Atty. Gerard Ace J.

Pelare

Regulative Love, Sex & Marriage

Sex and the Law

Related crimes under the Revised Penal Code and Special Laws
I. Sources
The Philippine Legal System consists of Civil, Common, Islamic, and many
other Customary laws. A heavy influence of the Christian values played a
huge part, but in many other Muslim communities the Sharia Law especially
applies.
A. Revised Penal Code
B. Civil Code
C. Sharia Law – with the enactment of P.D. 1083, also known as code of
Muslim Personal laws of the Philippines, in cases where there is conflict
between Secular Laws and Muslim Personal Laws, the “latter shall be
construed to carry out the former.”
D. IPRA Law - officially designated as Republic Act No. 8371, is a
Philippine law that recognizes and promotes the rights of indigenous cultural
communities and indigenous peoples in the Philippines.

II. Age of Sexual Consent

A. Different Sex (Male to Female / Female to Male)
-The age of sexual consent for both Males and Females is 12 years of age.
Paragraph 1 of Article 266A of Republic Act 8353 states that rape will
be committed when a man has carnal knowledge of a woman under the
age of 12 or when a person under the age of 12 is subjected to an act of
sexual assault, having had a penis inserted into his/her mouth or anal
 orifice or any instrument/object inserted into his/her genital or anal
orifices.
a. Republic Act No. 8353 (The Anti-Rape Law of 1997), Chapter Three,
Rape, Article 266-A.
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.

b. Are there defenses/exceptions?

-None

c. Could Customary and/or Religious Law Apply?

-No

B. Same Sex (Male to Male / Female to Female)

- Currently there is no specific Philippine law that explicitly covers same
sex.
- Ratio Legis: the age of sexual consent for both Males and Females is 12
years of age.
III. Adult Sex Workers
A. What approach is taken?
- Selling and buying sexual services criminalized
- Sex work is illegal in the Philippines. Any person who is wandering in
public places selling sex or any person who associates with pimps or
visits such places without a legitimate purpose is subject to
criminalization.
- Profiting from sex work is also a crime (Article 341)
- Sources:
> The Revised Penal Code of Philippines, Chapter 2, Offences
Against Decency and Good Customs, Art. 202. Vagrants and
prostitutes; penalty.
> Article 341 White slave trade.

B. Partial/total criminalization or an other punitive regulation – which

acts are criminalized and how severe are the punishments?
- Penalties for sex work under the vagrancy provision are up to 30 days
imprisonment or a fine for a first offence, and up to 6 months imprisonment
for repeat offenders.

C. Could customary and/or religious law apply?

- No CRL can be applied
- The IPRA and the Code of Muslim Personal laws do not extend to the
commission of crimes.

IV. Rape
A. Republic Act No. 8353 (The Anti-Rape Law of 1997), Chapter Three,
Rape, Article 266-A.
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.

B. Marital Rape
a. Is Marital Rape Punishable by Law?
- YES! (People of the Philippines vs. Edgar Jumawan, G.R. No. 187495,
21 April 2014)
- In 2014, the Philippine Supreme Court affirmed the conviction of a
husband accused of sexually assaulting his wife.
- Therefore, the provisions of Republic Act No. 8353, The Anti-Rape
Law of 1997, Chapter Three, Article 266-A. Rape, extends to husbands
who commits the offense under any circumstances mentioned in
paragraph 1 thereof against their wives.

b. Burden of Proof – is it the same or different from rape outside of

marriage?
- Evidence of physical resistance or incapability to give valid consent are
acceptable.
 Republic Act No. 8353, The Anti-Rape Law of 1997, Chapter
Three, Article 266-D.
Presumptions:
Any physical overt act manifesting resistance against the act of rape in
any degree from the offended party, or where the offended party is so
situated as to render her/him incapable of giving valid consent, may be
accepted as evidence in the prosecution of the acts punished under
Article 266-A.

c. Severity of punishment for marital rape – is it the same or different from

rape outside marriage?
- The punishment for rape is “prison mayor” or imprisonment for life
unless aggravating circumstances exist in which the death penalty is
imposed. If the parties are currently married when the rape occurs, the
punishment should be the same. (Article 266-B).
- However, if the offender marries the victim after the rape, the
punishment is extinguished. Furthermore, if the parties are currently
married and the victim forgives the offender, the penalty will be
extinguished. (Article 266-C).

d. Could customary and/or religious law apply?

- CRL applies
- Polygamy, the wife as the husband’s chattel, and deferential behavior
of women in the presence of men are still strong values in the Muslim-
dominated areas. The Muslim ideals of feminine behavior still produce a
dependent, inferior, passive, and obedient woman.

C. Rape of Sex Workers

- In the eyes of the law, people in the sex trade are both criminals and
victims.
 - Therefore, the provisions of Republic Act No. 8353, The Anti-Rape Law
of 1997, Chapter Three, Article 266-A. Rape, extends to those who
commits the offense under any circumstances mentioned in paragraph 1
and 2 thereof against their sex workers, regardless of their gender.
- Burden of proof - Evidence of physical resistance or incapability to give
valid consent are acceptable. (Republic Act No. 8353, The Anti-Rape Law
of 1997, Chapter Three, Article 266-D.)

V. Adultery and Concubinage as a Sexual Criminal Offense

A. How committed?
- Any married woman who has sexual intercourse with a man who is not
her husband is guilty of adultery. A man who knows that a woman is
married and has a sexual intercourse with her is also guilty. (Art. 333. Who
are guilty of adultery, RPC)
- A married man who “keeps a mistress in the conjugal dwelling” or who
has “sexual intercourse under scandalous circumstances with a woman who
is not his wife” or “cohabit(s) with her in any other place” is guilty of
concubinage. The woman is also guilty. (Art. 334. Concubinage, RPC)

B. Burden of proof?
- Adultery can only be committed by a married woman and the man who is
not her spouse. (Art. 333. Who are guilty of adultery, RPC)
- Concubinage is committed by a married man and a woman who is not his
spouse. (Art. 334. Concubinage, RPC)

C. Severity of Punishment?
- Adultery is punished by minimum and maximum periods of prison time
for each act of sexual intercourse.
- Punishments are mitigated if the person guilty of adultery was abandoned
without justification.
 - Concubinage receives a lower penalty of minimum to medium prison
terms (1 count for something that may have lasted for 10 years). The
unmarried woman receives the punishment of destierro (prohibition from
going certain places).

D. Could customary and/or religious law apply?

- CRL applies (Estrada v. Excritor)
- A case for immorality was filed against a married woman who has been
living in with a man who was married to another woman. She argued that
the elders of her Church had given their blessing to her relationship and
that she and the man had entered into a religious pledge declaring
faithfulness before their Church. The woman was not deemed immoral,
which is a ground for removal from government service under the
Administrative Code, on the ground of religious freedom.
- If the case was for adultery, and the defense was freedom of religion, this
could be an exception the general rule that criminal law is applicable to all
who live or sojourn in the Philippines and that CRL is not applicable to
criminal law cases.

VI. Crimes committed in the name of honour

A. Does the law provide for a complete defense to or mitigation of
sentences for gender-based violence offenses based on honour, passion,
provocation, loss of control or other similar factors?
- There is a full defense for physical injuries caused by a spouse (or parent
of a person under 18) who kills their spouse and/or their partner if he/she
finds them in the act of sexual intercourse. (Article 247).
- There is mitigation of the sentence (from the death penalty to destierro) if
a spouse (or parent of a person under 18) kills their spouse and/or partner if
he/she finds them in the act of sexual intercourse (Article 247). Except
under this circumstance, the killing of a spouse is an aggravated offense
(parracide), punished with the death penalty.
 - Circumstances which mitigate criminal responsibility include “sufficient
provocation...immediately preceded the act” and acting “upon an impulse
so powerful as naturally to have produced passion of obfuscation”. It is
unclear if these factors are used in cases of gender based violence. (Article
13)
- Whether the offended party is a spouse should be taken into account as an
“alternative circumstance” in sentencing. The Penal Code does not specify
whether it is aggravating or mitigating. (Article 15).

VII. Republic Act No. 9775 - Anti-Child Pornography Act of 2009

A. Child Pornography
- “Child pornography” refers to any representation, whether visual, audio,
or written combination thereof, by electronic, mechanical, digital, optical,
magnetic or any other means, of child engaged or involved in real or
simulated explicit sexual activities (Section 3, b. Child pornography)
> “Grooming” refers to the act of preparing a child or someone who the
offender believes to be a child for sexual activity or sexual relationship
by communicating any form of child pornography. It includes online
enticement or enticement through any other means. (Section 3, h.
Grooming)
> “Luring” refers to the act of communicating, by means of a computer
system, with a child or someone who the offender believes to be a child
for the purpose of facilitating the commission of sexual activity or
production of any form of child pornography. (Section 3, i. Luring)

VIII. Legal Implications of Technology and the Digital Age

A. Rules and Regulations Implementing Republic Act No. 10175,
Otherwise Known as the “Cybercrime Prevention Act of 2012”
- Cybersex refers to the willful engagement, maintenance, control or
operation, directly or indirectly, of any lascivious exhibition of sexual
organs or sexual activity, with the aid of a computer system, for favor or
consideration. (Rule 1, Section 3, q. Cybersex)
> The willful engagement, maintenance, control or operation, directly or
indirectly, of any lascivious exhibition of sexual organs or sexual
activity, with the aid of a computer system, for favor or consideration.
Any person found guilty cybersex shall be punished with imprisonment
of prision mayor, or a fine of at least Two Hundred Thousand Pesos
(P200,000.00), but not exceeding One Million Pesos (P1,000,000.00), or
both.
> Cybersex involving a child shall be punished in accordance with the
provision on child pornography of the Act. (R.A. No. 9775, Anti-Child
Pornography Act of 2009)
> Where the maintenance, control, or operation of cybersex likewise
constitutes an offense punishable under Republic Act No. 9208, as
amended, a prosecution under the Act shall be without prejudice to any
liability for violation of any provision of the Revised Penal Code, as
amended, or special laws, including R.A. No. 9208, consistent with
Section 8 hereof.