A HUMAN ISSUE: A GENDER-FOCUSED REEVALUATION OF PHILIPPINE

CIVIL AND CRIMINAL LAWS ON EQUALITY BEFORE THE LAW

A Thesis
Presented to the Faculty of the College of Law
De La Salle University- Manila

In Partial Fulfillment
Of the Requirements for the Degree
Juris Doctor

By:
Lao, Jan Michael Dave S.
Guevarra, Arjuna das Mathews.

13 May 2017
 ii

ACKNOWLEDGEMENTS

To our advisor Atty. Anunciacion G. Ayo, without whom our thesis would not have

been possible, whom we cannot thank enough for critiquing our work which guided us in

the right direction in writing this work: Thank you.

To our panelists Atty. Rene Pilapil, Jr., Atty. Ricardo Sunga III, and Atty. Antonio

Jamon, Jr., whose insights and contributions in improving this paper is incalculable:

Thank you.

To our parents, who, while growing up, instilled the value of equality, fairness, and

respect for all in us, who supported us in our pursuit of the law and for understanding

everything that came with this: Thank you.

To our siblings, who inspired this study and made us realize that different rules

apply to different people, without whom we would have never found the passion to seek

equality among all people: Thank you.

And to our friends, colleagues, and classmates who went through the same journey

with us, who supported us and the goal of this study, and whose contributions are too

many to mention: Thank you.

 Table of Contents

CHAPTER I – INTRODUCTION 1
Background of the Study 1
Objective of the Study 3
Thesis Statement 4
Statement of the Problem 4
Significance of the Study 5
Scope of the Study 5

CHAPTER II – REVIEW OF RELATED LITERATURE 6

Philippine Laws and other related statutes 7
Garcia v. Drilon 13
U.S. cases of unequal treatment of men 16
Domestic abuse cases against men in the United States 18

CHAPTER III – METHODOLOGY 22

CHAPTER IV – LEGAL ANALYSIS 23

State policies regarding gender equality 23
Equal Protection clause 23
Basis for the Protection of Women in Philippine laws 30
Protection of women in International law 33
The New Civil Code of the Philippines and the Family Code 36
Civil Code Provisions 39
Family Code Provisions 46
The Revised Penal Code 50
Rape 51
Qualified, Simple Seduction, and Acts of Lasciviousness 64
Consented and Forcible Abduction 66
Critique on Garcia v. Drilon 69

CHAPTER V – CONCLUSION AND RECOMMENDATION 83

Conclusion 83
Recommendation 83

LIST OF REFERENCES 88
 CHAPTER I - INTRODUCTION

Background of the Study

The Philippine laws governing civil life of the citizens and the penal laws were by

and large adapted from our Spanish conquerors who introduced a patriarchal system of

society. Consequently, these laws we adapted were promulgated during a time when there

were definite set of roles for each gender; a time when the inequality between men and

women was more prevalent and encompassing. Centuries since then, however, a study of

the World Economic Forum shows that the Philippines ranked 7th in the world in terms of

gender equality in 2015.1 This means that in terms of economic participation and

opportunity, educational attainment, health & survival, and political empowerment, the

Philippines has one of the smallest gender disparities in the world. Thanks to women’s

movements, increased in numbers of women politicians and educated women in general,

there have been noticeable developments in the protection of women’s rights and the

focused application of the laws regarding the same. Only in recent years, the government

has addressed women’s rights in a plethora of legislative schemes including; workplace

discrimination, domestic violence, sexual harassment and human trafficking.2 Be that as it

may, it is undeniable that there is still a need for further development as there is still a

huge discrepancy between women who have excelled politically, academically, and

1
World Economic Forum, Gender Gap Index 2015. Retrieved May 10, 2017.
2
Iwanaga, Kazuki.Women's Political Participation and Representation in Asia: Obstacles and Challenges.
Copenhagen: Nordic Institute of Asian Studies. p. 243.
 2

financially compared to women who are domestically abused, financially unstable, and

those who are exploited through prostitution and migrant work.3

On the other side of the spectrum, it can easily be demonstrated that throughout our

legal history, men have almost always held the ‘power.’ As an example, the family code

provides that when there is a disagreement between the husband and the wife regarding

the administration and enjoyment of the community property, the husband’s decision shall

prevail, subject to a judicial recourse by the wife.4 There is a reason why there are only

mostly ‘women’s movements’ and virtually no ‘men’s movements.’ The general rule has

always been that men are in charge and the women subservient. Even our Supreme Court

recognized this phenomenon. In Garcia vs. Drilon5, the court stated:

“Traditions subordinating women have a long history rooted in

patriarchy – the institutional rule of men. Women were seen in
virtually all societies to be naturally inferior both physically and
intellectually.”

This created a mindset which pressured men into silence regarding domestic

violence in fear of being thought of as a lesser man.6 This social stigma has perhaps

resulted in a near lack of data on domestic violence against men. This may also be

3
Anonuevo, Carlos Antonio Q. (September 2000), Overview of the Gender Situation in the Philippines
4
Executive Order 209-87, The Family Code of the Philippines, Art. 96. The administration and enjoyment
of the community property shall belong to both spouses jointly. In case of disagreement, the husband's
decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed
of within five years from the date of the contract implementing such decision.
5
Garcia v. Drilon, G.R. No.179267, June 25, 2013.
6 Dr. Lupri, E., Dr. Grandin, E. Intimate Partner Abuse against Men.
https://web.archive.org/web/20090104074211/http://www.phac-aspc.gc.ca/ncfv-
cnivf/familyviolence/pdfs/Intimate_Partner.pdf. Retrieved May 10, 2017.
 3

illustrated by the fact that according to Supt. Filemon Porciuncula, chief of the Quezon

City Police District Crime Laboratory, only three men have complained of spousal abuse

for the past ten (10) years, and none of them decided to pursue the case against their

wives.7 The Supreme Court in Drilon made a similar observation, stating:

“On the other hand, no reliable estimates may be obtained on

domestic abuse and violence against men in the Philippines because
incidents thereof are relatively low and, perhaps, because many men
will not even attempt to report the situation.”

Considering that laws should ideally keep pace with the times in order to address

current and real issues that affect people, perhaps it is time to undertake a study of the

continuing relevance of distinctions between men and women in our laws.

Objectives of the Study

This thesis aims to look into and reevaluate provisions of Philippine laws which

treat men and women differently, and evaluate whether there is a basis to retain the

distinction, or to introduce certain changes.

The Philippines has a plethora of laws and jurisprudence that deal with gender.

However, certain provisions in these laws were worded to address facts that may now be

considered antiquated or at least, have drastically decreased in relevance. This study seeks

to assess the decrease in relevance of these distinctions in the law, and in certain cases,

7
Delfin, Claire. Ever heard of battered husbands? Retrieved November 20, 2016.
 4

suggest amendments in order to make them more responsive to the increasingly gender-

neutral environment of the world today.

Thesis Statement

Certain provisions in the Philippines’ civil and criminal laws contain

language that may need to be amended to make them more gender-neutral, in order to

promote equal protection of the laws across genders.

Statement of Problem

The Philippines’ civil and criminal laws were either entirely crafted during

patriarchal times or retain some semblance of gender-insensitivity, despite the marked

improvements in the promotion and awareness of equality among the sexes in the world

today.

Significance of the Study

The findings of this study will redound to the benefit of society considering the

complexity and diversity of contemporary community interaction. It is stated in the

Declaration of State Policies in the Magna Carta of Women that the State recognizes the

effect of economic, political, and sociocultural realities on women’s current condition, and

affirms the role of women in nation building and ensures the equality of women and men.

Meanwhile, recent developments show that men are now susceptible of being victims of

domestic violence. While this risk to men is not as dire as it is to women, certain
 5

provisions of law may have to be reviewed in order to avoid the perception that men

deserve to be treated poorly in the law when they have been shown to equally need its

protection. Similarly, certain provisions regarding the role of the husband in certain

matters need to be reviewed as well in order to encourage the equal treatment of the sexes

in the family. With that being said, a survey and reevaluation of the rationale behind

Philippine laws, from the Revised Penal Code to the Family Code, treating men and

women differently is clearly a worthwhile effort.

Scope of the Study

The study shall evaluate Philippine laws which have a patently different treatment

of men and women, and determine if the rationale behind the difference in treatment are

still justified given current developments.

This study shall be limited to the survey and evaluation Family Code, Civil Code,

Revised Penal Code and an in-depth analysis of the Garcia v. Drilon ruling with respect to

R.A. 9262, insofar as the provisions which favor or discriminate one sex from the other

and critique points made by the Supreme Court.

 CHAPTER II - Review of Related Literature

At the turn of the current decade, human rights are no longer centered largely on food

or livelihood. Similarly, with the rise of social justice movements and civil disobedience

groups, the focus has now somehow shifted to the preservation of human dignity.

Gender studies is one of the dimensions to promote human dignity. It is a field for

interdisciplinary study devoted to gender identity and gendered representation as central

categories of analysis. This field includes women's studies, men's studies and queer

studies.8 The history of gender studies looks at the different perspectives of gender. This

discipline examines the ways in which historical, cultural, and social events shape the role

of gender in different societies. The field of gender studies, while focusing on the

differences between men and women, also looks at sexual differences and less binary

definitions of gender categorization.9

Of the three fields of study, namely women’s studies, men’s studies and queer studies,

men’s studies have been relatively neglected while the other two have most of the

8
https://www.whitman.edu/academics/departments-and-programs/gender-studies, retrieved Nov 23, 2016
9
Gender: A Useful Category of Historical Analysis," American Historical Review 91, No. 5 (December
1986)
 7

attention, this is perhaps due to the widespread perception of men having inordinate social

and economic power10 and that men are not systematically disadvantaged in many ways.

A. Philippine Laws and other related statutes

Constitution and Universal Declaration of Human Rights

The Constitution establishes equality between men and women, such as in Article II

Section 14 where the role of women is recognized in nation-building and mandates

the fundamental equality before the law. This is further reiterated in Article III

Section 1, the Bill of Rights, where the equal protection clause provides that no-one

shall be denied the equal protection of laws, unless the said discrimination or

favorable treatment is justified, as jurisprudence provide.11

Furthermore, as our constitution provides and12 as a member of the United

Nations, the Philippines is bound by the Universal Declaration of Human Rights

which, among other things, declare that all human beings are born free and equal in

dignity and rights (Art. 1), everyone is entitled to all the rights and freedoms set

forth in the said Declaration, without distinction of any kind, including sex (Art. 2),

10
"Literature of the U.S. Men's Movements" Clatterbaugh, Kenneth (2000)
11
Biraogo v. The Philippine Truth Commission of 2010, G.R. No. 192935 & 193036, December 07, 2010
12
The 1987 Constitution, ART. II – Declaration of Principles and State Policies, SECTION 2. The
Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of
international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom,
cooperation, and amity with all nations.
 8

all are equal before the law and are entitled without any discrimination to equal

protection of the law (Art. 7), and men and women are entitled to equal rights as to

marriage, during marriage and at its dissolution (Art. 16[1]).

Family Code and the New Civil Code

As to the matter of custody of children under the Family Code, it is

considered an absolute rule that the mother should be granted such custody if the

child is of tender age, or seven (7) years old and below. Only the most compelling,

uncommon of reasons shall justify her deprivation of parental authority in these

cases.13

As to disagreement over conjugal properties, it is the husband’s decision

which generally prevails in case of disagreement, subject to recourse by the wife.

Revised Penal Code

The Revised Penal Code of the Philippines was enacted in the year 1930.

Despite several amendments thereto, it is substantially the same code that was

promulgated before the Second World War, which replaced the old Penal Code that

was based on the Spanish Penal Code of 1870. The new Code was drafted by a

committee created in 1927, and headed by Justice Anacleto Díaz, who was still a

13
Briones vs Miguel G.R. No. 156343. October 18, 2004
 9

judge when the code was drafted. Rather than engage in a wholesale codification of

all penal laws in the Philippines, the committee instead revised the old Penal Code

and included all other penal laws only insofar as they related to the Penal Code.

As a result, the Revised Penal Code was enacted during a time that was

totally different from today. Back then, women were still regarded as completely

inferior to men, thus needing the utmost protection regardless of it resulting in a

gender bias in the language of the law. As an example, when the Code was passed,

women in the United States still did not have the right to vote, it was seven years

before the Women’s Suffrage Plebiscite under Commonwealth Act No. 34. It was

more than two score years before the United States overturned the Common-Law

Doctrine of the Rule of the Thumb; where husbands could use moderate correction

against their wives and children, this moderate correction allowed a man to beat his

wife using a stick that was no thicker than a thumb.14

With those situations in mind, the conditions on which the Revised Penal

Code was passed may further come to light. That is, it might not have been

conceivable for the framers at the time to think that men would be victims of

domestic and sexual abuse.

14Fast, Jonathan. Beyond Bullying: Breaking the Cycle of Shame, Bullying, and Violence. Oxford
University Press. p. 105.
 10

Qualified Seduction

The Crime of Qualified Seduction15 has the following requisites: (1) the

offended party is a virgin; (2) offended party must be over 12 years old and

under 18 years old; (3) offender has intercourse with the offended party; and

(4) there is abuse of authority, confidence or relationship on the part of the

offender.

By the word virgin, the first element was understood to mean that the

victim is a virtuous woman of good reputation.16 ‘Virgin’ is construed as

only covering female and not a male. Thus, a man cannot be a victim of

Qualified Seduction no matter how virtuous he is or how good his reputation

may be, as the first requisite will not be present. The same principle applies

for the Crime of Simple Seduction.17

Forcible Abduction

Forcible Abduction has the following requisites: (1) the person abducted is a

woman; (2) the abduction is against her will; and (3) that the abduction is

15
Revised Penal Code, Article 337
16
U.S. vs Casten, 34 Phil. 808
17
Revised Penal Code Article 338
 11

with lewd designs. A simple reading would yield that abduction can only be

committed against a woman and not a man.

Consented Abduction

Consented Abduction18 has the following requisites; (1) the offended party

must be a virgin; (2) she must be over 12 and under 18 years old; (3) that the

taking away of the offended party must be with her consent, after the

solicitation or cajolery from the offender; and (4) that the taking away of the

offended party must be with lewd designs.

The word ‘virgin’ in this provision is used in the same manner as in

Simple and Qualified Seduction,19 meaning a virtuous woman of good

reputation. Thus, a virgin is understood to only refer to a woman.

Rape

Rape under Article 266-A20 of the Revised Penal Code as amended by

Republic Act No. 8353 which took effect on October 22, 1997 can be

18
Revised Penal Code Article 343
19
The Revised Penal Code, Eighteenth Edition, Luis B. Reyes.
20
Republic Act No. 8353, 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:
 12

committed in two ways: (1) by carnal knowledge as defined by the first

paragraph of the said article; and (2) by sexual assault as defined by the

second paragraph of the same article.

Under Republic Act No. 8353, the Crime of Rape can now be committed by

a male or a female. Prior to the amendment, rape could only be committed

by a male person. It further amended the crime of Rape so that it can now be

committed against a male person. However, this is limited to the second

type of Rape, under the second paragraph of Article 266-A which is Rape by

sexual assault. Rape under the first paragraph of the said Article or by

having carnal knowledge of the victim cannot be committed against a man

since one of the essential requisites of the said crime is that a person must

have carnal knowledge with a woman.

"Chapter Three"
"Rape"
"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. xxx
 13

B. Garcia v. Drilon

In this case, one of the issues raised to the Supreme Court was that R.A. 9262 is

unconstitutional for allegedly being discriminatory and unjust, and thus constitutes a

violation of the equal protection clause. The Court ruled in favor of the constitutionality

of the law stating that the law does not violate the guaranty of equal protection of the

laws. The Court stated that equal protection simply requires that all persons or things

similarly situated should be treated alike, both as to rights conferred and responsibilities

imposed. In Victoriano v. Elizalde Rope Workerkers’ Union,21 the Court ruled that all

that is required of a valid classification is that it be reasonable, which means that the

classification should be based on substantial distinctions which make for real

differences; that it must be germane to the purpose of the law; not limited to existing

conditions only; and apply equally to each member of the class. Therefore, the law in

question is based on a valid classification and did not violate the equal protection clause

by favoring women over men as victims of violence and abuse to whom the Senate

extends its protection. The court further cited the sponsorship speech of then Sen. Loi

Estrada which includes an official statistic on violence against women and children.

However, granted that the speech was delivered in relation to the passage of the law

which was only then Senate Bill No. 2723, it only showed one side of the picture and

21
G.R. No. L-25246, Sept. 12, 1974
 14

failed to show the statistic of violence against men. It would have been proper to

compare both data to show that there is a large disparity and thus the need for the law.

Further, Sen. Estrada herself, the sponsor of R.A. 9262 originally included men as

being covered by the protection under the law, but was later amended during Congress

deliberations. An excerpt from the deliberation reads:

Senator Pangilinan. I just wanted to place this on record, Mr. President. Some
women's groups have expressed concerns and relayed these concerns to me
that if we are to include domestic violence apart from against women as well
as other members of the household, including children or the husband, they
fear that this would weaken the efforts to address domestic violence of which
the main victims or the bulk of the victims really are the wives, the spouses or
the female partners in a relationship. We would like to place that on record.
How does the good Senator respond to this kind of observation?

Senator Estrada. Yes, Mr. President, there is this group of women who call
themselves "WIIR" Women in Intimate Relationship. They do not want to
include men in this domestic violence. But plenty of men are also being
abused by women. I am playing safe so I placed here members of the family,
prescribing penalties therefor and providing protective measures for victims.
This includes the men, children, live-in, common-law wives, and those related
with the family.

The amendment to exclude men came from Sens. Loren Legarda and Vicente Sotto

III, to wit:

Senator Legarda. Mr. President, the reason I am in support of the

measure. Do not get me wrong. However, I believe that there is a need to
protect women's rights especially in the domestic environment.

As I said earlier, there are nameless, countless, voiceless women who

have not had the opportunity to file a case against their spouses, their live-in
 15

partners after years, if not decade, of battery and abuse. If we broaden the
scope to include even the men, assuming they can at all be abused by the
women or their spouses, then it would not equalize the already difficult
situation for women, Mr. President.

I think that the sponsor, based on our earlier conversations, concurs

with this position. I am sure that the men in this Chamber who love their
women in their lives so dearly will agree with this representation. Whether we
like it or not, it is an unequal world. Whether we like it or not, no matter how
empowered the women are, we are not given equal opportunities especially in
the domestic environment where the macho Filipino man would always feel
that he is stronger, more superior to the Filipino woman.

xxxx

Senator Sotto. x x x May I propose an amendment to the amendment.

The President Pro Tempore. Before we act on the amendment?

Senator Sotto. Yes, Mr. President.

The President Pro Tempore. Yes, please proceed.

Senator Sotto. Mr. President, I am inclined to believe the rationale used by the
distinguished proponent of the amendment. As a matter of fact, I tend to
agree. Kung may maaabuso, mas malamang iyong babae kaysa sa lalake. At
saka iyong mga lalake, puwede na talagang magulpi iyan. Okey lang iyan. But
I cannot agree that we remove the children from this particular measure.

As the Court does not concern itself with the wisdom, justice, or expediency of a

statute, it did not venture into the real motivations and wisdom of the members of the

Senate in limiting the protection to women and children only, to the exclusion of men. A

brief survey of our existing laws determines that although there are laws which would

cover domestic violence against men (Physical Injuries under the Revised Penal Code or

Legal Separation under the Family Code), these are not as comprehensive as R.A. 9262 in
 16

terms of protection orders as they only either penalize the crime or only involves custody

of children and conjugal property issues.

C. US cases of unequal treatment of men

In Hermesmann v. Seyer,22 a precedent-setting case in Kansas United States, Colleen

Hermesmann successfully argued that a woman is entitled to sue the father of her child for

child support – even if conception occurred as a result of a criminal act committed by the

woman.

Hermesmann was a babysitter for Shane Seyer during 1987 and 1988. At the age of 16,

she begun a sexual relationship with Seyer when he was only 12 years old. When she was

17 and Seyer was 13, she became pregnant and their daughter was born in 1989. Criminal

charges had been brought against Hermesmann accusing her of "engaging in the act of

sexual intercourse with a child under sixteen whilst she herself was a juvenile.

The case established a precedent which has subsequently been used in Kansas courts. It

is one of the earlier cases now cited in U.S. child support guidelines which say that in

every case that has addressed the issue, the court has decided that an underage boy is

liable for the support of his child even when the conception was the result of statutory rape

by the mother.

22
847 P.2d 1273 (Kan. 1993)
 17

In another case for support, SF v. State Ex Rel. TM,23 involving sexual assault upon a

man in the State of Alabama suing S.F., alleging that S.F. was the father of T.M.'s minor

child. The parties submitted to court-ordered blood testing. The results of the tests

indicated a 99.47% probability that S.F. was the father of the child. On February 14, 1995,

the district court found S.F. to be the father of the child and ordered him: to pay $106.04

per week in child support; to pay $8,960.64 as child support arrearage. At trial, S.F. made

certain constitutional challenges based on his Fourteenth Amendment due process right.

He contended that he "did not knowingly and willfully participate in any sexual activity

with the mother of the minor child" and that he "was intoxicated on or about the 20th of

September 1992 when the alleged sexual occurrence happened and that ... T.M. had sex

with [him] while he was intoxicated and not even cognizable of what was happening." He

further contended that the court, acting in equity, could abate any child support payments

due because of what he alleged to be T.M.'s sexual assault upon him. The court held that

the conduct of the mother had no bearing upon the parents' obligations to support their

child. It further stated: "the mother's alleged fault or wrongful conduct is irrelevant.”

D. Domestic abuse cases against men in the United States

When we discuss domestic violence, it is often assumed that the victims are women and

the statistics are truly traumatic. The less-told story is that a striking number of men are

23
695 So. 2d 1186 (1996)
 18

victims, too, suffering physical, mental and sexual abuse in both heterosexual and same-

sex relationships. One in four adult men in the U.S. will become a victim of domestic

violence during his lifetime.24

Male victims of domestic violence, just like female victims, often deal with intense

self-doubt and anxiety before reaching out for help. Victims may fear their abusers will

seek retribution if they go to the police, or they feel great uncertainty about leaving their

home for temporary safe house shelter. Men and women can both experience these kinds

of worries. But one barrier to that tends to only apply to male victims? The belief that

domestic violence laws and resources don’t apply to them.25

In another compilation of U.S. statistical data relating to domestic abuses against men,26

per a 2010 national survey by the Centers for Disease Control and U.S. Department of

Justice, in year preceding the national survey, more men than women were victims of

intimate partner physical violence and over 40% of severe physical violence was directed

at men. Men were also more often the victim of psychological aggression and control over

sexual or reproductive health. Despite this, few services are available to male victims of

24
Black, Michele C., et al., National Intimate Partner and Sexual Violence Survey,
http://www.cdc.gov/ViolencePrevention/pdf/NISVS_Report2010-a.pdf, retrieved Nov. 22, 2016
25 Thirty Years of Denying the Evidence on Gender Symmetry in Partner Violence: Implications for

Prevention and Treatment, Murray A. Straus, PhD

26
National Study: More Men than Women Victims of Intimate Partner Physical Violence, Psychological
Aggression by Adjunct Faculty, University of Phoenix School of Criminal Justice and Security
 19

intimate partner violence. This paper explores the extent of intimate partner violence

against male victims. It looks at the domestic violence system response to male victims. It

re-examines data from the U.S. Centers for Disease Control National Intimate Partner and

Sexual Violence Survey, research on the impact of intimate partner violence (IPV) on

male victims and the system´s response to it. It would seem the, that more research is

needed on IPV against men, its impact on men and the domestic violence service response

to male victims. Public education is needed on the extent of IPV against males, and

services need to be provided for these victims. Increased domestic violence education

directed at women and services to men should lead to a reduction of DV against women as

well as men, since woman aggressors frequently are themselves victimized subsequently.

A research27 on symmetry between men and women in perpetration of physical

violence against a spouse or dating partner and symmetry between men and women in the

motives and risk factors for partner violence. The focus of the research is on physical

assault, because that is the aspect of partner maltreatment that has been the focus of the

most controversy. The symmetry in perpetration is that the percentage of women who

physically assault a male partner is about the same or greater than the percent of men who

physically assault a female partner.

27
Thirty Years of Denying the Evidence on Gender Symmetry in Partner Violence: Implications for
Prevention and Treatment, Murray A. Straus, PhD
 20

Another statistical study28 showed that the gender disparity in injuries from domestic

violence is less than originally portrayed by feminist theory. That study also indicates high

levels of unilateral intimate violence by females to both males and females. Males

appearing to report their own victimization less than females and not view female violence

against them as a crime. Fear is one of the reasons why these abuses are not reported.29

Women’s use of domestic violence is misrepresented by the media and denied by

feminists, media representations display male perpetrators 10 times more often than they

display female perpetrators and when it is displayed, it is usually shown as humorous.30

In the United States, it would seem that police do not see women as abusers, as a

domestic violence case31 in Florida made headlines when a man, an army ranger, came

forward with evidence that his estranged wife had physically abused him. His proof was a

video from a GoPro camera he was wearing; it allegedly showed his wife physically

assaulting him in front of their children. The two have been engaged in a bitter divorce

and custody battle, and now domestic violence has been added to the mix. The wife in this

28
The Gender Paradigm in domestic violence research and theory by Donald G. Dutton and Tonia L.
Nicholls for the University of British Columbia
29 Id
30
Hit like a Girl: Women Who Batter Their Partners by Theresa Porter
31
Fox8WebCentral, Army ranger uses GoPro to catch wife’s domestic violence on video,
http://fox8.com/2015/09/22/watch-army-ranger-uses-gopro-to-catch-wifes-domestic-violence-on-video/,
retrieved November 20, 2016
 21

matter has been charged and is currently in jail. Yet for women you don’t need video

evidence before the police will take you seriously.

A survey32 of College Students in the University of Louisville reported that between on

in five and one in eleven males have been victims of some form of sexual victimization. A

case of this would be the case of Andrew33 of brown University in Washington D.C.

during the sixth night of his freshman year he was assaulted by a male student in his dorm

bathroom.34

Literature shows us that civil laws treat men and women differently, either be they

husbands, wives, mothers, fathers, and children. Moreover, it would show us that both

men and women can be victims of sexual offenses regardless of gender, and the trauma

experienced by both are indeed great, but the laws ofttimes protect one over the other, thus

this study aims to fill in the gaps in current Philippine laws.

32
Effects of Sexual Assaults on Men: Physical, Mental and Sexual Consequences by Richard Tewksbury for
University of Louisville
33
Last name kept confidential for privacy
34
Kassie, Emily, Male Victims Of Campus Sexual Assault Speak Out ‘We’re Up Against A System That’s
Not Designed To Help Us,’ http://www.huffingtonpost.com/2015/01/27/male-victims-sexual-
assault_n_6535730.html. Retrieved November 23, 2016
 CHAPTER III - Methodology

This study will utilize laws & jurisprudence in foreign jurisdictions while surveying

different Philippine laws as well as statistical data. This study will also utilize journals and

articles relating to current trends in society regarding gender equality in all aspects of life.
 CHAPTER IV – Legal Analysis

A. State policies regarding gender equality

The Equal Protection clause

Justice Holmes, described the equal protection clause as "the last resort of

constitutional arguments'',35and this guarantee today is nothing less than "the single most

important concept in the Constitution for the protection of individual rights."36

Equal protection is a specific constitutional guarantee of the Equality of Persons37.

The equal guarantee is “legal equality or, as it is usually put, the equality of all persons

before the law. Under it, each individual is dealt with as an equal person in the law, which

does not treat the person differently because of who he is or what he is or what he

possesses. The goddess of Justice is portrayed with a blindfold, not because she must be

hindered in seeing where the right lies but that she may not discriminate against suitors

before her, dispensing instead an even-handed justice to all.” 38

35
Buck v. Bell, 274 U.S. 208 (1927)
36
The New Equal protection DR. MIRIAM DEFENSOR SANTIAGO, Philippine Law Journal, volume 58
first quarter
37
Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, page 139, 2009 Edition
38
II SCHWARTZ, the Rights of the Person, 487-8 (1968)
 24

The equal protection of the law clause is against undue favor and individual or class

privilege, as well as hostile discrimination or the oppression of inequality. It is intended to

eliminate discrimination and oppression based on inequality. Recognizing the existence of

real differences among men, the equal protection clause does not demand absolute

equality.39 It is not intended to prohibit legislation which is limited either by the object to

which it is directed or by the territory within which it is to operate. It does not demand

absolute equality among residents; it merely requires that all persons shall be treated alike,

under like circumstances and conditions both as to privileges conferred and liabilities

enforced. The equal protection clause is not infringed by legislation which applies only to

those persons falling within a specified class, if it applies alike to all persons within such

class, and reasonable grounds exist for making a distinction between those who fall within

such class and those who do not.40 In fine, the equal protection clause does not forbid all

legal classification. What is proscribed is a classification which is arbitrary and

unreasonable.41

For determining the reasonableness of classification, the later jurisprudence has

developed three kinds of test depending on the subject matter involved. The Most liberal is

the minimum or the rational basis scrutiny according to which the government need only

39
Himagan v. People, G.R. No. 113811, October 7, 1994
40
Tiu v. Court of Apppeals, G.R. No. 127410, January 20, 1999
41
Dumlao v. Comelec, G.R. No. L-52245, January 22, 1980
 25

show that the challenged classification is the rationally related to serving a legitimate state

interest.42

The middle one is the intermediate or meddle tier scrutiny test which requires

government to show that the challenged classification serves an important state interest

and that the classification is at least substantially related to serving that state interest. This

is applied to suspect classifications like gender or illegitimacy.43

The last and most demanding is the strict scrutiny test which required the

government to show that the challenged classification serves a compelling state interest

and that the classification is necessary to serve that interest.44 Strict scrutiny is used today

to test the validity of laws dealing with the regulation of speech, gender, or race as well as

other fundamental rights as expansion from its earlier applications to equal protection.45

The United States Supreme Court has expanded the scope of strict scrutiny to protect

fundamental rights such as suffrage,46 judicial access,47and interstate travel.48

42
British American Tabaco v. Camacho, G.R. No. 163583, April 15, 2009
43
Erwin Chemerinsky, Constitutional Law, Principles and Policies, 2nd Edition, pp. 645-646
44
White light v. City of Manila, G.R. No. 122846, January 20, 2009
45
Mendoza, J., Concurring Opinion in Estrada v. Sandiganbayan, G.R. No. 148560, 19 November 2001
46
Bush v. Gore, 531 U.S. 98 (2000).
47
Boddie v. Connecticut, 401 U.S. 371 (1971).
48
Shapiro v. Thompson, 394 U.S. 618 (1969).
 26

In cases of gender classification, thus the topic of this study, all three classifications

are used in determining the constitutionality on the basis of gender.

Sometimes classification dealing with the regulation of gender use the Rational

basis test as in the case of Garcia vs Drillon49 where the husband assailed the

constitutionality of R.A. 9262 entitled "An Act Defining Violence Against Women and

Their Children, Providing for Protective Measures for Victims, Prescribing Penalties

Therefor, and for Other Purposes." as being violative of the equal protection and due

process clauses.

In the case of Goesaert v. Cleary,50 where in the State of Michigan, as part of the

system for controlling the sale of liquor, bartenders are required to be licensed in all cities

having a population of 50,000, or more, but no female may be so licensed unless she be

"the wife or daughter of the male owner" of a licensed liquor establishment. Their

arguments against the law focused on the claim that Michigan could not forbid females

generally from being barmaids and at the same time make an exception in favor of the

wives and daughters of the owners of liquor establishments. They argued that the law

denied them equal protection of the laws and deprived them of their property without due

49
G.R. No. 179267, June 25, 2016
50
335 U.S. 464 (1948)
 27

process of law. Justice Frankfurter delivered the opinion of the court which upheld the

Michigan law, saying

“Since bartending by women may, in the allowable legislative judgment, give

rise to moral and social problems against which it may devise preventive
measures, the legislature need not go to the full length of prohibition if it
believes that, as to a defined group of females, other factors are operating
which either eliminate or reduce the moral and social problems otherwise
calling for prohibition. Michigan evidently believes that the oversight assured
through ownership of a bar by a barmaid's husband or father minimizes hazards
that may confront a barmaid without such protecting oversight.”

Since the object of that law was to protect the morals of women. The physical and

psychological differences between men and women make the distinction reasonably

related to the valid purpose.

Other times classification dealing with the regulation of gender uses the

Intermediate Scrutiny test as basis as well. Justice Leonen, in his separate opinion in the

case of Garcia vs Drillon,51 separates from the majority opinion and submits that the test

to determine an equal protection challenge against the law, denying statutory remedies to

men who are similarly situated as the women who are given preferential treatment in the

law, on the basis of sex or gender, should be at the level of intermediate scrutiny or

middle-tier judicial scrutiny rather than the rational basis test used in the ponencia of

Justice Bernabe.

51
G.R. No. 179267, June 25, 2016
 28

Fr. Joaquin Bernas in his commentaries,52 is of the opinion that classifications

dealing with the regulation of gender use the Intermediate Scrutiny test.

The United States Supreme Court did not hold that gender-based classifications did

not apply a Strict Scrutiny approach53 nor does it apply the Rational Basis test. The United

States Supreme Court takes on a somewhat "sharper focus" than the Rational Basis

approach when gender-based classifications are challenged and the classification must

"bear a 'substantial relationship' to 'important governmental objectives.'” 54 Michael M. v.

Superior Court of Sonoma County55 is a perfect example of this doctrine. The defendant

was a 17 2-year-old male charged with violating California's statutory rape law. Before his

trial, the petitioner sought to set aside the information by claiming that section 261.5

unlawfully discriminated on the basis of gender and was under inclusive. The trial court,

the California Court of Appeal, and the Supreme Court of California denied the

petitioner's motion, and the United States Supreme Court granted certiorari. In a decision

written by Justice Rehnquist, the United States Supreme Court affirmed the judgment of

the California Supreme Court. Before delving into his reasoning, however, Justice

Rehnquist gives the reader a caveat: "As is evident from our opinions, the Court has had

52
Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, page 140, 2009 Edition
53
Michael M. v. Superior Court of Sonoma County, 101 S. Ct. 1200 (1981)
54
Craig v. Boren, 429 US 190 (1976)
55
101 S. Ct. 1200 (1981)
 29

some difficulty in agreeing upon the proper approach and analysis in cases involving

challenges to gender-based classifications."

Other times as well classification dealing with the regulation of gender uses the

Strict Scrutiny test as basis as well.

In several cases, where the Supreme Court of the Philippines tackled the validity of

a classification made by the law, cases like White light v. City of Manila56, Akbayan-

Youth v. COMELEC57, Ermita-Malate Hotel and Motel Operations Association, Inc., v.

Hon. City Mayor of Manila58 and Estrada v. Sandiganbayan59 are cited by it in saying that

Strict Scrutiny test is used in determining the validity of classification involving gender,

however it is well to note that these cases do not involve classification based on gender:

White light v. City of Manila involves a case where the Mayor of Manila signed into law

and ordinance entitled “An Ordinance Prohibiting Short-time Admission, Short-time

Admission Rates, and Wash-up Schemes in Hotels, Motels, Inns, Lodging Houses, and

Similar Establishments in the City of Manila.” The case of Ermita-Malate Hotel and Motel

Operations Association, Inc., v. Hon. City Mayor of Manila is something similar, it

involves an ordinance which proposes to check the clandestine harboring of transients and

56
G.R. No. 122846, January 20, 2009
57
407 Phil. 618
58
127 Phil. 306
59
G.R. No. 148560, 19 November 2001
 30

guests of these establishments by requiring these transients and guests to fill out a

registration form, prepared for the purpose, in a lobby open to public view at all times, and

by introducing several other amendatory provisions calculated to shatter the privacy that

characterizes the registration of transients and guests." While the case of Estrada v.

Sandiganbayan is a facial challenge to RA 7080, entitled “An Act defining and Penalizing

the Crime of Plunder”

Due to the conflicting usage of the Supreme Court regarding which of the three

tests to use as the determination of the valid classification, we thought it prudent to use the

Rational Basis test as a basis since it is the least strict of all the three tests. Therefore if a

law does not pass the Rational basis test, it is reasonable to conclude that that particular

would not pass the Intermediate Scrutiny test and the Strict Scrutiny test as well.

With that said it is important to discuss the policies of the state regarding gender and

gender rights.

Basis for the Protection of Women in the Philippine laws

The Republic of the Philippines has a multitude of laws protecting the rights of

women. In fact, nothing less than the in 1987 Constitution itself has provisions which

protect the rights of women, namely:

 31

ART II. Declaration of State Principles and State Policies

Sec. 11. The State values the dignity of every human person and
guarantees full respect for human rights.

Sec. 14. The State recognizes the role of women in nation building,
and shall ensure the fundamental equality before the law of women
and men.

ART XIII Social Justice and Human Rights

Sec. 14 The State shall protect working women by providing safe and
healthful working conditions, taking into account their maternal
functions, and such facilities and opportunities that will enhance their
welfare and enable them to realize their full potential in the service of
the nation.

These are new provisions in the 1987 Constitution which were absent in the

previous Constitution. These, as well as UN Conventions, are the basis for the special laws

protecting the rights of women. Beyond stating that women do have a role in nation

building, the provision makes the more important assertion that there exists a fundamental

equality before the law. There is, however, no intent in these provisions to advocate

absolute sameness because there are biological differences between men and women60, it

was precisely due to these natural differences that the provision was made to read

“fundamental equality before the law” which is also the stand of this study.

Although, these principles in Article II are not intended to be self-executing

principles, ready for enforcements though courts. They are used by the judiciary as aids or

60
Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, page 89, 2009 Edition
 32

as guides in the exercise of its power of judicial review, and by legislature as guides in its

enactment of laws.61 Although Commissioner Felicitas Aquino originally took the position

that intention was to formulate the provision in language that would be “self-

implementing”. During the period of amendment, however, Commissioner Aquino

changed her position, she made it clear that the intent was merely to push statutory

legislation that would eliminate the inequalities found in the existing law.62

These principles were further expounded in the statement of policies of RA 7610

otherwise known as "The Magna Carta of Women” saying that the state shall promote

empowerment of women and pursue equal opportunities for women and men and ensure

equal access to resources and to development results and outcome. Further, the State

realizes that equality of men and women entails the abolition of the unequal structures and

practices that perpetuate discrimination and inequality. To realize this, the State shall

endeavor to develop plans, policies, programs, measures, and mechanisms to address

discrimination and inequality in the economic, political, social, and cultural life of women

and men.

61
Tanada v Angara, G.R. No. 118295. May 2, 1997
62
Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, page 89, 2009 Edition
 33

It is worthy to note that the constitution uses the words equality and fundamental

equality between men and women; it does not require special treatment but simply

equality.

Another basis for the protection of women are our international treaties and

covenants.

Protection of women in international law

Another basis for the protection of women is international law. Since under the

1987 Constitution, international law can become part of the sphere of domestic law either

by transformation or incorporation.63 The transformation method requires that an

international law be transformed into a domestic law through a constitutional mechanism

such as local legislation. The incorporation method applies when, by mere constitutional

declaration, international law is deemed to have the force of domestic law.

Treaties become part of the law of the land through transformation pursuant to

Article VII, Section 21 of the Constitution which provides that “no treaty or international

agreement shall be valid and effective unless concurred in by at least two-thirds of all the

members of the Senate.”

63
Pharmaceutical & Health Care Assn. of the Phil. v. Health Secretary Duque, et al., G.R. No. 173034
 34

First of these international laws is the Universal Declaration of Human Rights, it is

a declaration adopted by the United Nations General Assembly on 10 December 1948,

(well before the effectively of the 1987 Constitution) at the Palais de Chaillot in Paris,

France. The Declaration arose directly from the experience of the Second World War and

represents the first global expression of what many people believe to be the rights to

which all human beings are inherently entitled.64 The Philippines is a signatory to the

Universal Declaration of Human Rights drafted by the United Nations in the 1948.

The Declaration consists of thirty articles which, although not legally binding, have

been elaborated in subsequent international treaties, economic transfers, regional human

rights instruments, national constitutions, and other laws. The International Bill of Human

Rights consists of the Universal Declaration of Human Rights, the International Covenant

on Economic, Social and Cultural Rights, and the International Covenant on Civil and

Political Rights and its two Optional Protocols.

While not a treaty itself, the Declaration was explicitly adopted for the purpose of

defining the meaning of the words "fundamental freedoms" and "human rights" appearing

in the United Nations Charter, which is binding on all member states. For this reason, the

Universal Declaration of Human Rights is a fundamental constitutive document of the

United Nations. In addition, the Declaration forms part of customary international law.

64
http://www.un.org/en/universal-declaration-human-rights/
 35

The principles of the Declaration are elaborated in international treaties including

the International Convention on the Elimination of Discrimination Against Women.

Fifth paragraph of the Preamble states:

“Whereas the peoples of the United Nations have in the Charter

reaffirmed their faith in fundamental human rights, in the
dignity and worth of the human person and in the equal rights of
men and women and have determined to promote social
progress and better standards of life in larger freedom”

Article 1.
All human beings are born free and equal in dignity and rights.
They are endowed with reason and conscience and should act
towards one another in a spirit of brotherhood.

Article 2.
Everyone is entitled to all the rights and freedoms set forth in
this Declaration, without distinction of any kind, such as race,
colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status.
Furthermore, no distinction shall be made on the basis of the
political, jurisdictional or international status of the country or
territory to which a person belongs, whether it be independent,
trust, non-self-governing or under any other limitation of
sovereignty.

Article 7.
All are equal before the law and are entitled without any
discrimination to equal protection of the law. All are entitled
to equal protection against any discrimination in violation of
this Declaration and against any incitement to such
discrimination.

Article 16.
 36

(1) Men and women of full age, without any limitation due to
race, nationality or religion, have the right to marry and to
found a family. They are entitled to equal rights as to
marriage, during marriage and at its dissolution.

It is noteworthy that what these treaties emphasize is the equality of men and

women, and that no one should be regarded higher than the other. The Convention on the

Elimination of All Forms of Discrimination against Women also state that:

“xxx discrimination against women violates the principles of equality of

rights and respect for human dignity,
is an obstacle to the participation of women, on equal terms with men, in
the political,social, economic and
cultural life of their countries, hampers the growth of the prosperity of
society and the family and makes more
difficult the full development of the potentialities of women in the
service of their countries and of humanity.”

These treaty obligations require the equality of men and women.

B. New Civil Code of the Philippines and the Family Code

Republic Act 386, or the Civil Code of the Philippines, took effect in 1950 after the final

draft was completed by the Code Commission, headed by former Dean Jorge Bocobo of

the University of the Philippines College of Law, in December 1947 and submitted to

Congress.

The Civil Code of the Philippines has both Spanish and American influence. The

Spanish influence being prevalent on the laws of property, succession, and obligations and
 37

contracts, where some provisions are even direct translations of Código Civil provisions

enforced by Spanish Colonizers. The American influence is most evident on special

contracts, particularly on sales, which are derived from common law practices in USA.

During the Spanish, Filipina women were reduced to second-class citizens. The

Spanish rulers dictated the ideal Filipina image, ‘the Maria Clara,’ who was religious,

submissive, and obedient to men. 65 Filipinas were forced to either study religion or home-

making as preparation for being a nun or a wife.66 Society began to see women as inferior

to men which led to the establishment of a patriarchal society that has prevailed up until

the present.67 The circumstances of Filipinas did not improve much during the American

colonization because gender equality was a taboo subject of education, and even though
68
women were allowed to vote, they were not allowed to run for public office. Filipino

parents were discouraged to send their daughters to secondary and tertiary levels of

education as this was considered a waste because women were, at the time, largely

dependent on their husbands.69 Filipinas were still bound by the expectations of societies,

an expectation of being inferior to men. It should be kept in mind that these were the

65
Saldua, Adrianne Dianne Isabella R., ‘The Role of Women from Pre-Historic to Spanish Era,’
https://tonkshistory.wordpress.com/2012/02/22/the-role-of-women-from-pre-hispanic-to-spanish-era/,
retrieved 12 May, 2017
66
Ibid.
67
Ibid.
68
Sobritchea, Carolyn Israel, University of the Philippines, AMERICAN COLONIAL EDUCATION AND
ITS IMPACT ON THE STATUS OF FILIPINO WOMEN.
69
Ibid.
 38

conditions present at the time Código Civil was enforced which subsequently influenced

the drafting of the new and current Civil Code.

On the other hand, the Family Code of the Philippines, or Executive Order 209, came into

law in 1987. The committee that drafted the Family Code was formed around 1979 when

it was first chaired by Supreme Court Justice Flérida Ruth P. Romero and then by

Supreme Court Justice J.B.L. Reyes. The Family Code was intended to supersede Book I

of the Civil Code concerning persons and family relations to cope up with the times and

our evolving culture. Although the enactment of the Family Code made steps in the right

direction regarding gender neutrality it, however, made unnecessary distinctions in some

parts as well, which will be discussed in detail later.

As the avowed purpose of the new Civil Code, and consequently the Family Code,

is to equalize the sexes as much as possible,70 the proponents pinpointed some provisions

which do not meet this purpose, in addition to failing the rational basis test. In general, the

provisions that will be discussed are not based on substantial distinctions, as there are no

substantial distinctions between men and women regarding the matters covered by the

provisions. Furthermore, this distinction between men and women are not germane to the

purpose of the law earlier mentioned, which is to equalize the sexes as much as possible.

70
Justice J.B.L. Reyes, Observations on the new Civil Code, XV L.J. 556, as cited in Francisco, Vicente, J.,
Civil Code of the Philippines: Annotated and Commented – Book Three, p. 348.
 39

Finally, the distinction, as one of the main point of this study, is only applicable to the

previous conditions which no longer hold true today.

The following are the abovementioned provisions, some of which are going to be

discussed simultaneously as they cover similar, if not identical, matters.

Civil Code provisions

“Article 802. A married woman may make a will without the

consent of her husband, and without the authority of the court.
(n)
Article 803. A married woman may dispose by will of all her
separate property as well as her share of the conjugal
partnership or absolute community property. (n)
xxx
Article 1047. A married woman of age may repudiate an
inheritance without the consent of her husband. (995a)”

Articles 802 and 803 are under the Book III, Title IV, Chapter 1, section 1,

subsection 2, which covers Testamentary Intent and Capacity while Article 1047 is

under the same Book, and title, Chapter 4, section 3, which covers Acceptance and

Repudiation of the Inheritance. Articles 802 and 803 were taken from Article 905 of

the Civil Code of France71 and Article 1273 of the Civil Code of California,72

respectively. It is worth mentioning that the enactment of the Family Code rendered

these provisions of little application, according to authorities[73]74] because Article

71
Francisco, Vicente, J., Civil Code of the Philippines: Annotated and Commented – Book Three, p. 346.
72
Francisco, Vicente, J., Civil Code of the Philippines: Annotated and Commented – Book Three, p. 347.
73
Balane, Rubén, F., Jottings and Jurisprudence in Civil Law (Succession) (2010 ed.), p. 62.
 40

97 of the family code gives either spouse the right to ‘dispose by will of his or her

interest in the community property.’75 Yet still, it is noteworthy that both of these

provisions are widely criticized by many commentators, and Atty. Balane, a noted

civilist, even went as far as categorically stating that Articles 802 and 803 are

‘amusingly sexist.’76

With respect to Articles 802 and 803, according to Francisco, in earlier law,

women were allowed to bequeath personalty with the consent of her husband but

not devise real property, even with the husband’s consent. This stemmed from

either the husband’s marital rights in the control of her property, or arose from the

fact that a married woman was controlled by her husband in respect of matters of

property.77 In seeming response to this unequal view between men and women in

earlier law, arts. 802 and 803 were added to the new Civil Code to give an express

grant to married women the right to make a will and dispose all her properties

therein. However, in doing so, the Code Commission inadvertently, as the

proponents surmise, made distinctions where there should have been none. The

Code Commission could have left the matter of capacity of all persons to Article

796, which provides that ‘all persons who are not expressly prohibited’ are allowed

74
Mison, Siegfred, B., Wills and Succession: Better Explained (2 nd ed.), p. 68.
75
FAMILY CODE, Article 97.
76
Balane, Rubén, F., Jottings and Jurisprudence in Civil Law (Succession) (2010 ed.), p. 62.
77
Francisco, Vicente, J., Civil Code of the Philippines: Annotated and Commented – Book Three, p. 347.
 41

to make a will, and there are no existing laws which prohibit married women from

making wills.

The same applies to Article 1047 which was a revision of the old law which

provided that wives require the permission of their husbands before they can accept

or repudiate an inheritance but removed such requirement in the present law. It is

noteworthy that Article 1047 was limited by Article 114 of the Civil Code which

provides that, except those from ascendants, descendants, parents-in-law, and

collateral relatives within the fourth degree, ‘the wife cannot, acquire any property,

without the husband’s consent.’78 Further limitation can be found under Article 200

which prohibited either spouse from renouncing any inheritance without the consent

of the other, leaving the matter before the courts in consultation with the family

council in case of conflict.79 These two limitations were already repealed by the

Family Code which did not reproduce such limitations, and not to mention that

Article 1047 in itself was a superfluity in the first place as the first paragraph of

Article 1044 already provided that any person having the free disposal of his

property may accept or repudiate an inheritance. Therefore, since the inheritance

will form part of the wife’s separate property and she may freely dispose of the

same, Article 1047 need not provide such grant.

78
Ibid., p. 1022.
79
Ibid.
 42

With the root of these provisions in mind, and how these provisions were

worded, two things can be inferred: (1) without these provisions, married women do

not have such right, or; (2) married men do not have the same right. Most

authorities, specifically Balané, taking the latter view except for Article 1047,

which in his view did not make any suggestion that the husband did not have the

same right, although he suggested a more accurate wording of the provision.80

These observations can also be made to the following articles: Article 1032,

regarding acquisitive and extinctive prescriptions running in favor or against a

married woman;81 Article 1647, regarding the want of capacity of a husband,

without proper authority from the wife, to record a lease in the Registry of Property

with respect to the latter’s property, but without mention of the vice versa, and as to

the same matter, a father as to the property of a minor child, without mention of the

mother;82 Article 2049, regarding the capacity of the wife to guarantee an obligation

even without the husband’s consent;83 Article 2238, regarding the administration of

the conjugal partnership or absolute community being transferred to the wife in case

of the husband’s insolvency, but does not grant the husband the same rights in case

80
Balane, Rubén, F., Jottings and Jurisprudence in Civil Law (Succession) (2010 ed.), p. 567.
81
NEW CIVIL CODE, Art. 1032.
82
Ibid., Art. 1647.
83
Ibid., Art. 2049.
 43

of the wife’s insolvency;84 and Article 2259, regarding the capacity of a married

woman to execute acts and contracts being governed by the Civil Code, but without

mention of the same with respect to a married man.85

Aside from making a distinction between a married man and a married woman, the

Civil Code also makes a distinction between sons and daughters. More specifically,

in these twin provisions on disinheritance and incapability of succeeding by reason

of unworthiness, to wit:

Article 920. The following shall be sufficient causes for the

disinheritance of parents or ascendants, whether legitimate or
illegitimate:

(1) When the parents have abandoned their children,

or induced their daughters to live a corrupt or
immoral life, or attempted against their virtue;

xxx

Article 1032. The following are incapable of succeeding by

reason of unworthiness:

(1) Parents who have abandoned their children or

induced their daughters to lead a corrupt or
immoral life, or attempted against their virtue;
xxx

As worded, the ground for disinheritance and unworthiness to succeed with

respect to inducement to lead a corrupt or immoral life only applies to daughters.

84
Ibid., Art. 2238.
85
Ibid., Art. 2259.
 44

Although, it is not claimed by the writers that inducing a son to lead a corrupt life is

not a ground for disinheritance. As a matter of fact, one of the grounds for

disinheritance under Article 920 is the loss of Parental Authority, and one of the

grounds for such loss is giving the child corrupting orders, counsel, or example.86

However, unlike in the quoted provisions, there is a need for actual loss of Parental

Authority and not merely giving ground for the deprivation of such authority. 87

Moving forward, most of the commentators only expands the word

‘daughters’ to include other female descendants.[88][89][90] Two commentators,

however, have a different view; Balané and Mison. In Balané’s commentary, he

stated that at the time the Civil Code was drafted, the world was a more innocent

world; nowadays, however, sexual offenses are committed, apparently, with equal

frequency against males and females, hence he asked ‘shouldn’t sons and other

male descendants be covered as well by this provision?’91 On the other hand, Mison

is of the view that the word ‘daughters’ include sons.92 Although it is not clear what

his legal basis is, it is assumed that it is the abovementioned Family Code provision

which is a ground for loss of Parental Authority.

86
FAMILY CODE, Art. 231.
87
Francisco, Vicente, J., Civil Code of the Philippines: Annotated and Commented – Book Three, p. 770.
88
Tolentino, Arturo M., Commentaries and Jurisprudence on the Civil Code of the Philippines, Vol. III, p.
366
89
Jurado, Comments and Jurisprudence on Succession, p. 337
90
Paras, Ricardo, Wills and Succession, p. 394.
91
Balane, Rubén, F., Jottings and Jurisprudence in Civil Law (Succession) (2010 ed.), p. 442.
92
Mison, Siegfred, B., Wills and Succession: Better Explained (2 nd ed.), p. 279.
 45

The proponents are leaning towards the comments of the Balané and Mison

as there are no substantial difference between a daughter and a son, and any parent

who induces his or her child, regardless of gender, to lead a corrupt or immoral life

deserves to be disinherited or be deprived of his or her capacity to succeed for

being unworthy.

Worth mentioning, though, is the progress of the law with respect to the

vicarious liability of parents for the damages caused by their children, to wit:

“Article 2180. xxx

The father and, in case of his death or incapacity, the

mother, are responsible for the damages caused by the
minor children who live in their company.xxx”

This provision has been modified by Article 221 of the Family Code which

provides that:

“Art. 221. Parents and other persons exercising parental

authority shall be civilly liable for the injuries and damages
caused by the acts or omissions of their unemancipated
children living in their company and under their parental
authority subject to the appropriate defenses provided by
law.”

In Libi vs. IAC,93 the Supreme Court ruled that the civil liability under Art.

2180 of the Civil Code has been modified by Art. 221 of the Family Code in a way

93
Cresencio Libi and Amelia Yap Libi vs. Hon. Intermediate Appellate Court, Felipe Gotiong and Shirley
Gotiong, G.R. No. 70890, 18 September 1992.
 46

that the liability of the mother is now without the alternative qualification. Indeed,

there was no reason in Art. 2180 to only hold the mother liable in case of the death

or incapacity of the father considering that, as a general rule, both parents exercise

joint parental authority over their children.

Family Code Provisions

The family code provisions re-evaluated in this study gives preference either
to the mother or to the father, to wit:

“Art. 213. In case of separation of the parents, parental authority

shall be exercised by the parent designated by the Court. The
Court shall take into account all relevant considerations, especially
the choice of the child over seven years of age, unless the parent
chosen is unfit.

No child under seven years of age shall be separated

from the mother unless the court finds compelling reasons to
order otherwise.” [Emphasis ours]

The second paragraph of Art. 213 pertains to the tender age presumption or the

tender years doctrine which. Before discussing this provision, a brief discussion of

the origin of this presumption is in order. A woman named Caroline Norton, a well-

connected social reformer author and journalist, challenged the prevailing family

law which gave the custody of children to their father after a divorce due to her

personal experience of being deprived of her children after going through a

divorce.94 She eventually succeeded in convincing the British parliament to enact a

law establishing a presumption of maternal custody for children who are under the

94
Wroath, John, Until They Are Seven, The Origins of Women's Legal Rights, (1998), Waterside Press.
 47

age of seven.95 Due to the far reach of the British Empire at the time, this doctrine

spread around the world.

However, in recent history, the doctrine is being gradually abandoned in

favor of the ‘best interest of the child doctrine.’ Specifically, in the United States,

many courts have held the tender age doctrine to be violative of the equal protection

clause because it is an ‘unconstitutional gender-based classification which

discriminates between fathers and mothers in child custody proceedings solely on

the basis of sex.’96 Further, this doctrine has been widely abolished in European

nations, the rule being a joint custody after divorce as their responsibility and

relationship with their child should not be affected by the dissolution or annulment

of their marriage.97 It is the proponents opinion that the same rule should apply to

unmarried couples where the father acknowledged the child to be his, always

keeping in mind the best interest of the child.

In the Philippines, the Supreme Court has stated in a 2010 case that Article

213 gives the mother the custody of children under seven years of age, and the same

cannot be the subject of agreement between the parents.98 The Supreme Court

further ruled that only the courts can order otherwise if it finds compelling reasons

95
Ibid.
96
Tender years doctrine, Wikipedia, https://en.wikipedia.org/wiki/Tender_years_doctrine. Retrieved 11
May, 2017.
97
Ibid.
98
Herald Black Dacasin vs. Sharon Del Mundo Dacasin, G.R. No. 168785,
 48

to do so. In another case,99 the Supreme Court stated that this presumption is based

on sound policy, to wit:

“The general rule is recommended in order to avoid a

tragedy where a mother has seen her baby torn away from her. No
man can sound the deep sorrows of a mother who is deprived of
her child of tender age. xxx”

The proponents believe that since progenitor of the doctrine has gradually veered

away from the tender age presumption, the Philippines should do the same. There is

merit in the reasoning that there is no substantial distinction between a mother and a

father with respect to the love and care they give to their children. The sound policy

abovementioned is, more than anything else, an appeal to emotion. Giving the

mother the mandatory custody of children under the age of seven is not necessarily

to the best interest of the child which is, and rightly so, the primary consideration in

such issues.

The same observations can be made to the following provisions: Art. 211,

providing that the decision of the father shall prevail in case of conflict in the

exercise of parental authority over the person of their common children,100 and; Art.

225, which is substantially the same as Art. 211, but with respect to the parents’

exercise of legal guardianship over the property of their unemancipated common

99
Report of the Code Commission, p.12 as cited in Jocelyn Pablo-Gualberto vs. Crisanto Rafaelito
Gualberto V, G.R. No. 154994/G.R. No. 156254, 28 June, 2005
100
FAMILY CODE, Art. 211.
 49

child.101 There is no reason nor basis to give preference to the father’s decision over

the mother’s with respect to their children’s persons and properties. The proponents

are of the opinion that it should be a case to case basis and the primary

consideration should also be the best interest of the child.

More on giving preference to the decisions of the male-half of family

relationships, the family code provisions also give preference to the husband’s

decision in administration of the spouses’ properties in case of disagreement, to wit:

“Art. 124. The administration and enjoyment of the conjugal

partnership shall belong to both spouses jointly. In case of
disagreement, the husband's decision shall prevail, subject to
recourse to the court by the wife for proper remedy, which must be
availed of within five years from the date of the contract
implementing such decision. xxx”

Another remnant of a patriarchal mindset, the drafters made a distinction where

there should have been none. The preservation and that which would best further

the interest of the conjugal partnership should be the main concern with regard to

administration thereof, and there is no certainty that the decision of the husband

would serve this.

A recent study on gender diversity in the Board of Directors in publicly traded

corporations have shown that women are more risk-averse and thus more likely to

101
FAMILY CODE, Art. 225.
 50

focus in avoiding losses and to hold more conservative levels of capital. 102 Further,

among other findings, women are more likely to invest in a less aggressive and

sustainable manner than men, thus ‘supporting the argument that women have

intrinsic capabilities that make them equally, if not more, competent firm leaders

than men.’103 Yet in another study by cognitive neuroscientists, 104

in a series of

tests where men and women were put under stress, it was seen that when the

situation becomes more stressful, women tend to make more advantageous

decisions.

Consequently, in contrast to what is provided by our law, science would suggest

that women should oversee decision-making for the best interest of the conjugal

partnership. Hence, the preference given to the husband’s decision is unwarranted.

C. Revised Penal Code

Act No. 3815, otherwise known as the Revised Penal Code, embodying substantive

criminal law and is the basic law that defines criminal offenses and provides the penalties

for the commission of those offenses. The Revised Penal Code took effect on January 1,

1932, or more than a year after its approval on December 8, 1930. Despite several

102
Unite, Angelo A., Sullivan, Michael J., Shi, Ailyn A., De La Salle University, Gender Diversity in
Boards and Performance of Philippine Publicly Traded Firms: Do Women Matter? (2016)
103
Ibid.
104
Men vs Women: Who Makes Better Decisions?, 15 April, 2017,
https://www.brainscape.com/blog/2014/10/men-vs-women-who-makes-better-decisions/. Retrieved 11 May,
2017.
 51

amendments thereto, it is substantially the same code that was promulgated back in 1930,

replacing the old Penal Code which was based on the Spanish Penal Code of 1870. It is

touted as one of the Philippine’s most enduring legislation, its vaunted performance is

seemingly matched by a series of attempts to have it overhauled.

Rape

Rape in Philippine Jurisdiction originally punished and defined under Chapter two

under the title “Rape and acts of Lasciviousness.105 Article 335 has been repealed by R.A.

8343, otherwise known as the “Anti-Rape Law of 1997” which took effect on October 22,

1997. Thus, it is now 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 and now punished, defined and discussed under Articles 266-A until 266-

D, a discussion of each provision should be warranted.

"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:

105
Chapter Two
RAPE AND ACTS OF LASCIVIOUSNESS

Art. 335. When and how rape is committed. — Rape is committed by having carnal knowledge of a woman
under any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious; and
3. When the woman is under twelve years of age, even though neither of the circumstances mentioned in the
two next preceding paragraphs shall be present.
 52

"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.”

Under Article 266-A there are two ways of committing rape first, under the first

paragraph which is Rape via sexual intercourse and under second paragraph which is via

sexual assault.106

Reading of the first paragraph would lead us to interpret that the first mode of

committing rape or via sexual intercourse can only be committed by a male against a

female.107 Due to the use of the words “By a man who shall have carnal knowledge of a

woman” by the use of those words we could conclude that legislative intent behind the

first way of the commission of rape or via sexual intercourse can only be committed by a

male against a female. This is also explained in the case of People vs Selfaison 108 that

Penetration, even partial is necessary for the commission of rape.

106
People vs Soriano, 388 SCRA 140, 2002
107
Reyes, The Revised Penal Code, page 557, Eighteenth Edition, 2012
108
G.R. No. L-14732, January 28, 1961
 53

Second paragraph of Article 266-A or rape by sexual assault is a crime that can be

committed by a male or female and could have a male or female as a victim.

A good example of this mode of committing rape is the case of Ricalde vs

People109 Ricalde, then 31 years old is a distant relative and textmate of XXX110, then 10

years old. XXX invited Ricarde to their house and after dinner, XXX’s mother told

Ricalde to spend the night as it was late. He slept on the sofa while XXX slept on the

living room floor around 2:00 a.m., XXX awoke as he felt pain in his anus and stomach

and something inserted in his anus. He saw that Ricalde fondled his penis. XXX ran

toward his mother’s room to tell her what happened. He also told his mother that Ricalde

played with his sexual organ.

The Supreme Court in that case held that Rape under the second paragraph of

Article 266-A is also known as “instrument or object rape,” “gender-free rape,” or

“homosexual rape.” The gravamen of rape through sexual assault is “the insertion of the

penis into another person’s mouth or anal orifice, or any instrument or object, into another

person’s genital or anal orifice.”

109
G.R. No. 211002, January 21, 2015
110
Fictitious initials “XXX” represent the victim-survivor’s real name. Due to the need to withhold the
victim’s real name and other information that would compromise the victim’s identity.
 54

Although the Law and jurisprudence now punishes the commission of rape against

males and those committed by females, the proponents are of the opinion that the crime of

rape is far from being gender neutral. The fact that rape via sexual intercourse is

punishable by a reclusion perpetua111 meaning that the amount of imprisonment that

would be imposed is 20 years and 1 day to 40 years or in special cases death 112. Whereas

the second way of committing rape is only punishable by prison mayor113 meaning that the

amount of imprisonment that would be imposed is 6 years and 1 day to 12 years meaning

that the punishment is two whole degrees lower or less than half the length for Rape via

111
Article 266-B. Penalty. - Rape under paragraph 1 of the next preceding article shall be punished by
reclusion perpetua.
112
"Article 266-B. Penalty. –
"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.
113
"Article 266-B. Penalty.
- Rape under paragraph 2 of the next preceding article shall be punished by prision mayor.
 55

sexual assault compared to Rape via sexual intercourse. This is simply because the victim

was a male or that the perpetrator was a female.

While more progressive jurisdictions like the Kingdom of Spain for which we

copied our penal code or the United States of America give no distinction. This study will

cite the rape laws of the Kingdom of Spain and the State of California as comparison.

The Kingdom of Spain long abandoned the gender bias in the crime of rape. As

Articles 178, 179 and 180 of the Spanish Criminal Code114 so provides.

TITLE VIII
Felonies against sexual freedom and indemnity
CHAPTER I
On sexual assault
Article 178
Whoever offends against the sexual freedom of another
person, using violent or intimidation, shall be punished
for sexual assault with a sentence of imprisonment from
one to five years.

Article 179
When the sexual assault consists vaginal, anal or oral
penetration, or inserting body parts or objects into either
of the former two orifices, the offender shall be convicted
of rape with a sentence of imprisonment from six to
twelve years.

Article 180
1. The preceding conduct shall be punished with prison
sentences of five to ten years for assault pursuant to
Article 178, and from twelve to fifteen years for those of

114
Translated to English and published by the Minesterio de Justicia
 56

Article 179, when any of the following circumstances

concur.
a. When the violence or intimidation made are of
particularly degrading or humiliating nature;
b. When the acts are committed by a join action of two or
more persons;
c. When the victim is especially vulnerable due to age,
illness, handicap or circumstances, except for what is set
forth in article 183
d. When, in order to execute the offence, the offender has
availed himself of a superiority or relationship, due to
being the ascendant, descendent or brother or sister,
biological or adopted or in-law of the victim;
e. When the doer uses weapons or other equally dangerous
mean which may cause death or any of the inuries
foreseen in Articles 149 and 150 of this Code, without
prejudice to the relevant punishment of the death or
injuries caused
2. Should two or more of the above circumstances concur,
the penalties foreseen in this Article shall be imposed in
the upper half.

As can be observed the Spanish Penal code does not discriminate rape if it is executed by

a man or a woman as Article 178 simply uses the word “person” and “another person”

rather than the non-gender neutral words of “man” and “woman” in our own Penal Code.

Additionally the Spanish counter part of our rape laws provides the same

punishment whether the sexual assault consists of “vaginal, anal or oral penetration, or

inserting body parts or objects into either of the former two orifices” making it gender

neutral rather than giving different punishments if the act involves the male organ

inserting into the vaginal orifice of a person or “inserting his penis into another person's
 57

mouth or anal orifice, or any instrument or object, into the genital or anal orifice of

another person.”

The State of California also abandoned this gender bias in the crime of rape. This is

embodied in California Penal Code Sections 261, 261.5, 262 and 264.

“California Penal Code Section 261

(a) Rape is an act of sexual intercourse accomplished with a person
not the spouse of the perpetrator, under any of the following
circumstances:

(1) Where a person is incapable, because of a mental

disorder or developmental or physical disability, of giving
legal consent, and this is known or reasonably should be
known to the person committing the act. Notwithstanding
the existence of a conservatorship pursuant to the provisions
of the Lanterman-Petris-Short Act (Part 1 (commencing with
Section 5000) of Division 5 of the Welfare and Institutions
Code), the prosecuting attorney shall prove, as an element of
the crime, that a mental disorder or developmental or
physical disability rendered the alleged victim incapable of
giving consent.

(2) Where it is accomplished against a person's will by

means of force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the person or
another.

(3) Where a person is prevented from resisting by any

intoxicating or anesthetic substance, or any controlled
substance, and this condition was known, or reasonably
should have been known by the accused.
(4) Where a person is at the time unconscious of the nature
of the act, and this is known to the accused. As used in this
paragraph, “unconscious of the nature of the act” means
 58

incapable of resisting because the victim meets one of the

following conditions:
…..”

“Section 261.5
(a) Unlawful sexual intercourse is an act of sexual intercourse
accomplished with a person who is not the spouse of the
perpetrator, if the person is a minor. For the purposes of this
section, a “minor” is a person under the age of 18 years and an
“adult” is a person who is at least 18 years of age.
(b) Any person who engages in an act of unlawful sexual
intercourse with a minor who is not more than three years older or
three years younger than the perpetrator, is guilty of a
misdemeanor.
(c) Any person who engages in an act of unlawful sexual
intercourse with a minor who is more than three years younger
than the perpetrator is guilty of either a misdemeanor or a felony,
and shall be punished by imprisonment in a county jail not
exceeding one year, or by imprisonment pursuant to subdivision (h)
of Section 1170.”

“Section 262
(a) Rape of a person who is the spouse of the perpetrator is an act
of sexual intercourse accomplished under any of the following
circumstances:

(1) Where it is accomplished against a person's will by

means of force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the person or
another.

(2) Where a person is prevented from resisting by any

intoxicating or anesthetic substance, or any controlled
substance, and this condition was known, or reasonably
should have been known, by the accused.

(3) Where a person is at the time unconscious of the nature

of the act, and this is known to the accused. As used in this
paragraph, “unconscious of the nature of the act” means
incapable of resisting because the victim meets one of the
following conditions:
 59

….”

Section 261 of the California Penal code is merely the general definition of non-spousal

rape, while Section 262 is the definition of spousal rape. Like the Spanish Criminal Code

their code uses the word “person” rather than “man” or “woman” and does not

discriminate if the victim was a man or a woman nor the fact that the perpetrator was a

man or a woman as well. It only discriminates if the Rape was Spousal 115, Non-Spousal116

or Statutory117. Their code therefore provides the same punishment118 regardless of the

gender of the victim of the perpetrator. Our Rape law is rather archaic by comparison,

with regard to gender bias.

Additionally, the classification of man and woman in our rape law is invalid for

not passing the Rational Basis Test. Courts applying rational basis test seek to determine

115
California Penal Code Section 262
116
California Penal Code Section 261
117
California Penal Code Section 261.5
118
California Penal Code Section 264
(a) Except as provided in subdivision (c), rape, as defined in Section 261 or 262, is punishable by
imprisonment in the state prison for three, six, or eight years.
(b) In addition to any punishment imposed under this section the judge may assess a fine not to exceed
seventy dollars ($70) against any person who violates Section 261 or 262 with the proceeds of this fine to be
used in accordance with Section 1463.23. The court shall, however, take into consideration the defendant's
ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine
permitted under this subdivision.
(c)(1) Any person who commits rape in violation of paragraph (2) of subdivision (a) of Section 261 upon a
child who is under 14 years of age shall be punished by imprisonment in the state prison for 9, 11, or 13
years.
(2) Any person who commits rape in violation of paragraph (2) of subdivision (a) of Section 261 upon a
minor who is 14 years of age or older shall be punished by imprisonment in the state prison for 7, 9, or 11
years.
(3) This subdivision does not preclude prosecution under Section 269, Section 288.7, or any other provision
of law.
 60

whether a law is "rationally related" to a "legitimate" government interest.119 The

Government interest in rape laws are the following: primarily as a means to persons

against physical harm, emotional injury, and interference with sexual autonomy (the right

to choose the circumstances of sexual intimacy).120

But men are also victims of rape, studies from the U.S. Centers for Disease control

(2005) reported that 16% of men experienced sexual abuse by the age of 18. Additionally

these reports are also thought to be underestimates due to the barriers male survivors face

in the reporting process: the U.S. Department of Justice records an average of greater than

12,000 reported sexual assaults of men annually, and predicts that if unreported assaults

are included, the actual number of men who are sexually assaulted in the United States

each year is approximately 60,000 (U.S. Department of Justice, 1994).121 However data

regarding male rape are lacking here in the Philippines.

Male rape is as traumatizing on a man as on a woman. Like women, men who are

raped feel violated and ashamed and may become severely depressed or suicidal. They are

119
Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, page 139, 2009
120
Encyclopedia of Crime and Justice, 2002 The Gale Group Inc.
121
http://endsexualviolence.org/where-we-stand/male-victims . Retrieved June 24, 2017
 61

at increased risk for substance abuse, problems with interpersonal relationships, physical

impairments, chronic pain, insomnia and other health problems.122

However, men also face a challenge to their sense of masculinity. Many feel they

should have done more to fight off their attackers. Since they may believe that men are

never raped, they may feel isolated and reluctant to confide in anyone. Male rape victims

may become confused about their sexual orientation or, if gay and raped by a man, blame

their sexual orientation for the rape.123

Why are our Rape laws so feudal? It was originally copied from an 1870 law of

Spain and historically speaking, the purposes of rape law were more limited, and the law's

coverage was narrow. Rape law was long concerned, with protecting the chastity of

women. It traditionally focused on protecting property-like interests of men—the interest

of a father in the virginity (and thus the marriagability) of his daughter and the interest of a

husband in exclusive sexual access to his wife. Accordingly, vestiges of these narrow

conceptions of the law's purpose still survive today even with the passing of the “Anti-

122 Rabin, R. Men Struggle for Rape Awareness, New York Times, Jan. 23, 2012.
http://www.nytimes.com/2012/01/24/health/as-victims-men-struggle-for-rape-awareness.html. Retrieved
May 10, 2017.
123 Struckman-Johnson, C.; Struckman-Johnson, D. (1994). "Men pressured and forced into sexual

experience". Archives of Sexual Behavior

 62

Rape Law of 1997”.124 Hence, the classification of gender and the legitimate government

interest are not rationally related to each other.

Qualified, Simple Seduction, and Acts of Lasciviousness

These three crimes fall under Chapter three, namely “Seduction, Corruption of Minors,

and White Slave Trade” under Title Eleven, namely “Crimes Against Chastity” of Book

Two. These are governed by Articles 337, 338, and 339 of the Revised Penal Code.

Art. 337. Qualified seduction. — The seduction of a virgin over

twelve years and under eighteen 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 prision correccional in its minimum and
medium periods.

The penalty next higher in degree shall be imposed upon any

person who shall seduce his sister or descendant, whether or not
she be a virgin or over eighteen years of age.
Under the provisions of this Chapter, seduction is committed
when the offender has carnal knowledge of any of the persons
and under the circumstances described herein.

Art. 338. Simple seduction. — The seduction of a woman who is

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

Art. 339. Acts of lasciviousness with the consent of the offended

party. — The penalty of arresto mayor shall be imposed to punish
any other acts of lasciviousness committed by the same persons
and the same circumstances as those provided in Articles 337 and
338.

124
Encyclopedia of Crime and Justice, 2002 The Gale Group Inc.
 63

As can be observed, the key difference between Qualified and Simple Seduction are the

circumstances like virginity. The difference of Acts of Laciviousness with Seduction is

that in Seduction there is sexual intercourse.125

The crime of qualified seduction requires that the victim must be a virgin. The

virginity to which the Penal Code refers is not to be understood in so material a sense as to

exclude the idea of abduction of abduction of a virtuous woman of good reputation.126 As

held in the case of U.S. vs Casten127 “Virgin” within the meaning of the law does not

exclude a woman who had prior intercourse, it means a virtuous woman of good

reputation.

It is well to note that all three crimes cannot be committed against a man because

the laws specifically use the word “woman” in the case of simple seduction and “virgin”

in the case of qualified seduction as offended parties. Whereas acts of lasciviousness

makes reference to both.

Like in the case of the crime of rape, this study will once again compare our Revised

Penal code with the Spanish and Californian counterparts.

125
Reyes, The Revised Penal Code, page 933, Eighteenth Edition, 2012
126
Reyes, The Revised Penal Code, page 925, Eighteenth Edition, 2012
127
34 Phil 808, August 19, 1916
 64

The Kingdom of Spain, does not have a crime known as Seduction, whether simple

or qualified but its equivalent is the crime of sexual abuse. Like the crime of rape it has

long abandoned the gender bias in the crime of sexual abuse. As Articles 181 and 182 of

the Spanish Criminal Code so provides.

Chapter II
On sexual abuse
Article 181
1. Whoever, without violence or intimidation and without there being
consent, perpetrates acts against the sexual freedom or indemnity of
another person, shall be convicted of sexual abuse, with a sentence of
imprisonment from one to three years or a fine of eighteen to twenty
four months…
3. The same punishment shall be imposed when the consent is obtained
by the offender availing himself of a situation of manifest superiority
that deprives the victim of liberty.
4. In all the proceeding cases, when the sexual abuse consists of vaginal,
anal or oral penetration or inserting body parts or objects into either
of the former orifices, the offender shall be punished with a sentence
of imprisonment from for to ten years.

Article 182
1. Whoever, by deceit, engages in acts of a sexual nature with a person
over the age of thirteen and under the age of sixteen shall be
punished with a sentence of imprisonment from one to two years, or
a fine of twelve to twenty-four months.
2. When the acts consists of vaginal, or anal or oral penetration, or
inserting body parts or objects into either of the former two orifices,
the punishment shall be prison from two to six years.

As can be observed the Spanish Penal code does not require the victim be a “virgin”

or a “woman”, unlike our very own code. Nor does it use “sexual intercourse” but refers to

the acts as “vaginal, anal or oral penetration, or inserting body parts or objects into either
 65

of the former two orifices”. Therefore, men may be the offended party in a crime of sexual

abuse.

The State of California also abandoned this gender bias in the crime of seduction.

This is embodied in Californian Penal Code Section 266c.

California Penal Code

Section 266c. Every person who induces any other person to engage
in sexual intercourse, sexual penetration, oral copulation, or sodomy
when his or her consent is procured by false or fraudulent
representation or pretense that is made with the intent to create fear,
and which does induce fear, and that would cause a reasonable
person in like circumstances to act contrary to the person s free will,
and does cause the victim to so act, is punishable by imprisonment in
a county jail for not more than one year or in the state prison for
two, three, or four years.

The Californian Penal code does not use the word “virgin” or “woman” as well, but

merely refers to the offended party as “person” and the offender as “any other person.”

Thus, like the rape law, Seduction and Acts of lasciviousness with consent does

not pass rational basis test for the very same arguments.128 Further, the classification of

gender and the legitimate government interest are not rationally related to each other.

128
Applying rational basis test seek to determine whether a law is "rationally related" to a "legitimate"
government interest. The Government interest in rape laws are the following: primarily as a means to
persons against physical harm, emotional injury, and interference with sexual autonomy
 66

Thus, the proponents conclude that Articles 337, 338, and 339, referring to the crimes of

qualified seduction, simple seduction and Acts of lasciviousness with the consent of the

offended party of our Revised Penal Code law is gender biased and the purpose for the

classification no longer stands.

Consented and Forcible Abduction

Abduction in our jurisdiction means the taking away of a woman from her house or the

places where she may be for the purpose of carrying her to another place with intent to

marry or to corrupt her.129

Abduction, both Consented and Forcible Chapter Four, with a title named as such,

under Title Eleven, namely “Crimes Against Chastity” of Book Two. These are governed

by Articles 342 and 343 of the Revised Penal Code.

Art. 342. Forcible abduction. — The abduction of any woman against

her will and with lewd designs shall be punished by reclusion
temporal.
The same penalty shall be imposed in every case, if the female
abducted be under twelve years of age.
Art. 343. Consented abduction. — The abduction of a virgin over
twelve years and under eighteen years of age, carried out with her
consent and with lewd designs, shall be punished by the penalty of
prision correccional in its minimum and medium periods.

129
People vs. Crisostomo G.R. No. L-19034, February 17, 1923
 67

As can be observed, the key difference between Forcible and Consented Abduction is that,

Forcible Abduction must be against the will of the woman while Consented Abduction

must be against a virgin.

The crime of consented abduction like qualified seduction requires that the victim

must be a virgin, consequently has the same meaning of the word. The virginity to which

the Penal Code refers is not to be understood in so material a sense as to exclude the idea

of abduction of abduction of a virtuous woman of good reputation.130 As held in the case

of U.S. vs Casten131 “Virgin” within the meaning of the law does not exclude a woman

who had prior intercourse, it means a virtuous woman of good reputation.

We will once again compare our Revised Penal code with the Spanish and

Californian counterparts, but since Spain does not have an equivalent to the crime of

Abduction which is merely absorbed by its crime of Kidnapping or Illegal detention, as

the case may be we will just compare it with the Californian counterpart.

Abduction in most other jurisdiction means the crime of taking away of a person

by persuasion, by fraud, or by open force or violence. Therefore, this study will focus on

130
Reyes, The Revised Penal Code, page 925, Eighteenth Edition, 2012
131
34 Phil 808, August 19, 1916
 68

crimes that have interlocking elements of the crime of Abduction in our jurisdiction rather

than what is called the same.

The closest things to abduction in the Penal Code of the State of California are Sections

266, 266b, and 266c.

California Penal Code

266. Every person who inveigles or entices any unmarried female, of
previous chaste character, under the age of 18 years, into any house
of ill fame, or of assignation, or elsewhere, for the purpose of
prostitution, or to have illicit carnal connection with any man; and
every person who aids or assists in such inveiglement or enticement;
and every person who, by any false pretenses, false representation, or
other fraudulent means, procures any female to have illicit carnal
connection with any man, is punishable by imprisonment in the state
prison, or by imprisonment in a county jail not exceeding one year,
or by a fine not exceeding two thousand dollars ($2,000), or by both
such fine and imprisonment.

266b. Every person who takes any other person unlawfully, and
against his or her will, and by force, menace, or duress, compels him
or her to live with such person in an illicit relation, against his or her
consent, or to so live with any other person, is punishable by
imprisonment pursuant to subdivision (h) of Section 1170.

266c. Every person who induces any other person to engage in sexual
intercourse, sexual penetration, oral copulation, or sodomy when his
or her consent is procured by false or fraudulent representation or
pretense that is made with the intent to create fear, and which does
induce fear, and that would cause a reasonable person in like
circumstances to act contrary to the person s free will, and does
cause the victim to so act, is punishable by imprisonment in a county
jail for not more than one year or in the state prison for two, three,
or four years.
 69

As used in this section, fear means the fear of physical injury or

death to the person or to any relative of the person or member of the
person’s family.

Although the California Penal Code uses the word female in Section 265 and 266 uses the

words “female” and “man”. They also provide for the prosecution in Section 266b and

266c which does not discriminate gender.

The requisite of being a “woman” in laws against Abduction is invalid for not

passing the Rational Basis Test. Courts applying rational basis test seek to determine

whether a law is "rationally related" to a "legitimate" government interest. 132

Therefore, the classification of gender and the legitimate government interest are not

rationally related to each other. Nor does the rationale of consented abduction still stand,

but that is not the topic of this study.

D. Critique on Garcia vs. Drilon

One of the main issues in this case was the challenge to the constitutionality of Republic

Act (R.A.) 9262, entitled “An Act Defining Violence Against Women and Their Children,

Providing for Protective Measures for Victims, Prescribing Penalties Therefor, and for

Other Purposes,” or commonly known as ‘VAWC.’ The case stemmed from the ruling of

132
Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, page 139, 2009
 70

the trial court finding Jesus Garcia (Garcia), the petitioner in the case, as guilty of

committing domestic violence, physically, mentally, and economically, against his wife

Rosalie Jaype-Garcia and their children.133

In ruling against the petition of Garcia challenging the constitutionality of VAWC,

the Supreme Court used the rational basis test. Strange enough, in previous rulings,[134][135]

the Supreme Court has ruled that when laws deal with gender, the strict scrutiny test is

applied, a fact recognized by Justice Leonardo-De Castro in his concurring opinion. The

rational basis test merely requires that the classification in the statute reasonably relates to

the legislative purpose. The said test is a four-fold test which requires that the

classification be based on substantial distinctions which make real differences; it must be

germane to the purposes of the law; it must not be limited to existing conditions only, and

must apply equally to each member of the class.136

In discussing how the VAWC passed the rational basis test, the Supreme Court

cited the Senate deliberations on then Senate Bill No. 2723, which became the VAWC,

which showed that although the Sponsor, Senator Luisa Pimentel-Ejercito, had originally

proposed what the senator called "synthesized measure", namely, the "Anti-Domestic

133
Jesus C. Garcia vs. The Hon. Ray Alan T. Drilon, Regional Trial Court-Branch 41, Bacolod City, et al.,
G.R. No. 179267 (25 June, 2013).
134
Estrada v. Sandiganbayan, G.R. No. 148560, 19 November, 2001, Concurring Opinion, Mendoza, [J].
135
White Light Corporation, et al. vs. City of Manila, G.R. No. 122846, 20 January, 2009.
136
Ibid.
 71

Violence Act" and the "Anti-Abuse of Women in Intimate Relationships Act" – providing

protection to "all family members, leaving no one in isolation" but at the same time giving

special attention to women as the "usual victims" of violence and abuse, nonetheless, it

was eventually amended, and agreed upon that men shall be denied protection under the

law.137

Furthermore, the Supreme Court found that the VAWC rested on substantial

distinction based on the unequal power relationship between men and women, the fact that

women are more likely to be victims of violence, and the widespread gender bias and

prejudice against women.138 To bolster these three points, the Supreme Court reproduced

the writings of the former Chief Justice Reynato Puno who traced the history and social

context of gender-based violence, which went as far back as the Roman times, official

statistics which showed that women are the usual and most likely victims of violence, the

gender bias and prejudices against women in general which was exhibited even by our

own courts.139 Although the Supreme Court did acknowledge the existence of the

occurrence of domestic abuse and violence against men, it found that there were no

reliable estimates of the same because incidents thereof are relatively low and, perhaps,

many men will not even attempt to report the situation[140][141]

137
Ibid.
138
Ibid.
139
Ibid.
140
Ibid.
 72

Moreover, according to the Supreme Court, the existence of violence and abuse

against men will not render the VAWC invalid. It likened the same to a 1960142 ruling

wherein the Supreme Court upheld the validity of a city ordinance requiring drivers of

animal-drawn vehicles to pick up, gather and deposit in receptacles the manure emitted or

discharged by their vehicle-drawing animals in any public highways, streets, plazas, parks

or alleys but not drivers of non-vehicle-drawing animals which also traverse such roads

because “their number must be negligible and their appearance therein merely occasional,

compared to the rig-drawing ones, as not to constitute a menace to the health of the

community."

On being germane to the purpose of the law, the Supreme Court stated that the

VAWC satisfies this requirement because VAWC addresses violence committed against

women and children. As the State is bound under the Constitution and the provisions of

the Universal Declaration of Human Rights, the Convention on the Elimination of All

Forms of Discrimination Against Women and Convention on the Rights of the Child,

which the Philippines ratified, it shall exert efforts to address the violence against women

and children, which effort led to the VAWC.143

141
Dutton, Donald G.; Nicholls, Tonia L. (2005-09-01). "The gender paradigm in domestic violence
research and theory: Part 1—The conflict of theory and data". Aggression and Violent Behavior. 10 (6):
680–714.
142
People v. Solon, 110 Phil. 39, 41 (1960) as cited in Garcia vs. Drilon.
143
Garcia vs. Drilon
 73

Finally, the Supreme Court found that the classification is not limited to existing

conditions only, but to future conditions as well, for as long as the safety and security of

women and their children are threatened by violence and abuse and the law applies equally

to all women and children who suffer violence and abuse.144

Most of the concurring opinions discussed similar points to that of the ponencia.

The most notable, however, is that of Justice Leonen, to which the proponents fully

subscribe to and upon which the theory of this research hinges on as far as the VAWC is

concerned. First to put matters into proper context, the proponents do not deny the

historical fact of women’s travails not only in Philippine history but also around the world.

It is even conceded by the proponents that women are still predominantly the victims of

domestic violence.145 The research merely points out that, in this regard, violence has no

gender,146 hence our laws should be the same.

Justice Leonen voted to deny the petition as the petitioner in this case, Garcia, had

no standing being found to have abused his wife and therefore not a real party-in-interest

who will stand to be damaged by the application of VAWC if the same was not declared

unconstitutional. Be that as it may, Justice Leonen stated that the Supreme Court should
144
Ibid
145
‘Statistics on Violence Against Women,’ Philippine Commission on Women, pwc.gov.ph, 5 May, 2014,
http://pcw.gov.ph/statistics/201405/statistics-violence-against-filipino-women
146
Anne-Sophie, Rebner. ‘Violence has no gender?,’ News Activist, newsactivist.com, 24, March, 2015,
http://newsactivist.com/en/articles/changing-welfare-changing-states-comparative-social-policies-revisited-
gender/violence-has
 74

be open to realities which may challenge the ‘norm’ and that everybody is entitle to the

protection of our laws, to wit:

“Nevertheless, in a future case more deserving of our attention, we should

be open to realities which may challenge the dominant conception that
violence in intimate relationships only happens to women and children. This
may be predominantly true, but even those in marginal cases deserve
fundamental constitutional and statutory protection. We should be careful
that in correcting historical and cultural injustices, we may typecast all
women as victims, stereotype all men as tormentors or make invisible the
possibility that in some intimate relationships, men may also want to seek
succor against acts defined in Section 5 of Republic Act No. 9262 in an
Husband abuse may be an underreported form of family violence.
According to a Quezon City Police District Crime Laboratory chief, in his
10 years as medico-legal officer, he had only received three cases of men
complaining of spousal abuse.” [Citations omitted]

In the Senate deliberations as cited by the Supreme Court, Sen. Estrada stated that

women’s rights advocate expressed concern regarding including men being protected by

the VAWC.147 This same concern was voiced by Sen. Legarda, saying:

“Senator Legarda. xxx

As I said earlier, there are nameless, countless, voiceless women who have
not had the opportunity to file a case against their spouses, their live-in
partners after years, if not decade, of battery and abuse. If we broaden the
scope to include even the men, assuming they can at all be abused by
the women or their spouses, then it would not equalize the already
difficult situation for women, Mr. President. xxx” [Emphasis ours]

With all due respect to Sen. Legarda, it does not follow that the difficult situation

for women will not be equalized if the scope of the law would be broaden to include men.

147
CONGRESSIONAL RECORDS, Vol. III, No. 45, December 10, 2003, p. 43-44 as cited in Garcia v.
Drilon.
 75

First, it can be inferred in Sen. Legarda’s statement that by broadening the scope of the

law, the protection granted to women and their children would effectively be weakened,

which is merely speculative in nature and has no basis in law. Many of our laws apply

equally to both men and women but such fact does not affect the protection afforded to

our people. Some of our existing laws were even amended to cope with the realities of the

time. A concrete example of this, although the proponents have their reservation on the

same in the earlier part of this research, is the ‘Anti-Rape Law’ or R.A. 8353 which

expanded the definition of the crime of rape under Art. 266-A of the Revised Penal Code;

from formerly being committed only by a man who shall have carnal knowledge of a

woman to adding any person who sexually assaults any person.148 This was what Justice

148
R.A. 8353, ‘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
OTHER PURPOSES,’
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:
"Chapter Three
"Rape

"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.
 76

Leonen was warning the Supreme Court about being careful not to typecast women as

victims and men as tormentors.

It can also be inferred from Sen. Legarda’s statement that men cannot be victims of

abuse which has no basis in fact. According to a 2002 World Health Organization

Report,149 although women truly are predominantly on the receiving end of violence,

‘intimate partner violence occurs in all countries, irrespective of social, economic,

religious or cultural group’ and ‘women can be violent in relationships with men, and

violence is also sometimes found in same-sex partnerships.’ Justice Leonen himself cited

a local study150 which would dispute this statement of Sen. Legarda

This study151 surveyed six participants, all of whom were in intimate relationships

with women and suffered some form of abuse. Justice Leonen discussed portions of the

study as follows:

“Another recent study found the same underreporting but explored the
experiences of abuse in intimate relationships of six Filipino husbands.
Their experiences were described as follows:

"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. xxx”
149
Krug, Etienne G.; Dahlberg, Linda L.; Mercy, James A.; Zwi, Anthony B.; Lozano, Rafael (2002). World
report on violence and health.
150
J. J. Jurisprudencia, Coming out of the Shadows: Husbands Speak About Their Experience of Abuse in
Intimate Relationships, 40 PHILIPPINE JOURNAL OF PSYCHOLOGY NO. 2 (2007) as cited in Garcia vs.
Drilon, Concurring Opinion, Leonen [J].
151
Ibid.
 77

All the participants acknowledged that they experienced abuse, but

the forms differed from one husband to another. Four out of the six
participants admitted that their spouses’ abusive behavior would initially
start with verbal attacks and put-downs then would shift to physical abuse as
their verbal tussle intensified. xxx” [Citation omitted]

The study has shown that the abuse suffered by these men were not only physical,

but also emotional which led to depression; were not limited to the confines of their

homes, but extended to public areas; were not merely negligible physical injuries, but life-

threatening abuse which warranted medical attention. According to Justice Leonen, the

very same social construct that put men in power victimizes them as well, to wit:

“Most of the abuses cited by the participants happened in the confines of

their home, but could also happen in public places.
The constant threats, in the long term, affected the emotional and
psychological well-being of the participants. Four of the husbands felt that
their spouses were capable of carrying out their threats.
xxx
The physical abuse for some participants became life-threatening to the
extent that the injury incurred needed medical attention. Their spouses could
use weapons against them.
xxx
Emotional abuse co-existed with verbal and/or physical abuse. The
participants who were recipients of physical abuse were also emotionally
abused when they became susceptible to stress and threats of the abuser.
xxx
Social and cultural expectations on masculinity and male dominance urge
men to keep quiet about being a victim, adding to the unique experience of
male victims of domestic abuse. This leads to latent depression among boys
and men. In a sense, patriarchy while privileging men also victimizes them.”
[Citations omitted]
 78

Indeed, Sen. Estrada said in her comment on the proposed amendment to exclude

men and children that men also stand to be victimized. Sen. Estrada recognized the

apprehension that granting the same protection to men may be used to justify their abusive

behavior but countered that we have established procedures and standards in our courts

and no person can arbitrarily and whimsically file baseless complaints.

The proponents agree with Sen. Estrada, because if men, or any person for that

matter, abused the remedy provided by the law, if such was extended to them, they will

face two concepts known as; (1) abuse of rights, where a person is made liable for

damages when they exercise a legal right or duty in bad faith for the sole intent of

prejudicing or injuring another,152 and; (2) malicious prosecution, where a person brings

an action for damages maliciously and without probable cause in a criminal prosecution,

civil suit, or other legal proceeding.153 Further, the VAWC itself provides that before a

protection order of any kind (BPO, TPO, and PPO) may be issued, a determination or

hearing must be made if there is a basis to issue such protection orders. 154 Aside from this,

152
Hongkong and Shanghai Banking Corp., Limited v. Catalan, G.R. No. 159591, 18 October, 2004.
153
Ms. Violeta Yasonña, et al. v. Rodencio and Jovencio, both surnamed De Ramos, G.R. No. 156339, 6
October, 2004.
154
R.A. 9262, ‘Violence Against Women and their Children,’
xxx
SECTION 14. Barangay Protection Orders (BPOs); Who May Issue and How. - Barangay Protection
Orders (BPOs) refer to the protection order issued by the Punong Barangay ordering the perpetrator to desist
from committing acts under Section 5 (a) and (b) of this Act. A Punong Barangay who receives applications
for a BPO shall issue the protection order to the applicant on the date of filing after ex parte
determination of the basis of the application. xxx

SECTION 15. Temporary Protection Orders. – Temporary Protection Orders (TPOs) refers to the protection
order issued by the court on the date of filing of the application after ex parte determination that such
 79

the apprehension was not even open to the possibility that women themselves may use the

protection granted under the law to justify their abusive behavior.

According to the Sen. Estrada, the purpose of the law is to harmonize family

relations and uphold the family as the basic social institution, and that although there is an

unequal power relation between men and women, they nevertheless have the obligation to

uphold inherent rights and dignity of both the husband and the wife and their immediate

family members. Further, that even though Sen. Estrada wanted to focus only on women,

she was compelled to include other family members as a critical input after

consulting/meeting with various NGOs, experts, sports groups, and other affected

sectors.155 This is in line with the Constitutional provision that ‘the State values the

dignity of every human person and guarantees full respect for human rights.’156

However, as shown earlier, the proponents of the amendments eventually prevailed

upon Sen. Estrada to accept the proposed amendments and exclude men in the protection

order should be issued. xxx The court shall schedule a hearing on the issuance of a PPO prior to or on
the date of the expiration of the TPO. xxx The TPO shall include notice of the date of the hearing on the
merits of the issuance of a PPO. xxx

SECTION 16. Permanent Protection Orders. – Permanent Protection Order (PPO) refers to protection order
issued by the court after notice and hearing.

The court shall, to the extent possible, conduct the hearing on the merits of the issuance of a PPO in one
(1) day. xxx [Emphasis ours]

155
CONGRESSIONAL RECORDS, Vol. III, No. 45, December 10, 2003, p. 27 as cited in Garcia vs.
Drilon.
156
CONSTITUTION, Art. II, Sec.11.
 80

of the then Senate Bill No. 2723. Notable in the deliberations were the remarks of Sen.

Vicente Sotto III in proposing that only men should be excluded and not children, 157 to

wit:

“Senator Sotto. Mr. President, I am inclined to believe the rationale

used by the distinguished proponent of the amendment. As a matter of fact,
I tend to agree. Kung may maaabuso, mas malamang iyong babae kaysa
sa lalake. At saka iyong mga lalake, puwede na talagang magulpi iyan.
Okey lang iyan. But I cannot agree that we remove the children from this
particular measure.

So, if I may propose an amendment – xxx” [Emphasis ours]

The proposed amendments would show that these were merely out of personal

advocacies and beliefs by the proponent-Senators, as contrasted to the conclusion arrived

at by Sen. Estrada during consultations and meetings with various people, groups, and

sectors. The statements of Sen. Sotto may have been only intended as a joke, especially

considering that it was Sen. Sotto – a known actor/comedian – who said it, but it is

reflective of a collective belief that abusive behavior towards men in intimate

relationships do not warrant attention to be protected by our laws. Although the Supreme

Court did not delve into the wisdom of the law as shown by the Senate deliberations, they

seemingly mirrored this sentiment when they cited, as abovementioned, the case of People

vs. Solon by inferring that violence and abuse against men are negligible and occurrence

merely occasional to be considered as a menace to the community. However, to reiterate

157
CONGRESSIONAL RECORDS, Vol. III, No. 51, January 14, 2004, pp. 141-147 as cited in Garcia vs.
Drilon.
 81

what Justice Leonen stated, even those in marginal cases deserve fundamental

constitutional and statutory protection.

Another main point of Justice Leonen in his concurring opinion was that portraying

women as victims will not always promote gender equality before the law. It has the

unintended consequence of permanently perceiving all women as weak. He stated that

portraying women as victims renders empowered women and victimized men invisible.

He then postulated that violence in intimate relationships is not a gender issue, but rather a

power issue.158 As in reality, there is a possibility that intimate relationships can occur

between people of the same sex, there will be one who will take the dominant position in

the relationship. This reality is recognized by the VAWC as it covers violation of any

person who is in a dating relationship with a woman, regardless of sex.159 Therefore, as is

the main point of this critique, when laws are not gender-neutral, men are susceptible of

158
A. Detschelt, Recognizing Domestic Violence Directed Towards Men: Overcoming Societal Perceptions,
Conducting Accurate Studies, and Enacting Responsible Legislation, 12 KAN. J.L. & PUB. POL'Y 249
(2003) as cited in Garcia vs. Drilon, Concurring Opinion, Leonen [J].
159
R.A. 9262, ‘Violence Against Women and their Children,’
SECTION 3. Definition of Terms.- As used in this Act,
xxx
(e) "Dating relationship" refers to a situation wherein the parties live as husband and wife without
the benefit of marriage or are romantically involved over time and on a continuing basis during
the course of the relationship. A casual acquaintance or ordinary socialization between two
individuals in a business or social context is not a dating relationship.
 82

suffering double victimization: first, by their abusers, then second by the judicial

system.160

Justice Leonen conceded that for purposes of advocacy, highlighting the abuse of

women for being women may be important,161 as what happened when the VAWC was

still undergoing Senate deliberations, but doing so might not be progressive in the long

run. We quote the pertinent discussion:

“I accept that for purposes of advocacy and for a given historical period, it
may be important to highlight abuse of women qua women. This strategy
was useful in the passing of Republic Act No. 9262. It was a strategy that
assured that the problem of battered women and children in the context of
various intimate relationships becomes publicly visible. However, unlike
advocacy, laws have the tendency to be resilient and permanent. Its existence
may transcend historical periods that dictate effective advocacy. Laws also
have a constitutive function - the tendency to create false consciousness
when the labels and categories it mandates succeed in reducing past evils but
turn a blind eye to other issues.” [Citation omitted]

160
Garcia vs. Drilon, Concurring Opinion, Leonen [J], citing A. Detschelt, Recognizing Domestic Violence
Directed Towards Men: Overcoming Societal Perceptions, Conducting Accurate Studies, and Enacting
Responsible Legislation, 12 KAN. J.L. & PUB. POL'Y 249 (2003).
161
Garcia vs Drilon, Concurring Opinion, Leonen [J], citing x x x essentialism is, among other things, a tool
for redressing power imbalances, as when the group under study is seen by the dominant group as
illegitimate or trivial, or when a stigmatized group forms an oppositional identity to counter such negative
ideologies. Essentialism may therefore be a deliberate move to enable scholarly activity, to forge a political
alliance through the creation of a common identity, or to otherwise provide a temporarily stable ground for
further social action. Such uses of essentialism have been termed strategic essentialism (Spivak 1988) as
discussed in M. Buchotz, SOCIOLINGUISTIC NOSTALGIA AND THE AUTHENTICATION OF
IDENTITY, 401 (2003). See also M. Lloyd, BEYOND IDENTITY POLITICS: FEMINISM, POWER AND
POLITICS, 64-67 (2005). Similarly, D. Fuss, ESSENTIALLY SPEAKING: FEMINISM, NATURE AND
DIFFERENCE (1989).
 83

As an example, Justice Leonen cited two old cases[162][163] wherein the Supreme

Court concluded the ‘fact that the accused is shown to be a member of an uncivilized

tribe, of a low order of intelligence, uncultured, and uneducated’ should be taken into

account in deciding on the case. According to Justice Leonen, as this description of the

label and stereotype of ‘non-Christian tribe’ would later on be corrected by the

Constitution, law, and jurisprudence, the stereotype that only women can be considered as

victims may also evolve in the future.164

In conclusion, although the proponents do not dispute the result and findings of the

Supreme Court in the main decision, the proponents believe the courts and especially the

legislators should consider present conditions and intimate relationship complexities, not

only in heterosexual but also homosexual relationships, with respect to the issue of

violence. When granting protection against violence, violence itself should be the main

consideration and not gender.

162
People vs. Cayat, 68 Phil. 12 (1939) as cited in Garcia vs. Drilon, Concurring Opinion, Leonen [J].
163
Rubi vs. Provincial Board of Mindoro, 39 Phil. 660 (1919) as cited in Garcia vs. Drilon, Concurring
Opinion, Leonen [J].
164
Garcia vs. Drilon, Concurring Opinion, Leonen [J].
 CHAPTER V - CONCLUSION AND RECOMMENDATION
A. Conclusion

After an examination and analysis of relevant laws and jurisprudence, the proponents

conclude that certain gender-based classifications made under these laws open the risk of

deepening unreasonable gender bias. As Philippine society and culture is ever changing,

largely in tune with changes in other countries through the power of social media,

circumstances between men and women have also considerably changed.165

Amendments to some of the provisions discussed in this study, moreover, have failed to

adequately address the gender bias present in their language. With the application of

jurisprudence regarding issues on equal protection and the tests used therein, these laws

may no longer be considered constitutional due to the persistence of the said bias.

B. Recommendation

To avoid being struck down as unconstitutional, and equally protect the rights of both

genders in cases where bias should no longer exist, it is recommended by the proponents

that Articles 266-A, 337, 338, 342, and 343 of the Revised Penal Code, Articles 802, 803,

920, 1032, 1047, 1647, 2049, 2238, and 2259 of the new Civil Code, and Articles 124,

165
Yigit, M.F., Tarman, B. The Impact of Social Media on Globalization, Democratization, and
Participative Citizenship. http://www.jsse.org/index.php/jsse/article/view/84/1169. Journal of Social Science
Education, Vol. 12, Number 1. Retreived May 10, 2017.
 84

211, 213, and 225 of the Family Code should be amended to a more gender-neutral

language.

The recommended amendments are as follows:

"Article 266-A. Rape: When And How Committed. - Rape is committed:

"1) By any person who shall have vaginal, anal or oral penetration, or
inserting body parts or objects into either of the former two orifices of any
other person 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.”

The distinction between former paragraph 1 and 2 has now been removed and used the

words “person” rather than “man” or “woman”, this is more in line with the Spanish Rape

law.

“Art. 337. Qualified seduction. — The seduction of any person of good

reputation, who is over twelve years and under eighteen 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 person seduced, shall be punished by prision correccional in
its minimum and medium periods.
The penalty next higher in degree shall be imposed upon any person who shall
seduce his/her sister, brother or descendant, whether or not he/she be a
person of good reputation or over eighteen years of age.
Under the provisions of this Chapter, seduction is committed when the
offender shall have vaginal, anal or oral penetration, or inserting body parts
or objects into either of the former two orifices of the person describe under
the circumstances herein.”
 85

“Art. 338. Simple seduction. — The seduction of a person who is single, or a

widow or widower of good reputation, over twelve but under eighteen years of
age, committed by means of deceit, shall be punished by arresto mayor.”

The requirement of virgin has been removed and replaced with the words “person of good

reputation” and utilized more gender-neutral language.

“Art. 342. Forcible abduction. — The abduction of any person against his/her
will and with lewd designs shall be punished by reclusion temporal.
The same penalty shall be imposed in every case, if the person abducted be
under twelve years of age.”
Art. 343. Consented abduction. — The abduction of a person of good
reputation that is over twelve years and under eighteen years of age, carried out
with his/her consent and with lewd designs, shall be punished by the penalty of
prision correccional in its minimum and medium periods.”

The requirement of virgin has been removed and replaced with the words “person of good

reputation” and utilized more gender-neutral words.

Article 802. Either spouse may make a will without the consent of the other
spouse. (n)

Article 803. Either spouse may dispose by will of all his separate property as
well as his share of the conjugal partnership or absolute community property. (n)

Article 1047. Either spouse may repudiate an inheritance without the consent of
the other spouse. (995a)

Article 1647. If a lease is to be recorded in the Registry of Property, the

following persons cannot constitute the same without proper authority: either
spouse with respect to the other spouse’s separate real estate, the parents or
guardian as to the property of the minor or ward, and the manager without
special power. (1548a)

Article 2049. Either spouse may guarantee an obligation without the other
spouse’s consent, but shall not thereby bind the conjugal partnership, except in
cases provided by law. (n)
 86

Article 2238. So long as the conjugal partnership or absolute community

subsists, its property shall not be among the assets to be taken possession of by
the assignee for the payment of the insolvent debtor's obligations, except insofar
as the latter have redounded to the benefit of the family. If it is one of the
spouses who is insolvent, the administration of the conjugal partnership or
absolute community may, by order of the court, be transferred to the other
spouse or to a third person other than the assignee. (n)

Article 2259. The capacity of a married person to execute acts and contracts is
governed by this Code, even if his marriage was celebrated under the former
laws. (n)

The gender-neutral words ‘spouse,’ and ‘person’ is used instead of the gender-specific

terms such as ‘married woman,’ ‘husband,’ and ‘wife.’ However, it is better that Articles

802, 803, 1047, and 2259 be deleted for being superfluous.

Article 920. The following shall be sufficient causes for the disinheritance of
parents or ascendants, whether legitimate or illegitimate:

(1) When the parents have abandoned their children, or induced their
children to live a corrupt or immoral life, or attempted against their
virtue;xxx

Article 1032. The following are incapable of succeeding by reason of

unworthiness:

(1) Parents who have abandoned their children or induced their children
to lead a corrupt or immoral life, or attempted against their virtue;xxx

The gender-specific ‘daughter,’ is replaced with ‘children,’ to cover all children of both

sexes.

Art. 124. The administration and enjoyment of the conjugal partnership

shall belong to both spouses jointly. xxx
 87

Art. 211. The father and the mother shall jointly exercise parental authority
over the persons of their common children. xxx

Art. 213. In case of separation of the parents, parental authority shall be

exercised by the parent designated by the Court. The Court shall take into
account all relevant considerations, especially the choice of the child over
seven years of age, unless the parent chosen is unfit.

Art. 225. The father and the mother shall jointly exercise legal guardianship
over the property of the unemancipated common child without the necessity
of a court appointment. xxx

The phrases and sentences giving preference to either spouse or parent have been

deleted.

Furthermore, the proponents did not find any reliable data or statistics, other than

what was cited by Justice Leonen in his opinion, on violence or sexual offenses against

men in the Philippines. Therefore, the proponents also recommend further research and

data gathering on the occurrence of domestic violence and sexual offenses committed

against men in the country.

 88

List of References

I. Primary Sources

A. Substantive Law

The 1987 Constitution

The Civil Code of the Philippines

The Revised Penal Code

Republic Act No. 8353

Republic Act No. 9262

B. Jurisprudence

Jesus C. Garcia vs. The Hon. Ray Alan T. Drilon, Regional Trial Court-

Branch 41, Bacolod City, et al., G.R. No. 179267 (25 June, 2013).

People v. Solon, 110 Phil. 39, 41 (1960).

Herald Black Dacasin vs. Sharon Del Mundo Dacasin, G.R. No. 168785.

Jocelyn Pablo-Gualberto vs. Crisanto Rafaelito Gualberto V, G.R. No.

154994/G.R. No. 156254, 28 June, 2005.

Biraogo v. The Philippine Truth Commission of 2010, G.R. No. 192935 &

193036, December 07, 2010.

Briones vs Miguel G.R. No. 156343. October 18, 2004.

U.S. vs Casten, 34 Phil. 808.

 89

Victoriano v. Elizalde Rope Workerkers’ Union G.R. No. L-25246, Sept.

12, 1974.

Buck v. Bell, 274 U.S. 208 (1927).

Himagan v. People, G.R. No. 113811, October 7, 1994.

Tiu v. Court of Apppeals, G.R. No. 127410, January 20, 1999.

Dumlao v. Comelec, G.R. No. L-52245, January 22, 1980.

British American Tabaco v. Camacho, G.R. No. 163583, April 15, 2009.

White light v. City of Manila, G.R. No. 122846, January 20, 2009.

Mendoza, J., Concurring Opinion in Estrada v. Sandiganbayan, G.R. No.

148560, 19 November 2001.

Akbayan-Youth v. COMELEC 407 Phil. 618

Ermita-Malate Hotel and Motel Operations Association, Inc., v. Hon. City

Mayor of Manila 127 Phil. 306

Estrada v. Sandiganbayan G.R. No. 148560, 19 November 2001

Tanada v Angara, G.R. No. 118295. May 2, 1997

Pharmaceutical & Health Care Assn. of the Phil. v. Health Secretary Duque,

et al., G.R. No. 173034, 9 October, 2007.

People vs Soriano, 388 SCRA 140, 2002.

People vs Selfaison G.R. No. L-14732, January 28, 1961.

Ricalde vs People G.R. No. 211002, January 21, 2015 .

U.S. vs Casten 34 Phil 808, August 19, 1916.

 90

People vs. Crisostomo G.R. No. L-19034, February 17, 1923 .

Cresencio Libi and Amelia Yap Libi vs. Hon. Intermediate Appellate

Court,Felipe Gotiong and Shirley Gotiong, G.R. No. 70890, 18 September

1992.

Hongkong and Shanghai Banking Corp., Limited v. Catalan, G.R. No.

159591, 18 October, 2004.

Ms. Violeta Yasonña, et al. v. Rodencio and Jovencio, both surnamed De

Ramos, G.R. No. 156339, 6 October, 2004.

People vs. Cayat, 68 Phil. 12 (1939) .

Rubi vs. Provincial Board of Mindoro, 39 Phil. 660 (1919).

II. Secondary Sources

A. Books

The Revised Penal Code, Eighteenth Edition, Luis B. Reyes

The 1987 Constitution of the Republic of the Philippines: A Commentary,

2009 Edition, Joaquin Bernas

The Rights of the Person, Bernard Schwartz II

Observations on the new Civil Code, Justice J.B.L. Reyes,

Civil Code of the Philippines: Annotated and Commented – Book Three,

Vicente, J.,
 91

Jottings and Jurisprudence in Civil Law (Succession) (2010 ed.), Balane,

Rubén, F.

Wills and Succession: Better Explained (2nd ed.), Mison, Siegfred, B.

Commentaries and Jurisprudence on the Civil Code of the Philippines, Vol.

III, Tolentino, Arturo M.

Comments and Jurisprudence on Succession, Desiderio P. Jurado.

Wills and Succession, Ricardo Paras.

B. Journals and Articles

Iwanaga, Kazuki Women's Political Participation and Representation in

Asia: Obstacles and Challenges. Copenhagen: Nordic Institute of Asian

Studies

Gender: A Useful Category of Historical Analysis," American Historical

Review

Literature of the U.S. Men's Movements

National Study: More Men than Women Victims of Intimate Partner

Physical Violence, Psychological Aggression by Adjunct Faculty,

University of Phoenix School of Criminal Justice and Security

Anonuevo, Carlos Antonio Q. (September 2000), Overview of the Gender

Situation in the Philippines.

 92

Thirty Years of Denying the Evidence on Gender Symmetry in Partner

Violence: Implications for Prevention and Treatment, Murray A. Straus,

PhD

The Gender Paradigm in domestic violence research and theory by Donald

G. Dutton and Tonia L. Nicholls for the University of British Columbia

Hit like a Girl: Women Who Batter Their Partners by Theresa Porter

Effects of Sexual Assaults on Men: Physical, Mental and Sexual

Consequences by Richard Tewksbury for University of Louisville

The New Equal protection DR. MIRIAM DEFENSOR SANTIAGO,

Philippine Law Journal, volume 58 first quarter

Wroath, John, Until They Are Seven, The Origins of Women's Legal Rights,

(1998), Waterside Press.

Encyclopedia of Crime and Justice, 2002 The Gale Group Inc

Sobritchea, Carolyn Israel, University of the Philippines, AMERICAN

COLONIAL EDUCATION AND ITS IMPACT ON THE STATUS OF

FILIPINO WOMEN.

Unite, Angelo A., Sullivan, Michael J., Shi, Ailyn A., De La Salle

University, Gender Diversity in Boards and Performance of Philippine

Publicly Traded Firms: Do Women Matter? (2016)

 93

Dutton, Donald G.; Nicholls, Tonia L. (2005-09-01). "The gender paradigm

in domestic violence research and theory: Part 1—The conflict of theory and

data". Aggression and Violent Behavior.

J. J. Jurisprudencia, Coming out of the Shadows: Husbands Speak About

Their Experience of Abuse in Intimate Relationships, 40 PHILIPPINE

JOURNAL OF PSYCHOLOGY NO. 2 (2007)

A Detschelt, Recognizing Domestic Violence Directed Towards Men:

Overcoming Societal Perceptions, Conducting Accurate Studies, and

Enacting Responsible Legislation, 12 KAN. J.L. & PUB. POL'Y 249 (2003)

C. Foreign law

California Penal Code

Spanish Criminal Code

Hermesmann v. Seyer 847 P.2d 1273 (Kan. 1993).

SF v. State Ex Rel. TM 695 So. 2d 1186 (1996).

Bush v. Gore, 531 U.S. 98 (2000).

Boddie v. Connecticut, 401 U.S. 371 (1971).

Shapiro v. Thompson, 394 U.S. 618 (1969).

Goesaert v. Cleary 335 U.S. 464 (1948).

Michael M. v. Superior Court of Sonoma County, 101 S. Ct. 1200 (1981).

Craig v. Boren, 429 US 190 (1976).

 94

D. Website

World Economic Forum, Gender Gap Index Delfin,

Claire. Ever heard of battered husbands

https://www.whitman.edu/academics/departments-and-programs/gender-

studies

Dr. Lupri, E., Dr. Grandin, E. Intimate Partner Abuse against Men.

https://web.archive.org/web/20090104074211/http://www.phac-

aspc.gc.ca/ncfv-cnivf/familyviolence/pdfs/Intimate_Partner.pdf. Retrieved

May 10, 2017.

Black, Michele C., et al., National Intimate Partner and Sexual Violence

Survey, http://www.cdc.gov/ViolencePrevention/pdf/NISVS_Report2010-

a.pdf

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violence on video, http://fox8.com/2015/09/22/watch-army-ranger-uses-

gopro-to-catch-wifes-domestic-violence-on-video

Kassie, Emily, Male Victims Of Campus Sexual Assault Speak Out ‘We’re

Up Against A System That’s Not Designed To Help Us,’

http://www.huffingtonpost.com/2015/01/27/male-victims-sexual-

assault_n_6535730.html

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 95

Saldua, Adrianne Dianne Isabella R., ‘The Role of Women from Pre-

Historic to Spanish Era,’

https://tonkshistory.wordpress.com/2012/02/22/the-role-of-women-from-

pre-hispanic-to-spanish-era/

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https://en.wikipedia.org/wiki/Tender_years_doctrine.

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better-decisions/

Anne-Sophie, Rebner. ‘Violence has no gender?,’ News Activist,

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comparative-social-policies-revisited-gender/violence-has

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