of age.

People of the Philippines

vs.
Hermenigildo Delen y Esco Billa

Facts:
On January 29, 2008 the accused- appellant was charged for qualified rape.
The alleged anime of qualified rape was committed by the accused against AAA
that on or about January 17, 2005 at around 6 o’clock in the morning and within
the jurisdiction of this Honorable Court, the above- named accused, motivated by
lust and lewd designs through force intimidation, did then and there willfully and
feloniously have carnal knowledge on one AAA a 12-year-old minor, against the
latter’s will.
That the aggravating circumstances of minority and relationship, the victim
being a 12-year-old minor and daughter of the accused are attendant in the
commission of the offense.
Issue: Whether or not the accused should be convicted of qualified rape.

Ruling:
Yes, under Article 266B of the Revised Penal Code the crime of rape is qualified
when the victim is under eighteen 18 years of age and the offender is a parent
ascendant, stepparent, guardian relative by consanguinity or affinity within the
third civil degree or the cannon law spouses of the victim and her relationship,
being the father of the victim, the accused- appellant qualified the charge of rape.

II. Raising the Age of Sexual Consent

Statutory rape refers to a sexual relation involving a person below the legal age of
sexual consent. It is punishable under the law precisely because the persons of
such ages are considered too young to intelligently decide for themselves terms
of engaging in any form of sexual intercourse with another person who is usually
older.
ARTICLE 266-A of the RPC as amended by R.A No. 8353 sets the age for
determining statutory rape at below 12 years old. This means automatically
regarded as rape, even if the minor consented or appeared to have voluntarily
engaged in the sexual act. However, once a child reaches the exact age of 12, he
or she is legally deemed mature enough to give sexual consent to another person.
Instead of protecting children, the law leaves them vulnerable to sexual predators
especially those who are significantly older than them and who may take
advantage of their impressionability. Moreover, it has been found by the studies
that earlier initiation of sexual intercourse is strongly associated with sexual
transmitted infections, increased risk of cervical cancer, pregnancy, depression
and suicide, and sexual abuse.
The Philippines has the lowest age of sexual consent in Southeast Asia. Other
countries like Brunei, East Timor, Indonesia, Malaysia, Singapore, and Taiwan the
age of consent and Vietnam set it at 13 years old.

What are the existing laws or policy issuance related to the Issue?
National Laws,
Jurisprudence, and Policies
Article II Section 11 of the 1987 Philippine Constitution provides that the State
values the dignity of every human person and guarantees full respect for human
rights. Further Article Section 14 of the same Article provides that the State
recognizes the role of women in nation- building and shall ensure the
fundamental equality before the law of women and men.

Further amend the ARTICLE 266-A of the RPC as amended by R.A 8353
Article 266-A. Rape, when and How committed-rape is committed by any person
who shall commit any of the following acts against any person WITHOUT HIS/HER
CONSENT, whether or not injuries were suffered:

a) When the offender inserts his penis into the victims inner or outer vaginal
labia, mouth or anal orifice.
b) When the offender inserts any instrument or object including a finger, into
the victims inner or outer vaginal labia or anal orifice
Exceptions
Based on the bill, consensual non-abusive, and non- exploitative sexual activity
with minor below 16 years old will not be considered statutory rape in the
following conditions;

 The parties are 14 years old or above, and the age difference does not
exceed 4 years
 Where the sexual activity involves a minor below 14, the age difference
does not exceed 3 years.
Statutory rape can still be claimed for someone over 16 years of age if the victim
has a physical, mental or psychological disability or condition that renders him or
her unable to fully understand consent or the consequences of any sexual activity.

The Anti- Rape Law of 1997 also provides that should a rapist and the victim get
married, then the rapist and the victim get married, the rapist would be cleared of
criminal action. The newly approved bill added a provision that subsequent
marriage would not extinguish criminal action for rape nor the penalty imposed.

Elements of Qualified Rape Duly Proved

The elements of rape as provided in the Revised Penal Code RPC are as follows;
1. By any man who shall have carnal knowledge of a woman under the
following circumstances;
a. Through the force, threat or intimidation;
b. When the offended party is deprived of reason or is otherwise
unconscious;
c. By means of fraudulent machination or grave abuse of authority;
d. When the offended party is under twelve years of age or is demented
even though none of the circumstances mentioned above be present
And one of the aggravating circumstances that would qualify the crime and raise
the penalty to death
Penalties
Art.266-B Penalties
The death penalty shall also be imposed if the crime of rape is committed with
any of the following
Aggravating/ qualifying circumstances
1. When the victim is under eighteen years of age and the offender is a
parent, ascendant step parent, guardian, relative by consanguinity or
affinity within the third civil degree, or the common law spouse of the
parent of the victim.
Since all the elements of qualified rape were dully alleged and proved during the
trial, the penalty should be death according to Article 266-B of the RPC. However,
with the effectivity of Republic Act No. 9346, entitled An Act Prohibiting the
Imposition of Death Penalty in the Philippines, The imposition of the supreme
penalty of death has been prohibited. Pursuant to Section 2 of the Act, the
penalty to be meted out should be reclusion Perpetua without eligibility for
parole.

The trial court correctly awarded Php 75,000.00 as civil indemnity, but the
amount of moral and exemplary damages awarded has to be modified consonant
to current jurisprudence. Civil indemnity, which is actually in the nature of actual
or compensatory damages, is mandatory upon the finding of the fact of rape.
Moral damages are automatically granted in a rape case without need of further
proof other than the fact of its commission, for it is assumed that rape victim has
actually suffered moral damages are automatically granted in rape case without
the need of further proof of any other than the fact of its commission, for it is
assumed that a rape victim has actually suffered moral injuries entitling her to
such an award. According to prevailing jurisprudence, the amount of moral
damages should be Php 75,000.00 Likewise, exemplary damages should have
been Php 30,000.00 and this is awarded in order to serve as public example and
to protect from sexual abuse.
HOUSE BILL NO. 5004
 _____________________________________________________________
Introduced by Honorable Jessica Onida Fernandez
_____________________________________________________________
Explanatory Note
The establishment of a minimum age of sexual consent is an important
component of the protection of children from sexual abuse. Children below such
are considered without the power to resist and to give their genuine and fully
informed consent to any activity. As such, the act of engaging in sexual activity
with children below such age must be considered unlawful.

Article 34 of the Convention on the Rights of a Child obliges State parties to take
all measures to protect children from all the forms of sexual exploitation and
sexual abuse including coercion to engage in any lawful sexual activity with
children below of the age of sexual consent.

The Philippines in various laws set minimum age for sexual consent.
Sexual intercourse with children below 12 years old is illegal and tantamount to
rape. In addition, sexual activity with a person below 18 years of age of age may
constitute child abuse and exploitation.

UNICEF found that the Philippines age of consent is not compliant with
international average and that significant reform or development of new laws is
required. Based on survey, most countries have an age of consent fixed at 16
years of age.

Pursuant to the Obligation of the Philippines under the Convention on the Rights
of the Child and to comply with international average, this bill amends the
provisions of the Revised Penal Code as well sections of Republic Act No.7610 by
increasing the age for determining statutory rape and other acts of sexual abuse
and exploitation from 12 years old and to 16 years old.

The immediate passage and effectivity of the proposed bill are requested

Jessica Fernandez
JESSICA FERNANDEZ
 HOUSE BILL NO. 5004
____________________________________________________________
Introduced by Honorable Jessica Onida Fernandez
_____________________________________________________________
AN ACT INCREASING THE AGE FOR DETERMINING
STATUTORY RAPE AND OTHER ACTS OF SEXUAL ABUSE AND EXPLOITATION TO
PROVIDE STRONGER PROTECTION FOR CHILDREN AND AMENDING FOR THIS
PUPOSE ACT NO.3815, AS AMENDED, ALSO KNOWN AS THE REVISED PENAL
CODE AND REPUBLIC ACT NO. 7610, ALSO KNOWN AS THE SPECIAL PROTECTION
OF CHILDREN AGAINST ABUSE, EXPLOITATION AND DISCRIMINATION ACT.

SECTION 1. Title – This act shall be known as the Age of Statutory Rape and Other
Sexual Abuse Act.

SEC. 2 The Revised Penal Code, Article 266-A is hereby amended to read as
follows;

Article 266- A Rape – When and How Committed Rape is committed

1. By any man who shall have carnal knowledge of a woman under any of the
following circumstances;

d. When the offended party is under SIXTEEN | Twelve| years of age,

committed by any person in public authority, priest, home servant,
domestic, guardian, teacher, or any person who, in any capacity shall be
entrusted with the education or custody of the woman seduced, shall be
punished by prison in its minimum and medium periods.
SEC. 4 The revised Penal Code, Article 338, is hereby amended to read as follows;

Article 338 Simple Seduction- The seduction of a woman who is

single or a widow of a good reputation, | over| SIXTEEN |16| twelve| but under
eighteen years of age, committed by means of deceit shall be punished by arresto
mayor.

SEC.5 The Penal Code, Article 342, is hereby amended to read as follows:
Art. 342 Forcible abduction – The abduction of any woman against her will and
lewd designs shall be punished by the penalty of prison correctional in its
minimum and medium periods.

SEC.7 Republic Act No. 7610, otherwise known as the Special Protection of
Children against Abuse Exploitation and Discriminatory Act, Section 5 is to hereby
amended to read as follows;

Section 5. Child Prostitution and Other Sexual Abuse – Children, whether

male or female, who for money, profit or any other consideration or due to the
coercion or influence of any adult, syndicate or group indulge in sexual
intercourse or lasciviousness conduct, are deemed to be children exploited in
prostitution and other sexual abuse.
b. Those who commit the act of sexual intercourse or lascivious conduct with a
child exploited in prostitution or subject to the other sexual abuse; Provided, that
when the victims is under SIXTEEN|16|twelve|12| years of age shall be reclusion
temporal in its medium period and

Section 8. Republic Act No. 7610, Section 10, is hereby amended to read as
follows;
Section 10. Other Acts of Neglect, Abuse Cruelty or Exploitations and Other
Conditions Prejudicial to Childs Development.

b. Any person who shall keep or have in his company a minor, SIXTEEN |16|
twelve|12
years or under or who in ten years or more junior in any public or private place
hotel, motel beer joint, discotheque, cabaret, pension house sauna or massage
parlor, beach and or other tourist resort or similar places shall suffer the penalty
of prison mayor in its maximum period and a fine of not less than Fifty thousand
pesos |50,000.00| provided, that this provision shall not apply to any person who
is related within the fourth degree of consanguinity or affinity or any bound
recognized by law, local custom and tradition or acts in the performance of a
social, moral or legal duty.

SEC.9 Repeating Clause - Republic Act No. 7610 Section 5 b and Section 10 b, Act
No. 3815 Articles 337, 338,339,340,342 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 10. Separability Clause – if any provision of this Act is held invalid or
unconditional, the remainder of the Act or the provision not otherwise affected
shall remain valid and subsisting.

SEC.11 Effective Clause – This Act shall take effect fifteen days after its publication
in at least to newspapers of general circulation.

Approved
 Republic Act 8353: The Anti-Rape Law of 1997

“AN ACT EXPANDING 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 THE PURPOSES”

Section 1. Short Title. – This Act shall be known as “The Anti-Rape Law of 1997.”

Sec. 2. Rape as a Crime Against Persons. – The crime of rape shall hereafter be
classified as a Crime Against Persons under Title Eight of Act No. 3815, as
amended, otherwise known as the Revised Penal Code. Accordingly, there shall be
incorporated into Title Eight of the same Code a new chapter to be known as
Chapter Three on Rape, to read as follows:

“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.

Article 266-B. Penalty. – Rape under paragraph 1 of 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 perpetua to death.

When by reason or on the occasion of the rape, the victim has become insane, the
penalty shall become reclusion 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:

l) When the victim is under eighteen (18) years of age and the offender is a parent,
ascendant, step-parent, guardian, relative by consanguinity or affinity within the third
civil degree, or the common-law spouse 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 the Human Immuno-Deficiency
Virus (HIV)/Acquired Immune Deficiency Syndrome (AIDS) or any other sexually
transmissible disease and the virus or disease is transmitted to the victim;

7) When committed by any member of the Armed Forces of the Philippines or para-
military 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;

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; and

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.
Rape under paragraph 2 of the next preceding article shall be punished by prision
mayor.

Whenever the rape is committed with the use of a deadly weapon or by two or more
persons, the penalty shall be prision mayor to reclusion temporal.

When by reason or on the occasion of the rape, the victim has become insane, the
penalty shall be reclusion temporal.

When the rape is attempted and a homicide is committed by reason or on the

occasion thereof, the penalty shall be reclusion temporal to reclusion perpetua.

When by reason or on the occasion of the rape, homicide is committed, the

penalty shall be reclusion perpetua.

Reclusion temporal shall be imposed if the rape is committed with any of the ten
aggravating/ qualifying circumstances mentioned in this article.