The Anti–Rape Law of 1997

Republic Act 8353

PSUPT JAIME RODRIGO L LEAL, MD

Ford Foundation International Fellow
in Forensic Science
University of Western Australia
 Rape is a crime of violence
 It happens to women as a gender (gender-based
violence)
 Rape is life-threatening; there is danger to life and limb
– Many do not recognize that the woman is placed in a life-
threatening situation hence the dismissals in the
preliminary investigation stage and acquittals in court
– Victim blaming
• She asked for it; she dressed provocatively
• vs. 6–year old girl who was raped
• “Young, innocent, naïve, barrio lass”
 RA 8353
“An Act Expanding the Definition of the Crime
of Rape, Reclassifying the Same as a
Crime Against Persons, Amending for the
Purpose Act 3185, as Amended, Otherwise
Known as the Revised Penal Code, and for
Other Purposes.”
 Expanding the Definition
of the Crime of Rape

 Old Law : CARNAL KNOWLEDGE

 RA 8353: Two Kinds of Rape

– Rape by carnal knowledge
– Rape by sexual assault
 Forms of Rape
 Rape by CARNAL KNOWLEDGE
(Insertion of PENIS into the VAGINA)

Offender: Male
Offended: Female
 Carnal Knowledge
 Carnal knowledge of a female was one of the
1st terms used to connote sexual violence
 Defined as penile-vaginal penetration

 Black’s Law Dictionary: “coitus; copulation; the

act of a man having sexual bodily connections
with a woman; sexual intercourse”
 Carnal Knowledge
 In People vs. Quinanola (G.R. No. 126148, 05 May 1999)
the Court said that carnal knowledge is unlike the
traditional connotation of sexual intercourse, but this
was made in reference to the issue of whether full
penetration of the vagina is required:
In the context it is used in the Revised Penal Code,
“carnal knowledge,” unlike its ordinary connotation of
sexual intercourse, does not necessarily require that the
vagina be penetrated or that the hymen be ruptured. The
crime of rape is deemed consummated even when the man’s
penis merely enters the labia or lips of the female organ…
 Carnal Knowledge
 The problem with using the term “sexual
intercourse” is that it connotes mutuality and thus
serve to confuse. Rape is rape and sexual
intercourse is sexual intercourse; in consensual
sexual relating, one will never use the word rape,
and no one who has been raped thinks of her
experience as sexual intercourse or sex. So why
use “sexual intercourse” to refer to a violent act
that is rape?
 Cases
 The Supreme Court has held that penetration of
the penis by entry into the lips of the female organ
even without rupture or laceration of the hymen
suffices to warrant conviction for rape (People vs. De
Guia, 185 SCRA 336)
 Laceration of the hymen is not necessary to prove
the consummation of the crime of rape (People vs.
Tumalad, 188 SCRA 203)
 Absence of extensive abrasions on the vaginal wall
does not rule out rape, the slightest penetration is
enough (People vs. Cervantes, 222 SCRA 365)
 Rape by SEXUAL ASSAULT
– Insertion of PENIS into the MOUTH or ANAL
ORIFICE of another person
Offender: Male
Offended: Male or Female

– Insertion of ANY OBJECT or INSTRUMENT

into the GENITAL or ANAL ORIFICE of
another.
Offender: Male or Female
Offended: Male or Female
 Is Rape Committed by Using
a Finger as “Instrument or Object”?
 “Object” is synonymous to “thing,” and that the
human finger is definitely a ‘thing.” Thus, a
violation of the body orifices by the fingers is
within the expanded definition of rape under RA
8353. Excluding the insertion of a finger or of
fingers into the genital or anal orifice of another
from the definition of rape would be unintelligible,
arbitrary and capricious delimitation of what the
law had set out to expand (Obana, et. al. vs. Soriano, et.
al., CA-G.R. SP No. 60553)
 Is Rape Committed by Using
a Finger as “Instrument or Object”?
 Appellant could have been held liable for
“instrument or object rape” under RA 8353 when
he inserted his tongue and finger into her
daughter’s vaginal orifice. Luckily for him, at the
time that he committed such act, “instrument or
object rape” was not yet punishable (People vs.
Silvano, 309 SCRA 362 [1999])
 Insertion of one’s finger into the genitalia of
another constitutes “rape through sexual assault”
(People vs. Soriano [G.R. No. 142779-95] & People vs. Palma
[G.R. No. 148869-74])
 Circumstances under which
rape is committed:
 Through force, threat or intimidation
 When the offended party is deprived of reason or
otherwise unconscious
 By means of fraudulent machinations or grave
abuse of authority
 When the offended party is under 12 years or is
demented, even though none of the circumstances
mentioned be present.
 FORCE, THREAT OR INTIMIDATION
 Force or intimidation in rape is a relative term,
depending not only on the age, size and strength of the
parties but also on their relationship with each other.
 Notably, the law does not impose a burden of proving
resistance on the rape victim but in practice courts
always examine the actuations of the victim before,
during and after the alleged rape in determining the
existence of force or intimidation.
 RA 8353 inserted the word “threat” between the words
“force” and “intimidation” to codify case law.
 “Threat” – in situations where there was no physical
force or violence but the perpetrator was able to
coerce the victim by inducing fear
 FORCE, THREAT OR INTIMIDATION

Evidence of lack of consent:

 Any physical overt act in any degree by the
offended party manifesting resistance to the
act of rape
 Situation is such that the offended party is
rendered incapable of giving valid consent
FORCE, THREAT OR INTIMIDATION

But where there is no finding of

consent, or where evidence is
insufficient to prove that there was force
or intimidation or that the act was
committed against the will of the woman,
must a conclusion follow that there was
consent in conformity with the
presumption of innocence?
FORCE, THREAT OR INTIMIDATION

Corollary to this is the question of what

is sufficient expression of lack of consent
in rape. Will a “no” suffice? Pleading by the
woman? Running around a locked room?
Shouting? Crying? Or must there be
physical struggle? If there was physical
struggle, how much of it should suffice as
expression of lack of consent?
FORCE, THREAT OR INTIMIDATION
In many rape prosecutions, the sufficiency of
force becomes a critical issue. Again, what
is sufficient force? Do courts consider
pinning down the victim using the
perpetrator’s body weight enough? Pushing
down? Using knees or hands to forcibly part
the legs? Grabbing? Boxing? Covering the
mouth? Or must any of these be
accompanied by something greater to meet
the requirement of force?
FORCE, THREAT OR INTIMIDATION

The Supreme has held in many cases

that force and intimidation are relative. They
depend on the circumstances, the size, age
and strength of the parties and their relation
to each other.

(People vs. Nitafan, G.R. No. 86640, 25 January 1991)

 Offended Party is
Deprived of Reason or
is Otherwise Unconscious
 Deprived of Reason
– Insane / Feeble-minded
– Mental abnormality / deficiency / disorder
 Need not be complete deprivation of reason

 Unconscious
– Asleep
– Drugged
– Sick
 Lack of Consent in Rape Cases
People vs. Salarza
 People vs. Salarza may well be a treatise on what
constitutes “consent” in rape cases. In that case, the
majority opinion of the Court acquitted the accused
because the complainant was “half asleep” when the
accused committed his acts and she was conscious of
what was being done to her although she claimed that
she thought the person was her boyfriend.
 The dissenting opinions given by then Associate
Justices Florenz Regalado and Hilario Davide Jr.
reflect unusual sensitivity and keen discernment of the
psycho-social issues involved in “consent.”
 Lack of Consent in Rape Cases
People vs. Salarza
 When a woman is “deprived of reason” or is
“unconscious,” she is deemed to have “no will,” as
distinguished from the first circumstance where force or
intimidation is used, in which case her will “is nullified or
destroyed,” or that it was committed against her will…
The crux of the matter then is the construction and
interpretation of the word “unconscious.” I submit that
since both “being deprived of reason” and “unconscious”
are founded on absence of will to give consent intelligently
and freely, the term “unconsciousness,” then, should not be
tested by a mere physical standard, i.e., whether one is
awake or asleep, conscious or alert.
(Dissenting opinion of CJ Davide in People vs. Salarza, G.R. No.
117682, August 18, 1997)
 Lack of Consent in Rape Cases
People vs. Salarza
 Rather, the inquiry should likewise determine whether
the victim was fully informed of all considerations so as
to make a free and informed decision regarding the grant
of consent. It is only through this two-tiered test that a
holistic appraisal of consent may be had.

(Dissenting opinion of CJ Davide in People vs. Salarza, G.R.

No. 117682, August 18, 1997)
 Lack of Consent in Rape Cases
People vs. Salarza
 In our jurisprudence, carnal knowledge of a sleeping
woman is rape (Pp. vs Dayo, 51 Phil. 102 [1927]; Pp. vs. Corcino,
53 Phil. 234 [1929]; Pp. vs. Caballero, 61 Phil. 900 [1935]; Pp. vs.
Conde, 322 Phil. 757 [1996]), because in that state the woman
is completely unconscious, both physically and mentally.
Sleep, being the naturally or artificially induced state of
suspension of sensory and motor activity (Pp. vs. Conde,
supra, at 767), obviously deprives a woman of the ability to
consent.

(Dissenting opinion of CJ Davide in People vs. Salarza, G.R.

No. 117682, August 18, 1997)
 Lack of Consent in Rape Cases
People vs. Salarza
Complainant was expecting her boyfriend’s momentary return,
then she fell asleep; she was slightly aroused by the
preliminaries for coitus which she and her boyfriend had been
indulging in and, in the dark with nothing to warn her otherwise,
in her drowsy state of mind she submitted to the person she
thought was her boyfriend.
She is now faulted for not exercising that degree of diligence
necessary to detect any strategy of an impostor, otherwise the
latter shall be rewarded for his success. The responsibility for the
sexual assault is laid at the door of the victim for not detecting
and preventing it from happening, and not upon the felon who
schemed and caused the event to happen.
(Dissenting opinion of Justice Florenz Regalado in People vs. Salarza, G.R.
No. 117682, August 18, 1997)
 Fraudulent Machination /
Grave Abuse of Authority
 Fraudulent Machination
– Insidious words or machinations used to induce the
victim to act in a manner which would enable the
offender to carry out his design
– Promises of marriage

 Grave Abuse of Authority

– Offender has moral authority / ascendancy over the
offended party
 Incest (Father to daughter)
 Stepfather to stepdaughter
 Godfather to goddaughter
 Offended Party is
Under 12 Years of Age

The law does not consider the consent to

the sexual act, given by a person under 12
years of age, to be voluntary  does not
have a will of his / her own.
 Cases
 Penetration = mere touch of the penis on the
labia
 Intimidation = knife, gun; father-daughter
 Demented = insane
 Deprived of reason or Unconscious = mental
retardation, drugs, asleep
 Insertion of finger into the genital or anal orifice is
considered rape by sexual assault
 Failure to shout or offer tenacious resistance
does not make it voluntary
 The Anti–Rape Law of 1997:
Changes and Issues
* Three Major Changes in the law
 Reclassification of rape from a crime against chastity to a
crime against persons
 The expansion of the definition of rape to include acts
other than penile penetration of the vaginal orifice
 Implicit recognition of marital rape

* Other salient features

• Deletion of Frustrated Rape
• Some lowering of penalties
• Addition of certain aggravating and qualifying
circumstances
• Evidentiary presumptions in favor of the rape victim
 Crime Against Persons
 Old law: Crime against chastity
– Gender bias  “virginity” and the “sexual history” of
victims
– Prostituted women, sexually active or even married
women  difficulty proving rape through force or
intimidation due to their sexual history or experience
– Private crime  pardonable
– Complaint filed only by victim & family
 RA 8353: Crime against persons
– Significance: State views rape “no longer as a sexual
crime but as a violation of women’s human rights
– Crime against personhood, regardless of “chastity”
– Public crime  pardon against public policy
 Except: subsequent marriage & pardon w/n valid marriage
– Complaint may be filed by anybody
 Marital Rape
 This is the most debated provision during the long
process of enacting RA 8353
 Rape: essence is lack of consent
 Old law: no rape in marriage, except if legally
separated
 RA 8353: Marital rape regardless of status of
marriage
– Legal husband  offender: subsequent forgiveness of
the wife extinguishes criminal action / penalty
 Exception: Marriage void ab initio
 Deletion of Frustrated Rape
 The Supreme Court ruled that rape is
consummated from the moment there is carnal
knowledge.
 Thus, there is no crime of frustrated rape in the
Philippines.
 Rape is merely attempted if its commission was
not completed due to circumstances other than the
voluntary act of the accused.
 Deletion of Frustrated Rape
People vs. Orita
(G.R. No. 88724, April 3, 1990)

Orita was charged of raping his 19 year old victim. The

RTC convicted him of FRUSTRATED RAPE. On appeal,
the Court of Appeals modified the ruling of the lower
court and convicted Orita of consummated rape.
The SC agreed with the CA and convicted Orita of
consummated rape. It held that THERE IS NO CRIME OF
FRUSTRATED RAPE.
“Clearly, in the crime of rape, from the moment the
offender has carnal knowledge of his victim, he actually attains
his purpose and, from that moment also all the essential
elements of the offense has been accomplished.”
 Deletion of Frustrated Rape
People vs. Orita
(G.R. No. 88724, April 3, 1990)

“Nothing more is left to be done by the offender, because

he has performed the last act necessary to produce the
crime. Thus, the felony is CONSUMMATED. In a long
line of cases, we have set the uniform rule that for the
consummation of rape, perfect penetration is not
essential. Any penetration of the female organ by the
male organ is sufficient. Entry of the labia or lips of the
female organ, without rupture of the hymen or laceration
of the vagina is sufficient to warrant conviction.”
 Deletion of Frustrated Rape
People vs. Orita
(G.R. No. 88724, April 3, 1990)

“Necessarily, rape is ATTEMPTED if there is no

penetration of the female organ because not all acts of
execution was performed. The offender merely
commenced the commission of a felony directly by overt
acts.”

“Taking into account the nature, elements and manner of

execution of the crime of rape and jurisprudence on the
matter, it is hardly conceivable how the frustrated stage
in rape can ever be committed.”
 Evidentiary Presumption
in Favor of the Rape Victim
 “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 rape.”
 These presumptions will bear significantly in the
determination of issues of resistance or consent in
rape.
 Limit an offender’s available defenses
 Cases: The Supreme Court has held
 When a woman says that she had been raped,
she says in effect all that is necessary to show that
said crime has been committed (People vs. Lascuna,
225 SCRA 386; People vs. Joya, 227 SCRA 9; People vs. Budol,
143 SCRA 241; People vs. Pasco, 181 SCRA 233)
 Complainant’s willingness and courage to face the
interrogation and medical examination is a mute
but eloquent proof of the truth of her charge (People
vs. Joya, 227 SCRA 9)
 There is more reason to believe the words of a
woman when she accuses a close relative of
having raped her (People vs. Alvis, Jr., 117 SCRA 362)
 Cases: The Supreme Court has held
 Minor inconsistencies do not affect credibility
(People vs. Corpuz, 222 SCRA 842)

 There is no standard form of human behavioral

response
• There is no standard form of human behavioral response
when one is confronted with a strange, startling or
frightful experience (People vs. Arnan, 224 SCRA 37)
• The workings of a human mind placed under emotional
stress are unpredictable and people react differently –
some may shout, some may faint, and some may be
shocked into insensibility, while others may openly
welcome the intrusion (People vs. Malunes, 247 SCRA 317)
 Cases: The Supreme Court has held
 There is no standard form of human behavioral
response
• Human behavior varies from one person to
another. There is no such thing as an absolute
set of behavioral manifestations for people since
no two persons are the same (John Pinel,
Biopsychology, McGraw Hill Publications, 1993)
• Others become virtually catatonic because of
the mental shock they experience. Yet it can
never be successfully argued that they are less
victims than the former (People vs. Ibay, 233 SCRA 15)
 Cases: The Supreme Court has held
 Failure to immediately report the crime to the
authorities does not destroy the credibility of the
complainant
• The delay in reporting their grievances to the proper
authorities does not destroy the truth per se of the
complaint (People vs. Sagun, 303 SCRA 382 [1999])
• On the claim that the delay in reporting the crime to the
authorities of around 6 months is reason enough to
doubt the credibility of the complainant, the Court has
held in a long line of cases that delay in reporting the
crime is not sufficient to doubt the truthfulness of the
accusation (People vs. Jimenez, 250 SCRA 349)
 Post-Traumatic Stress Disorder
As Proof Of Rape
The Supreme Court held that the expert
testimony of the psychiatrist that the victim
manifested “psychotic signs and symptoms
such as unusual fear, sleeplessness, suicidal
thoughts, psychomotor retardation, poverty of
thought content as well as depressive signs
and symptoms” shows “evidence of guilt” of
the accused.
People vs. Cabral
(G.R. No. 131909, February 18, 1999)
 Penalties:
Rape through Carnal Knowledge

 Reclusion Perpetua
20y 1d  40 y
 Penalties:
Rape through Carnal Knowledge
Aggravated Rape:
Reclusion Perpetua to Death
– Use of deadly weapon
– By two or more persons
– Victim becomes insane
– Attempted Rape + Homicide
 Penalties:
Rape through Carnal Knowledge
Qualified Rape : Death Penalty
– Rape + Homicide
– Victim minor + Offender is a parent, ascendant,
step-parent, guardian, relative by consaguinity
or affinity w/in 3rd degree (c/a), or the common-
law spouse of the victim’s parent
– Victim under the custody of the police, military
authorities of any law enforcement or penal
institution
 Penalties:
Rape through Carnal Knowledge
 Qualified Rape : Death Penalty
– Full view of spouse, parent, child(ren) or other
relatives w/in 3rd degree of consaguinity
– Victim religious engaged in legitimate religious
calling + known by offender at the time of act
– Victim under 7 years of age
– Offender knows that he has HIV/AIDS or other
STD + virus transmitted to the victim
 Penalties:
Rape through Carnal Knowledge
 Qualified Rape : Death Penalty
– Offender: AFP, paramilitary, PNP, law
enforcement, penal institution + take advantage
of position to facilitate crime
– Victim suffered permanent physical mutilation or
disability because of rape
– Victim pregnant + offender knew of pregnancy
– Victim has mental disability, emotional disorder
&/or physical handicap + offender knew this
 Penalties:
Rape by Sexual Assault

 Prision Mayor
6 years 1 day  12 years
 Penalties:
Rape by Sexual Assault
 Prision Mayor to Reclusion Temporal (6y 1d  20 years)
– Use of deadly weapon
– By two or more persons
 RT to Reclusion Perpetua (12y1d  40 y)
– Attempted Rape + Homicide
 Reclusion Perpetua (20y1d  40y)
– Rape + Homicide
 Penalties:
Rape by Sexual Assault
 Reclusion Temporal (12y1d  20 y)
– Victim becomes insane
– Victim minor + Offender is a parent, ascendant,
step-parent, guardian, relative by consanguinity
or affinity w/in 3rd degree (c/a), or the common-
law spouse of the victim’s parent
– Victim under the custody of the police, military
authorities of any law enforcement or penal
institution
 Penalties:
Rape by Sexual Assault
 Reclusion Temporal (12y1d  20 y)
– Full view of spouse, parent, child(ren) or other
relatives w/in 3rd degree of consanguinity
– Victim religious engaged in legitimate religious
calling + known by offender at the time of act
– Victim under 7 years of age
– Offender knows that he has HIV/AIDS or other
STD + virus transmitted to the victim
 Penalties:
Rape by Sexual Assault
 Reclusion Temporal (12y1d  20 y)
– Offender: AFP, paramilitary, PNP, law
enforcement, penal institution + take advantage
of position to facilitate crime
– Victim suffered permanent physical mutilation or
disability because of rape
– Victim pregnant + offender knew of pregnancy
– Victim has mental disability, emotional disorder
&/or physical handicap + offender knew this
 Republic Act 8505
An Act Providing Assistance & Protection for
Rape Victims, Establishing for the Purpose
a Rape Crisis Center in Every Province and
City, Authorizing the Appropriation of Funds
therefore, and for Other Purposes.
 RA 8505
Rape Victim Assistance & Protection Act of 1998

 Establishment of Rape Crisis Center in

every province or city
 Services for victims of rape
 Duties of the police officer
 Respect for Privacy & Confidentiality
 Rape shield clause
Establishment of Rape Crisis Centers

The DSWD, DOH, DILG, DOJ and a lead

NGO w/ proven track record or experience
in handling sexual abuse cases, shall
establish in every province and city a rape
crisis center located in a government
hospital or health clinic or in any other
suitable place.
Services in Rape Crisis Center
 Provide psychological counseling, medical
& health services, including medico-legal
exam;
 Secure free legal assistance / services,
when needed;
 Assist in the investigation to hasten arrest &
filing of case in court;
 Ensure the privacy & safety of the victim
 Provide psychological counseling & medical
services to the family, when needed;
 Develop & undertake training programs on
human rights & responsibilities, gender-senstivity
& legal management of rape cases for
– Law enforcement officers
– Public Prosecutors
– Lawyers
– Medico-Legal Officers
– Social Workers
– Barangay Officials
 Adopt & implement programs for the
recovery of rape victims.

DSWD lead agency in the establishment of

the rape crisis center.
 Duties of the Police Officer
 PNP
– Establish women’s desk in every police precinct
– Female Police officers to conduct investigation of rape
cases where victims are women

 Medico-Legal Officer
– Must be of same sex as offended party
– Ensure that only persons expressly authorized by
offended party is/are present during the medico-legal
examination
 Police Officer
– Immediate referral of case to prosecutor for inquest
– Arrange for counselling & medical services for victim
– Immediately make a report on the action taken
– Ensure that only persons expressly authorized by
offended party is allowed in examination room
– Inform parties that proceedings can be conducted in a
language or dialect known or familiar to them
 Respect for Privacy
& Confidentiality
 At any stage of the investigation,
prosecution and trial
 The police officer, prosecutor, court & its
officers, as well as the parties
 Recognize the right to privacy of the victim
& the accused
 Closed-door investigation, prosecution, or
trial  when needed to ensure fair &
impartial proceedings & after considering
all circumstances for the best interest of
the parties

 Ensure that any information tending to

establish identities & other information
shall not be disclosed to the public.
 Rape Shield Clause
In prosecutions for rape, evidence of
complainant’s past sexual conduct, opinion
thereof or of his/her reputation shall not be
admitted unless, and only to the extent that
the court finds that such evidence is
material and relevant to the case (Section 6,
RA 8505)
 Rape Shield Clause
Prohibits the defendant or his attorney
from questioning the rape victim regarding
her previous sexual history or introducing
any other evidence concerning her past
sexual practices.

Michigan vs. Lucas

111 S. Ct. 1743 (1991)
 Appropriations
Year 1~ P120 Million charged against the
Organizational Adjustment Fund
P60M – DSWD
P20M – each DOH, DILG, DOJ

Thereafter, Annual GAA