Senior Associate Justice Marvic Leonen said in his dissenting opinion that the high court’s majority opinion is indeed not a progressive step as these subtle legal distinctions shield continued male violence in a patriarchal society.
Trigger Warning: Rape
By SAI GOMEZ
Bulatlat.com
MANILA – Women’s rights advocates are up in arms over a 2022 decision of the Supreme Court that was only made public last week, saying that attempts to “fine tune” the definition of rape is not only unnecessary but will also aggravate the sufferings of victims.
In its decision, the high court affirmed the conviction of a certain Efren Agao by a local court back in 2014, which cited a 2014 People v. Besmonte case stipulating that ‘‘carnal knowledge’ (or sexual intercourse), as an element of rape, does not require full penetration of the female organ.’
Agao was charged with two counts of statutory rape by the Valenzuela Regional Trial Court. However, the higher court ruled to change one count of statutory rape to simple rape since the other crime was committed when the victim was 13 years old.
In a 40-page decision penned by Justice Alfredo Benjamin S. Caguioa, the SC stated the need to make the act of rape’s definition “unambiguous and definitive.”
The SC declared that “mere introduction, however slight, into the cleft of the labia majora by a penis that is capable of penetration, regardless of whether such penile penetration is thereafter fully achieved, consummates the crime of rape.”
Read: ‘A ruling for rapists,’ Gabriela on SC ruling
The court’s ruling was strongly opposed by women’s rights advocates, saying the definition was “unnecessary,” as it contributes to the further suffering of women and victims as “creating ‘gradations’ between ‘rape’ and ‘attempted rape’ on account of anatomical thresholds is effectively reducing the dignity of women to our body parts.”
Bulatlat delves into the statistics and rape cases in the Philippines and how the high court’s landmark ruling affects the already-distant justice for rape victims.
How rape is defined
Over the decades, experts in this field have continued to work on refining the definition of rape in an effort to ensure that it is accurately reported, to send a message to victims that what happened to them matters, and that perpetrators will be held to account.
In the United States, for example, its Federal Bureau of Investigation’s definition of rape for their Uniform Crime Reporting program has been unchanged since 1927 until recently. In its old definition, the focus was on “the carnal knowledge of a female” against her will. It was not until 2012, which became effective the following year, that its definition was expanded to include that “penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.”
According to The Practical Guide to Humanitarian Law, the existence of sufficient evidence that there was penetration or the individual was coerced is needed to justify that rape happened, otherwise the crime will only be ruled as “sexual assault” or “sexual misconduct.”
The document adds, “it is sometimes also difficult to prove that such an act was not consensual. The victims must prove that they did not freely consent to the act. The submission may have been obtained by force, threat, abuse of authority or of trust, or other forms of coercion. Some countries have particularly high burdens of proof, such as the requirement of physical proof or even witnesses.”
After SC’s clarification on how rape is consummated, Senior Associate Justice Marvic Leonen dissented, saying that the ruling “downplays the crime of rape.”
“Rape is not punished in degrees as the trauma that comes from it is not experienced in degrees. The woman and girl victim views the violation as a whole. To tell her that her experience is that of frustrated or attempted rape I would be to disregard her experience, her trauma, and the violation of her dignity which the law punishes,” said Leonen.
This resonates with how European countries such as Belgium, in a law it passed in 1989, define rape with a focus on consent, saying that it is “not considered to have been given, if the crime is committed by violence, coercion or deceit, or is made possible by the infirmity or physical or mental impairment of the victim.”
Among the European countries that have also put more focus on consent in defining the crime of rape include Croatia, Cyprus, Denmark, Finland, Germany, Greece, Iceland, Ireland, Luxembourg, Malta, Spain, Slovenia, Sweden and the UK, according to a 2020 study by Amnesty International.
“Changing laws will not eradicate rape, but it is a crucial step along the way. It sends a powerful message about what kind of society we want to live in. That is, a society free from rape, and where everyone’s sexual autonomy and bodily integrity are respected and valued,” Amnesty International said.
Meanwhile, in the recently released landmark ruling, the SC Court focused on ‘the exact anatomical situs of the genital contact’ in discussing when rape is consummated.
Human rights lawyer Minnie Lopez of the National Union of People’s Lawyer (NUPL) told Bulatlat that this “clarification” by the SC is not a step forward as it will burden the victims more.
“In handling rape cases, all the victims need to prove is that sexual intercourse happened without the victim’s consent. It is already a difficult process. But now, proving rape should not be anatomically based. The updated ruling states that the man’s penis needs to touch a specific part of the woman’s body so it is really burdensome,” said Lopez in an interview.
For Lopez, this, among other factors, is the reason why some victims choose to remain silent or pull out their cases.
Rape remains underreported
As it stands, rape is among the most underreported crimes both here and abroad.
In the 2017 National Demographic and Health Survey of the United Nations Populations Fund (UNPF), one in 20 women and girls aged 15-49 have experienced sexual violence in their lifetime. A report from the non-profit organization Cameleon shows that about seven million children are sexually abused every year in the Philippines.
In the Philippines, its police chief said in January that rape, along with theft and physical injury, were among the most prevalent crime since Ferdinand Marcos Jr. assumed his position.
According to the PNP Crime Incident Reporting and Analysis System, the number of rape victims in the Philippines reached 8,460 in 2021. In the data of the Department of Budget and Management Government Procurement Policy Board, on average, there were about 2,000 reported rape cases per year.
However, these statistics do not cover the whole number of rape and sexual abuse happening in the country.
“If rape is reported, it is seldom prosecuted; if prosecuted, the prosecution is rarely pursued in a gender-sensitive manner and often leads to very few convictions, the revictimization of survivors and high attrition rates, resulting in a normalization of rape, a culture of rape or silence on rape, stigmatization of victims and impunity for perpetrators,” the United Nations Special Rapporteur on violence against women, its causes and consequences, Dubravka Šimonovi? said in her 2021 report.
The process of attaining justice for rape victims has been particularly difficult as the burden to prove the existence of assault lies into the victims.
Read: Rape Victims Viewed as “Dirty Women”
Read: Assistance to rape victims still sorely lacking
Victims’ struggles in proving the existence of rape
In her more than a decade of practice as a human rights lawyer, Lopez faced challenges, particularly in the country’s justice system.
“It is challenging to make the victim understand the need to seek justice as the process is painstaking. The victims need to recount their experiences which are very traumatic,” she said.
Aside from this, the court’s reliance on evidence can also be difficult as they need to prove there’s injury or laceration in the female’s genitalia in order to prove rape.
“In my experience, one of the cases I handled did not reach the prosecutor level because of the appreciation of evidence. At the same time, the perpetrators are military officers so there is a bias in the ruling,” Lopez added.
Among other factors, poverty remains one of the hindrances to achieving justice as bringing a case before a trial court is expensive. Victim blaming also remains rampant in the country.
“Finding justice for rape victims is really expensive. They need to pay filing fees, the appearance fee of lawyers, and more. This is one of the reasons why some victims do not pursue justice,” said Lopez.
Litigation of rape cases before Philippine courts could stretch up to a decade and end up with perpetrators being acquitted as seen in the Karen Tayag Vertido v. The Philippines case. Here, the local court questioned the credibility of the victim’s statement, saying that she had the opportunity to escape her abuser.
During the trial, victimology and rape trauma expert Dr. June Pagaduan Lopez, who also treated Vertido, testified that the victim suffered from post-traumatic stress disorder (PTSD). She was also fired from her work as she had to juggle it with the hearings.
In 2007, Vertido approached the United Nations Committee on the Elimination of Discrimination Against Women (CEDAW), which affirmed that her rights were violated by the Philippine courts.
“To say that the trial lasted 9 years also meant 9 years of having wounds opened and re-opened just as they are about to heal,” said Vertido in her presentation in the Office of the High Commissioner for Human Rights (OHCHR)
The stand of the Philippine government was that it was not obliged by CEDAW’s views due to Vertido not going to Supreme Court for certiorari or the court process to seek judicial review of a lower court’s decision; and secondly, CEDAW’s views impinged her country’s sovereignty.
The Committee held that the Philippine court should not assume that a woman gives her consent when she had not physically resisted unwanted sexual conduct, and recommended that the State provide Vertido with appropriate compensation.
Until now, no compensation was given to Vertido, according to an article by Rappler.
“The culture of silence is very strong in the Philippines. Women who have been raped do not talk about it; much less report the crime to authorities. What for? Doing so would just aggravate the shame inflicted on them by making it a very public issue. Then there is the fact that the records are notoriously famous for acquitting men accused of rape,” Vertido said.
SC’s fine-tuning of rape, a step backward
For women’s group Gabriela, the SC’s “fine-tuning” of the criminal act of rape only adds to the burden experienced by women as they need to very specifically demonstrate that their rapists penetrated into their labia minora for the court to consider it as rape.
In a research about storifying sexual violence, children and adults who have abuse experiences have low rates of reporting their cases. Even sexual assault survivors who have recovered from trauma may not feel comfortable sharing their stories due to the stigma associated with sexual violence victims.
For Clarice Palce, secretary general of women’s group Gabriela, by creating ‘gradations’ between ‘rape’ and ‘attempted rape’ on account of anatomical thresholds, the SC forgets that abuses whether through vaginal penetration, oral sex, or penetration through foreign objects, already constitute grave violation of the woman’s dignity by disregarding her consent.
“Rape is rape. No matter the nature or specifics, rape is a violation of a person’s humanity,” she adds.
The women’s alliance added this ruling also poses dangers for ‘transgender women, women with undeveloped genitals, intersex women, and many more’ who do not possess the stated biological parts of the Court.
For Leonen, the ponencia, or the Court’s majority opinion, is indeed not a progressive step as these subtle legal distinctions shield continued male violence in a patriarchal society.
“To reduce a woman to merely a vagina that can be sexually conquered reduces her worth and dignity. By unnecessarily belaboring on the different physiological aspects of her vagina in the guise of protecting the accused’s rights from “the [considerable] difference in the lengths of period of incarceration” between the attempted and consummated rape of a minor, this Court takes a step back towards the previous heteronormative-and frankly, misogynistic-definitions of rape. It likewise undermines the severity of the trauma suffered by sexually abused women and children,” Leonen added. (JJE, RVO) 
