Engendering the Philippine Judiciary
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Engendering
the Philippine Judiciary
Engendering the Philippine Judiciary
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Engendering the Philippine Judiciary
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PART 1
Engendering
the Philippine Judiciary
Engendering the Philippine Judiciary
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Engendering the Philippine Judiciary
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Introduction
T he stage is set for the full promotion and protection of women’s
rights as human rights in judicial practice. States have signed and passed
treaties and domestic laws to combat gender discrimination. In the
Philippines, an increasing number of women’s rights and human rights
organizations and advocates are helping to raise the demand for a judiciary
that is not only fair and just, but is also one that does not discriminate on
account of gender.
Given this scenario, gender justice should no longer be elusive to
women and girl-children.
Unlike the situation that prevailed twenty years ago, judges now have
the opportunity to understand women’s rights more fully and to implement
them. Twenty-one years ago, the Philippines signed the Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW), and
the Optional Protocol to the CEDAW. As a result of many years of work
by women’s rights advocates, we now have Republic Act No. 7877,
otherwise known as the Anti-Sexual Harassment Act of 1995; Republic
Act No. 8353, or the Anti-Rape Act of 1995; Republic Act No. 8505, or
the Rape Victims Assistance Act; Republic Act No. 9208, or the AntiTrafficking in Persons Act of 2003; and Republic Act No. 9262, or the
Anti-Violence Against Women and Their Children Act of 2004.
The Supreme Court also paid more attention to gender mainstreaming
during the term of Chief Justice Hilario G. Davide, Jr. No chief justice has
accomplished as much as he did in the area of gender. Not only did he
initiate the Action Plan for Judicial Reform, but it was also during his term
that the Committee on Gender Responsiveness of the Judiciary was created.
Under his leadership, the Supreme Court started the gender sensitivity
training program for judges, and initiated other reforms in the rules such as
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the Rule on Examination of a Child Witness and the Rule on Violence
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Against Women and Their Children. Chief Justice Davide, Jr. is an articulate
advocate against VAW, and opened the doors of the Supreme Court to
information and critique from non-governmental organizations or NGOs
and women’s rights advocates.
Despite these developments, however, women continue to suffer
discrimination in the judicial system on account of gender and class. This
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reality is even more pronounced in cases of violence against women (VAW),
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where biases against women and gender stereotyping are most pronounced
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in the process of litigation and decision making by prosecutors and judges.
It is also in cases of VAW that gender-based inequality and discrimination
are patently manifested. Thus, the treatment by the judiciary of complainants
in VAW cases is the litmus test of its gender-responsiveness.
As a result of gender discrimination in the courts, many women who
are victims of violence do not file cases against their abusers due to lack of
resources for litigation, the absence of a support system, and the perceived
unreliability of the justice system. Poor women, in particular, are intimidated
by the court process, which they view as unfriendly, complicated, lengthy,
and expensive. To draw attention to the need for gender sensitivity in the
judiciary, the organizers came up with an inspiring project called The Gender
Justice Awards. It is hoped that The Awards will enable judges to improve
their education on gender and take affirmative action to correct the inequality
between men and women litigants in the court system. It cannot be
overemphasized that the courts must take the administration of gender
justice seriously because it is fundamental to fostering gender equality and
gender mainstreaming.
As an advocacy and enabling strategy for judicial reform, The
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Gender Justice Awards was launched in 2004 by the University of the
Philippines Center for Women’s Studies, the University of the Philippines
Center for Women’s Studies Foundation, Inc. and the National Commission
on the Role of Filipino Women with the support of the United Nations
Development Fund for Women-Bangkok. This book is part of The Gender
Justice Awards project and was envisioned not only to document The
Awards but also to contribute to the development of jurisprudence so
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that women can achieve gender justice, which is fundamental to fostering
gender equality and gender mainstreaming.
This book has two parts. Part I contains the following: (1) The
Gender Justice Awards, (2) gender bias in the courts, (3) gender analysis
as a tool for judges, and (4) the Convention on the Elimination of All
Forms of Discrimination Against Women (CEDAW) and judicial practice.
In Part II are case digests of significant decisions of the Supreme Court
on VAW cases. The latter are digests of decisions on VAW that were
often used by the awardees, as well as those recommended by the
research team.
This book aims to achieve the following objectives: to raise awareness
among our judges and justices of the urgent call for gender sensitivity and
gender justice; to give judges a tool for gender analysis; to raise their
awareness of the CEDAW and other human rights instruments; and to
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contribute to the development of gender-fair jurisprudence in cases of
violence against women and girl-children.
The Gender Justice Awards
T he Awards was designed as an advocacy and enabling strategy
aimed at contributing to the global effort to eliminate violence against
women and gender discrimination in the courts. The organizers of The
Awards hoped to raise the judges’ awareness of gender and inspire them
to be sensitive to the situation of women in their decision-making
processes. The Awards is also meant to raise the level of expectation of
the public from our judges, justices, and court personnel. It is also hoped
that by encouraging the participation of human rights’ organizations and
advocates of women’s rights and children’s rights all over the country,
they could strengthen their interest and network for judicial reform. While
The Awards is a venue for good news, it also has the effect of making
judges aware that their behavior and decisions will be watched by
women’s rights advocates and the public.
The Awards, described by the media as the first of its kind in the
Philippines, was also cited by Dr. Patricia Licuanan, president of Miriam
College in her paper during the Beijing Plus 10 Assessment in Bangkok in
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September 2004 as a model of coalition building and partnership between
government, non-governmental organizations and the private sector. In
support of The Awards, the Supreme Court, en banc, issued a resolution
commending the awardees.
The following criteria were adopted for The Awards: (1) the judge’s
decision(s) must show gender sensitivity and a keen understanding of VAW;
(2) they must address the issue of discrimination against women; and (3) the
judge must not have shown insensitivity to women litigants in the conduct
of trial in any of the case heard in his or her court. The nominees had to meet
the following qualifications: (1) they must be either incumbent or retired
judges of trial courts, including Shari’a courts; (2) they must not have
rendered a decision that clearly violated the rights of women; and (3) they
must not have either a pending or a prior conviction in an administrative
case involving a violation against women, such as sexual harassment.
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The organizers wrote 808 judges of the Regional Trial Courts, 214
judges of the Municipal Trial Courts, 90 judges of the Family Courts, 154
judges of the Municipal Trial Court in Cities, 73 judges of the Metropolitan
Trial Courts and 223 judges of the Municipal Circuit Trial Courts. With the
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help of partner organizations, the organizers then appointed coordinators in
Cebu, Bohol, Baguio, Davao and Bacolod, and had posters in Halls of Justice.
The publicity and participation of NGOs generated a total of 80 decisions
written by 56 judges. Those who sent their nominations were NGOs,
lawyers, public officials, clerks of court, and a parish priest.
Partner organizations and provincial coordinators in Davao, Cebu,
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Bohol, Baguio, and Bacolod, assisted in generating the nominated decisions,
including the regional offices of the Department of Social Welfare and
Development. The Integrated Bar of the Philippines, the Philippine Bar
Association, and the Philippine National Police Community Relations Office
were also informed of The Awards.
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A review team composed of lawyers engaged in the advocacy for
women’s rights and children’s rights read the nominated decisions and chose
the twenty finalists, twelve men and eight women. The review team also
hoped to find judges who would comment on some Supreme Court decisions
on VAW cases such as those that perpetuate gender stereotyping of women’s
roles and those that continue to cite myths and misconceptions about rape
and other forms of VAW. The team also hoped to find judges who could
articulate or expound on legal theories and issues on VAW. Through The
Awards, the organizers and the review team hoped as well to encourage
judges to set the trend in gender sensitive jurisprudence rather than to rely
only on decisions of the Supreme Court to support their own decisions.
The list of finalists and their decisions was then submitted to the
board of judges, which was composed of the distinguished retired Justice
of the Court of Appeals Leonor Ines Luciano, Atty. Lorna P. Kapunan,
officer of the Women’s Business Council; and Sheila S. Coronel, executive
director of the Philippine Center for Investigative Journalism and 2003
Ramon Magsaysay Awardee for Journalism. After careful deliberation,
the board of judges chose Judge Ma. Nimfa Penaco-Sitaca of the Regional
Trial Court (Family Court) of Oroquieta City Branch 13 as the most
outstanding judge.
The other awardees were Judge Edgar G. Garvilles of the Regional
Trial Court of Bacolod City as outstanding judge for the Visayas; Judge
Clifton U. Ganay of the Regional Trial Court of Agoo and Judge Eloida
Patricia R. de Leon-Diaz of the Regional Trial Court of Lucena as outstanding
judges for Luzon; Judge Jacob T. Malik of the Regional Trial Court of
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Lanao del Norte as outstanding judge for Mindanao; and Judge Teodoro
A. Bay as outstanding judge for the National Capital Region (Metro Manila).
Recognizing the contribution of some decisions to the
development of gender responsive jurisprudence, the board of judges
also gave special citations. Judge Anthony E. Santos (retired) of the
Regional Trial Court of Cagayan de Oro City Branch 19, was cited for
having rendered the first conviction of marital rape under Republic Act
No. 8353, otherwise known as the Anti-Rape Act of 1997. Judge Santos,
now a paraplegic due to scoliosis, convicted a prominent businessman of
marital rape. Citations were awarded as well to Judge Bensaudi Arabani,
Sr. of the Shari’a Court of Isabela City for protecting the rights of Muslim
women and children in Mindanao, and Judge Edgardo L. delos Santos of
the Regional Trial Court of Bacolod City Branch 45, for rendering the
first conviction of a foreigner who had violated Republic Act No. 6955,
which prohibits the matching of Filipina mail-order brides. The profiles of
the awardees are in Appendix C.
Of all the decisions nominated, only the case of People vs. Bernard
Lauks, decided by Judge Delos Santos, was prosecuted with the help of
a women’s organization, Gabriela-Negros, which gathered evidence
against the accused. More than just showing gender sensitivity, Judge
Edgardo de los Santos was recognized for having chastised the
government for its indifference and lack of political will. He wrote:
It is said that despite the advent of the Women’s Rights
Movement, the process of changing stereotypes and the raising of
the status of women had been slow an [sic] uneven ... The
contemptuous treatment of women has worsened such that they
are not only treated as sex objects but practically considered as
chattels and sold to the highest bidders. This is patent from the
trafficking of women and the flourishing of the human flesh trade
as a result of illegal recruitment … Worse they end up as prostitutes
in brothels under sub-human conditions worthy to be called hell on
earth under threat of bodily harm and even death.
Going beyond merely deciding on the case, Judge Delos Santos
took the government to task for its inaction, stating, “The unabated assault
of the Filipino women’s dignity will continue due to the indifference of
the concerned government officials in adopting more concrete and
effective measures to curb the menace.”
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The Gender Justice Awardees
Most Outstanding Award
Judge Ma. Nimfa Penaco-Sitaca
Branch 13, Regional Trial Court
Oroquieta City, Misamis Oriental
Outstanding Award for Luzon
Judge Eloida Patricia R. de Leon-Diaz
Branch 58, Regional Trial Court
Lucena City
Outstanding Award for Luzon
Judge Clifton U. Ganay
Branch 31, Regional Trial Court
Agoo, La Union
Outstanding Award
for National Capital Region
Judge Teodoro A. Bay
Branch 86, Regional Trial Court
Quezon City
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Most Outstanding Award
for the Visayas
Judge Edgar G. Garvilles
Branch 47, Regional Trial Court
Bacolod City, Negros Occidental
Most Outstanding Award
for Mindanao
Judge Jacob T. Malik
Branch 21, Regional Trial Court
Kapatagan, Lanao del Norte
Special Award
Judge Bensaudi I. Arabani, Sr.
Shari’a District Court
First Shari’a Judicial District
Jolo, Sulu
Novel Decision Award
Judge Edgardo I. delos Santos
Branch 45, Regional Trial Court
Bacolod City, Negros Occidental
Novel Decision Award
Judge Anthony E. Santos
Branch 19, Regional Trial Court
Cagayan de Oro City
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Recognition was also given to the finalists, six female judges and
five male judges who wrote commendable decisions. They are the
following:
1. Judge Galicano C. Arriesgado
Branch 24, Regional Trial Court
Cebu City
2. Judge Marilyn Lagura Yap
Branch 28, Regional Trial Court
Mandaue City, Cebu
3. Judge Olegario R. Sarmiento, Jr.
Branch 24, Regional Trial Court
Cebu City
4. Judge Pampio A. Abarintos
(now Justice of the Court of Appeals in the Visayas)
Branch 22, Regional Trial Court
Cebu City
5. Judge Fatima G. Asdala
Branch 87, Regional Trial Court
Quezon City
6. Judge Nimfa Cuesta Vilches
Branch 48, Regional Trial Court (Family Court)
Metro Manila
7. Judge Abednego O. Adre (retired)
Branch 88, Regional Trial Court
Quezon City
8. Judge Priscilla B. Padilla
Branch 38, Regional Trial Court (Family Court)
Manila
9. Judge Myrna Dimaranan Vidal
(now Justice of the Court of Appeals in Mindanao)
Branch 127, Regional Trial Court
Caloocan City
10. Judge Jaudri Jainul
Shari’a Circuit Court
Isabela City
11. Judge Rosalina L. Pison
Branch 107, Regional Trial Court
Quezon City
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Judge Ma. Nimfa Penaco-Sitaca
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An English major and an elementary teacher before she took up
law, Judge Ma. Nimfa Penaco-Sitaca used to commute ten kilometers a
day to reach her grade one students in a public school. Her career path
changed when she worked as a secretary in the law office of then Attorney
Marcelo B. Fernan, who later became Chief Justice. Interested by the
legal profession, she exchanged idle time after work for four years of
night school when she enrolled in Colegio de San Jose-Recoletos as a
working law student.
Three months after taking her lawyer’s oath, she married a physician
and returned home where she set up a law office. She resumed her calling
as an educator and taught law in her alma mater, and handled catechism
classes in the public high school. Her community involvement, from being
editor of the local newspaper to her active participation as a member of
the Legion of Mary geared her for public office, as she became an assistant
city prosecutor. Shortly after, her former boss, the late Chief Justice
Marcelo B. Fernan, encouraged her to join the judiciary.
In 1990, she was appointed Regional Trial Court Judge of Oroquieta,
Misamis Occidental. She was the valedictorian in a judicial career
development program, and received a travel grant from the U.S.
Information Agency because of her merits.
Award-winning investigative journalist, Ms. Sheila S. Coronel,
representing the board of judges, wrote and read the following rationale
for their choice of Judge Penaco-Sitaca during the awarding ceremonies:
Judge Nimfa Penaco-Sitaca’s decisions are concise, lyrically
written, and to the point. She makes her pronouncements with a
clarity that is rare in the courts, doing away with pretentious legalese
and unnecessary verbiage. Most of all, her decisions betray a keen
understanding of human nature and an unerring sense of what is
right and what is wrong. They show compassion, especially for
sexually abused young women, and a determination to make sure
that justice is done to them and their wrongdoers get what they
deserve.
Judge Sitaca is capable of righteous rage, as evidenced in her
decision convicting a 43-year old farmer of prostituting a 13-year
old girl, whom he paid with money and gifts in exchange for sex.
As she stated in her decision in People of the Philippines vs. Fred B.
Blasco: “The court understands the shame and self-loathing (the
victim) feels over the experience which will haunt and continue to
haunt her, perhaps for the rest of her life.”
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Judge Sitaca’s decisions show particular concern for children
who have been sexually abused by men they trust, including family
members. In sentencing a grandfather to life imprisonment for the
rape of his seven-year-old granddaughter, she said in a tersely
worded decision: “An abundance of words is not required for the
court to see what the private complainant went through.” She also
deftly set aside the accused’s claim that the child’s mother made
her invent the charges. “Would a mother deliberately expose her
child to the difficulty of a court examination and have her private
parts examined just to get even with her father-in-law for a
resentment, imagined or real? Accused’s contention is difficult to
believe. It is likewise settled jurisprudence that no mother would
publicly expose a young daughter’s dishonor for the purpose of
satisfying an evil motive against the accused.”
Judge Sitaca can be literary in her decisions. In a simple case
of a nullity of marriage, she took pains to impart some nuggets of
wisdom: “Marriage is indeed a journey of a thousand miles, taking
couples through unchartered territories. Their only lodestar is the
starlight in their eyes, fueled by the love they have for one another,
enabling them to start on their journey with much promise and
anticipation. As they travel together, the starlight dims, making the
path difficult to make out.”
For her lyrically written decisions and for her wisdom,
compassion, and knowledge and application of the law, Judge Nimfa
Penaco-Sitaca deserves special recognition.
What distinguished Judge Sitaca’s decisions from those of other
judges, apart from her keen understanding of the situation of women
litigants in her court, was her spontaneous and lyrical language.
Judge Penaco-Sitaca maintains that fear of mistake has helped her
to be balanced in making decisions. “I have a fear of making mistakes
because of the frightening fallibility of human wisdom,” the judge said.
Her father, she revealed, left a strong legacy that made her what she is
now. “My father, Judge Alfonso Penaco, a retired city judge, gave us
(siblings) the genes and taught us the trait of compassion. He even saw
this award coming before he passed away recently,” Sitaca said.
Readers can gauge for themselves the quality of Judge PenacoSitaca’s decisions from the following excerpts culled from some of her
other decisions:
An abundance of words is not required for the court to see
what the private complainant went through. The medical certificate
issued by the municipal health officer graphically corroborates
what the child has been unable to put into words … Accused
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lamely says that the mother who resents him must have coached
the child into fabricating the accusation against him. Would a mother
deliberately expose her child to the difficulty of a court examination
and have her private parts examined just to get even with her
father-in-law for a resentment, imagined or real? Accused’s
contention is difficult to believe. It is likewise settled jurisprudence
that no mother would publicly expose a young daughter’s dishonor
for the purpose of satisfying some evil motive against the accused.
(People vs. Rufo Alasagas, RTC Case No. 1624-13, October 31,
2002)
Weighed down by dark memories of a past she would have
preferred to keep buried, complainant punctuated her testimony
with sobbing hiccups and a flood of tears, perhaps because retelling
her story meant reliving her horror and defilement. From the play
of emotions on her face, the court felt her dread and terror at
being left alone in the house in the company of the accused, while
her grandmother unsuspectingly went about her daily business away
from home. The court saw that when the house afforded accused
no opportunity for access to her; accused took complainant away
on supposed errands with him, meting out corporal punishment to
enforce obedience ... Virtually his sex slave from the tender age of
seven until she had reached puberty, during which time accused
nursed fantasies of fathering a child with her, complainant did not
raise a hue and cry, fearing for her life and those of her
grandmother’s … Through the flood of tears and sobbing hiccups
that made speaking difficult, complainant spoke with the ring and
timbre of truth. This court cannot disbelieve her.
The Bible speaks of a joy that cometh in the morning. For
complainant, robbed so early in life of innocence and the simple
pleasures of childhood, joy may come like a stranger. Morning
may have dawned when she obtained her freedom from the clutches
of accused but it will take a long time for complainant’s bad dreams
to stop haunting her and for her memories to heal, if ever. For the
trauma inflicted upon complainant, accused is liable for moral
damages and civil indemnity (People vs. Basadre, RTC Case No.
1536-13, 1544-13, March 30, 2001).
Accused further attempted to show that complainant was not
naïve, but how can a 13-year-old whose concern was being able
to buy food be a woman of the world? xxx Although the minor did
not state it, the court understands the shame and self-loathing that
she feels over the experience with her “yoyo” that will haunt and
continue to haunt her, perhaps for the rest of her life. Which is
why she preferred to refer to the incidents as rape, a term kinder
to her as it connotes no participation from her. For inflicting such
cruel memories on her, accused is liable for moral damages.
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(People vs. Blasco, RTC Crim Case No. 1601-13, 1602-13, January
7, 2003)
In Cagas vs. Rodelas (RTC Case No. 4651-13, November 29,
2002), a case of nullity of marriage, Judge Penaco-Sitaca eloquently wrote:
The court finds that indeed plaintiff’s marriage with defendant
is beyond redemption owing to defendant’s psychological incapacity
to perform the essential marital obligations to love, support, help
and respect the plaintiff. Throughout their time together, it appears
that all he did was batter, bruise and abuse plaintiff’s love. Sadly or
mercifully, that love is, as the cliché goes, dead like a doornail,
defendant himself giving it one mortal blow after the other. Some
men need the love of a good woman to keep them to the straight
and narrow path but defendant’s personality flaw was a force bigger
than himself and more potent than any woman’s true love. This
personality disorder nurtured an enemy that was a constant threat
not only to plaintiff but also to her daughter and other housemates,
a condition that was antecedent to the marriage, is serious and
incurable.
Judge Garvilles of the Regional Trial Court of Bacolod City also
caught the attention of the board of judges for his body of work on
VAW cases and his substantive discussion of his decisions.
In People vs. Nerio (RTC Crim Case No. 19860, January 31, 2000),
Judge Garvilles’ outrage was evident in the case of the rape of a 70-year
old widow, a retired public school teacher, by a man who had been her
grade one pupil. On the“sweetheart’s defense” put up by the accused,
Judge Garvilles wrote:
Accused Nerio’s assertion of amorous relationship with
complainant, an old woman fit to be his grandmother, goes from
the sublime to the ridiculous and taxes one’s credibility. There is
neither rhyme nor reason, or even logic, for an aged female specie
who had to apply external medical pain killer to the aching and
aging parts of her body prior, and as an inducement, to sleep, and
had to submit to frequent medical check up even in Manila for
ailments naturally brought about by her decrepitude, to be so
hyperactive, exceptionally aggressive and superlatively adventurous
in sexual plays as what accused pictured in court.
Showing a genuine understanding of the rape victim’s feelings, Judge
Garvilles ruled she failed to mention the rape in the first police report
because “she was understandably extremely nervous and overwhelmed by
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her traumatic experience, heightened by the inexpressible shame and
embarrassment of reporting the sordid detail of her ravishment from the
hands of her attacker to a male police officer.”
Throwing away the misconception that victims of rape should
behave in a particular way if they are telling the truth, Judge Garvilles
stated that “there is no rule on how a victim of rape should behave
immediately after she has been abused. This experience is relative and
may be dealt with in any way by the victim depending on the
circumstances, but her credibility should not be tainted with any modicum
of doubt. Different people act differently to a given stimulus or type of
situation and there is no standard form of behavioral response when one
is confronted with strange or startling or frightful experiences.”
Judge Garvilles’ decision in the rape case of People vs. Asong (RTC
Case No. 23967, January 31, 2003) was hailed by women’s groups and
the Bacolod community as the fastest decision on rape in the province.
The judge conducted continuous trial in the case of a teenage girl who
was detained for nonpayment of internet bills and convicted the accused
within three months from the time the complaint was filed. The girl was
raped by male detainees in a Bacolod police station. In this decision
convicting the accused, Judge Garvilles wrote:
Thus, we adhere to the established rule that in the absence of
any evidence to show that the principal witness for the prosecution
was actuated by any improper motive, the presumption is that no
such motive exists and her testimony is entitled to full faith and
credit (People vs. Seguis, supra; People vs. Paynor, G.R. No.
116222, September 9, 1996, 261 SCRA 615, 626) xxx
The “force” being referred to need not be irresistible; all that
is necessary is that the force used by the accused is sufficient to
consummate his evil purpose or that it was successfully used. It
need not be great or of such character that it could not be repelled.
“Intimidation,” on the other hand, must be viewed in the light of
the victim’s perception and judgment at the time of the commission
of the crime and not by any hard and fast rule; it is enough that it
produces fear- fear that if the victim does not yield to the bestial
demands of the accused, something would happen to her at the
moment; or even thereafter (See People vs. De Guzman, G.R.
No. 117217. December 2, 1998). It suffices that the offense is
consummated against her will or that she yields because of genuine
fear of great harm (People vs. Pecayco Jr., G.R. No. 132047,
December 14, 2001) xxx
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The awardees with Chief Justice Hilario G. Davide, Jr.
(Front row, left to right) Justice Leonor I. Luciano, Atty. Rowena V. Guanzon, Ms. Sheila
S. Coronel, Judge Ma. Nimfa Penaco-Sitaca, Chief Justice Hilario G. Davide, Jr., Judge
Eloida Patricia R. de Leon-Diaz, Judge Bensaudi I. Arabani, Dr. Carolyn I. Sobritchea,
and former NCRFW Chairperson Aurora Javate-de Dios (Back row) Judge Edgar G.
Garvilles, Judge Teodoro A. Bay, Judge Clifton U. Ganay, Judge Jacob T. Malik, and
Judge Edgardo L. delos Santos
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UNDP representative Ms. Deborah Landey, Chief Justice Hilario G. Davide, Jr.,
Justice Adolfo S. Azcuna, Judge Ma. Nimfa Penaco-Sitaca, and retired Justice Flerida
Ruth P. Romero
(Left to right) UP-CWS Director Carolyn I.
Sobritchea, Judge Ma. Nimfa Penaco- Sitaca,
Ms. Sally Ujano, and Atty. Rowena V.
Guanzon
Judge Ma. Nimfa Penaco-Sitaca
with Ms. Cheche Lazaro of the Probe
Team
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Awardees and finalists with the organizers and Chief Justice Hilario G. Davide, Jr.
Judge Ma. Nimfa Penaco -Sitaca (seated 4th from left) with the officers
and members of the Zonta Club of Metro Pasig (seated left to right): Susan SerranoVillar, Nancy T. Lim, Rosalina de la Paz-Magat, Flerida A. Jimenez, and Maria P. Morris;
(standing left to right): Georgina Banzon, Lorna Bernardo, Ester P. Yamson, Susan
Lim, Rossana Llenado, and Atty. Rita Linda V. Jimeno
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Chief Justice Hilario G. Davide, Jr. (left to right) with former NAPC secretary Ms.
Imelda Nicolas, Atty. Rowena V. Guanzon, NCRFW chair Aurora Javate-de Dios,
Zonta Club of Metro Pasig (ZMP) past president Rosalina de la Paz Magat, ZMP
president Flerida Jimenez, and NCRFW executive director Emmeline L. Verzosa
The Review Team (seated left to right) Atty. Edith Arciaga Santos, Atty. Sally D. Escutin,
Atty. Rowena V. Guanzon, NCRFW chair Aurora Javate-de Dios, NCRFW executive
director Emmeline L. Verzosa, and Atty. Ana Luz Cristal. (Standing behind) Atty. Michael
Vincent Gaddi, Atty. Joan Mosatalla, Atty. Lady Rochelle S. Saymo, Atty. Sheila Bazar,
Atty. Maria Lorenza I. Barias, and Atty. Milabel Cristobal Amar
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In People vs. Soberano (G.R. No. 108123, May 29, 1995), it
was held that in [sic] respect to the victim’s supposed failure to
resist and cry for help, such behavior, even if true, does not suffice
to show that she voluntarily agreed to have (oral) sex with the
accused. The Highest Court had ruled many times in the past that
lack of consent and resistance on the part of the victim need not be
carried to the point of sustaining death or physical injuries at the
hands of the rapist, and all that is necessary is that the force or
intimidation applied against her have enabled the assailant to
successfully commit the crime. In another case (People vs. Acabo,
G.R. No. 106677. July 17, 1996) xxx Complainant’s failure to
shout did not make voluntary her submission to the criminal acts of
the accused xxx
The more frequently used Supreme Court decisions cited by Judge
Garvilles reflect the principles that: (a) rape can be committed by the
complainant’s boyfriend or husband (People vs. Tismo, G.R. No. No. L44773, December 4, 1991, 204 SCRA 535; People vs. Domingo, G.R.
No., September 8, 1993, 226 SCRA 156); (b) physical resistance need
not be established in cases of rape with intimidation because the woman
submits herself to the rapist’s will out of fear for her life and concern for
her personal safety (People vs. Obquia, G.R. No. 143716, April 5, 2002);
(c) rape stigmatizes the victim and not the perpetrator (People vs. Luzarita,
G.R. No. 118316, November 24, 1998); (d) the testimony of a rape
victim is credible when she has no reason to testify falsely against the
accused (People vs. Bernaldes, G.R. No. 109780, August 17, 1998;
People vs. Matamorosa, G.R. Nos. 104996-98, March 28, 1994, 231
12
SCRA 509; People vs. Sequis et al., G.R. No. 135034, January 18,
2001); and (e) lust, which respects neither time nor place, is not an excuse
for rape. Rape can be committed in places where people congregate, at
parties, within school premises, inside a house even when there are other
occupants, and even in the same room where there are other members
of the family who are asleep (People vs. Pelayo, G.R. No. 132047,
December 14, 2001; People vs. Sequis et al, G.R. No. 135034, January
18, 2001).
Engendering the Philippine Judiciary
23
Gender Bias in the Courts
Gender inequality permeates all the facets of women’s lives, but
nothing is more appalling than discrimination against women in the courts,
the very place where they seek refuge from injustice and from which
they expect protection of their rights.
The significant role of judges in the interpretation of laws, their
interpretation or weighing of the testimonies and demeanor of witnesses,
and the application of the facts to the law pertaining to the case cannot
be overemphasized. They are also the dominant figure in the judicial
process and the authority that determines which conduct or evidence
may or may not be allowed.
Women’s rights lawyers know from experience that judges do not
always sit as detached arbiters; rather, they take with them their personal
value system into the courtroom. Aside from being “actors” themselves
in the courtroom, judges set the tone and the environment within which
women and children as well as the accused and their lawyers, will act.
When judges censure the use of sexist language and the inappropriate
behavior of lawyers, they protect the dignity of litigants. When they
create a friendly and respectful environment in court, they make children
more at ease, less afraid of the people around them and the judicial process.
On the other hand, when judges themselves show their gender bias
by using sexist language and uttering degrading remarks, they intimidate
women and children and trivialize the latter’s suffering and injury. When
this happens, when litigants are denied their right to have a genuinely
impartial judge, are they not in effect deprived of due process? When
judges believe that a woman who is raped must have somehow “asked
for it,” then we are thrown back to the Dark Ages, and women’s rights
advocates, including men, must continue to challenge discrimination in
the courts.
In sum, judges and the judicial processes they set in motion are not
as “objective” as they purport to be; wittingly or unwittingly, the former,
being products and agents of their social milieu, serve as interpreters
and constructors of judicial practice that is subjective. Women’s rights
organizations, women’s rights and human rights advocates, and the media
have been challenging unjust decisions, but only recently have women’s
rights advocates been vocal about the gender-insensitive and oppressive
Engendering the Philippine Judiciary
24
conduct of some judges, prompting some of them to file administrative
complaints on the grounds of gender bias and discrimination.
While biases against women are also evident in other types of cases
such as labor and child support and custody of children, where women
are frequently viewed as having or as entitled to less economic value in
the market, violence against women is more pronounced because it
constitutes “a violation of the rights and fundamental freedoms of women
and impairs or nullifies their enjoyment of those rights and freedoms”
(UN Declaration on Elimination of Violence Against Women) and
therefore should be eliminated. The bad news is that VAW kills more
women worldwide than cancer does. The good news is that global efforts
to stop VAW are continuing.
In the Philippines, only 38.4 percent or 430 out of the 1,119 judges
13
14
in all court levels are women. The proportion of female judges is even
lower at 24.7 percent in Regional Trial Courts, which include family courts.
The survey of family courts and their personnel for the 2005 study,
“Gender Sensitivity in the Family Courts,” found that the majority of
judges, prosecutors, and lawyers had not heard of gender fair-language,
which is defined as “oral or written forms of communication which are
not degrading, offensive, or discrimination of women, and are not sexually
suggestive.” Female judges were equally divided on the statement that
“The law is gender neutral”; most female prosecutors disagreed with it.
When surveyed as to their personal beliefs, 51.5 percent of female judges
disagreed with the statement that “rape is about power, not about sex”
while only 30.3 percent agreed. Of the male judges, 65.4 percent disagreed
while only 15.4 percent of them agreed. These findings send a dangerous
signal to women’s rights advocates and to the Supreme Court, because
more male judges have handled rape and sexual harassment cases while
more female judges have decided juvenile delinquency, custody, domestic
violence and child support cases. Both male and female judges also said
15
that decisions on rape cases took a long time to finish, which is the
reason many women do not file complaints.
The belief that lust is the major—or only—factor in rape and other
forms of sexual violence committed against women shows a male
perspective on rape and betrays a perverse view of human sexuality.
Women who have been raped speak of the violation of their sexual self,
not of sexual intercourse. Thus, to view the rape of women by men as
stemming from lust (i.e., excessive sexual desire) is to ignore the abusive
exercise of male power which is what heterosexual rape is. Sexual assault
is a question of power and women are victimized because they are women,
Engendering the Philippine Judiciary
25
viewed as inferior to men, and cannot physically resist a sexual attack.
When a judge believes that it is lust that drives a man to rape, he may
view the woman as the subject of the accused’s passion (who has the
“right” to indulge his desires), rather than someone whose rights have been
violated. Given the gender stereotyping of women and men, this erroneous
view of sexuality leads to the kind of thinking that blames the victim for
wearing seductive clothes, or asks her if she did anything to prevent the
rape, or why she works and walks at night. Worse, the practice of blaming
the victim shifts accountability for the rape away from the rapist. As was
evident in the decision of Judge Garvilles of Bacolod, in the case of the
accused who raped his former grade one teacher, by then a sickly 75year old, lust could not possibly be the motivating factor for rape.
For twenty years, psychologists and sociologists have studied the
psychology of rape and of rapists. Their findings have shown that rape is
a crime of violence, often regarded by the woman as a life-threatening
act in which fear and humiliation are her dominant emotions. Sexual desire
is less of a motivation for the rapist than is violent aggression. Rape is
much more than just the sex act because it is also committed in order to
fulfill nonsexual needs related to power, anger, and aggression. Rape
involves hostility (anger) and control (power) more than passion.
16
In 1999, the decision on the case of People vs. Larry Mahinay
retrogressed to the old notion that rape is a crime of passion, that the
rapist is propelled by lust and not by power or the desire to overpower
his victim. This misconception is often repeated by trial judges who quote,
“Rape is an ignominious crime which necessity is neither an excuse nor
does there exist any rational justification other than lust. But those who
lust ought not to last.”
We submit that judges should throw out the notion about rape in
Mahinay and instead refer to the model decision which used the phrase
and concept “violence against women” for the first time in 1988, or
seven years after the Philippines ratified CEDAW. This was the decision
eloquently written by the Honorable Supreme Court Justice Abraham
17
Sarmiento in People vs. Munoz, which defined rape as a “gender
violation” when the highest court affirmed the conviction of a jeepney
driver who raped his neighbor, a laundrywoman, inside his jeepney.
Understanding the victim’s plight, the Supreme Court held that:
Societies generally are not kind to violated women, exposing
them to ridicule and shame when they report their having been
violated. Rape victims bear the responsibility of proving that they
Engendering the Philippine Judiciary
26
had been raped, that they had not invited seduction, or had not
been unchaste. The process of bearing the burden of proof can
cause deep, and in some cases, irreparable emotional damage on
the victims and the people around their lives. On the other hand,
the harsh hand of social injustice does not seem to apply to the
rapists.
Violence committed against women need not come in the form
of physical brutality alone. In societies where the men are still
considered superior to the women, gender violation presents itself
through the emotional and sexual exploitation of women who are
vulnerable and weak. There must come a time when men should
consider women with great respect and not trifle with their inferior
strengths. In the same vein, there must come a time when societies
should be made up of men and women who are equal in every
level of existence, and who do not exploit the poor and powerless.
Two women, Angela Phillips and Jill Rakusen, in the book Our Bodies,
Our Selves, talk about the kinds of rape apart from that committed
under great threat. They write: “Although most of us think of rape
as a clear-cut, unjustifiable sexual act forced on a woman against
her will, many people, especially men (but not only men) have
misconceptions about what rape is and what it isn’t. In their minds
rape is rape when it happens in an alley, when it is committed by a
stranger, or when there are bruises and signs of physical violence;
but for them rape is not really rape when it happens in a bed,
when it’s committed by a friend or acquaintance, ... or when a
woman appears not to be physically harmed. Many of us women
know that these later rapes are just as much “real rape” as the
former. More men need to understand this too. (underscoring
ours)
While the Supreme Court did not state that rape is a violation of a
woman’s human rights, it created a positive development in jurisprudence
by no longer classifying rape as an act of lust as it has done in earlier cases,
but as “the ultimate expression of contempt for women.” Furthermore, by
citing contemporary literature on rape, the Supreme Court, in effect, tells
officers of the judiciary to keep in step with current scholarship on rape
and gender relations. This decision came nine years before the Anti-Rape
Act of 1997, which amended the provisions of the Revised Penal Code
on Rape, now treating rape as a crime against persons and no longer against
chastity. The problem with classifying rape as a crime against chastity is
that chastity, which is interpreted to mean virginity or purity, will come
into play as an element in making decisions. It then puts the erroneous and
unfair burden on the complainant to prove that she is chaste, rather than
focusing on the criminal act of the accused, even if chastity was not an
Engendering the Philippine Judiciary
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element in the crime. Using the same requirement, and perpetuating the
myth that only “good” and chaste women can be raped, the courts fall in
the trap of stereotyping credible rape victims as only those who belong
18
to the image of a “Filipina of good repute” and the demure “Maria Clara”
type, or those who come from “good families.”
Unfortunately, the Supreme Court’s decisions after People vs.
Muñoz showed inconsistency and its failure to end once and for all the
myths and misconceptions about rape, as a result of which they continue
to pervade Philippine jurisprudence and are copied by undiscerning trial
judges. Not the least of these cases was the decision in People vs. Relox,
which will be discussed later to give an example of gender analysis. In
that case, the Supreme Court acquitted a sixty-year old man who had
been accused of raping his daughter. The court stated that the 33-year
old complainant, who had two children, could have physically resisted
her father and shouted for help, but did not.
Gender Stereotyping of Women’s Roles and Behavior
Aside from gender bias in VAW cases, there is the other problem
of gender stereotyping: women as homemakers and caregivers to children.
This impacts greatly on cases that have an economic angle, or those
involving custody when the child is over seven years old and the father
has the financial means to support the child’s education. It would be
interesting to see a landmark case in which a woman will sue her husband
or partner for economic abuse under the Anti-Violence Against Women
and Their Children Act of 2004 for refusing to give her share of the
conjugal or community funds or business, or of funds earned or properties
bought during the cohabitation of common-law spouses. Or for that
matter, a suit for legal separation filed by a woman against her estranged
husband on the ground of grossly abusive conduct because he has been
controlling the conjugal partnership and does not report or share its income
with her. At present, jurisprudence on “grossly abusive conduct” as a
ground for legal separation is sparse, and judges could interpret the phrase
to mean only physical or repeated verbal abuse, notwithstanding that
Republic Act No. 9262 recognizes other forms of abuse such as
psychological, emotional, and economic abuses.
In the case of Maxey vs. Court of Appeals (G.R. No. L-45870,
May 11, 1984), the Supreme Court, favoring the woman, held that although
the parties were not married, the common-law wife was nevertheless
entitled to one-half of the properties. This decision recognizes the woman’s
Engendering the Philippine Judiciary
28
contribution to the co-ownership of unmarried couples even if she is not
working outside the home. The Supreme Court reasoned that this was
the correct interpretation of the Civil Code because the woman cannot
be expected to give up her role as homemaker and go out to earn an
income.
In rape cases, the frequently used stereotypes of Filipino women
used by the courts are “barrio lass,” “provincial lass,” “decent Filipina,”
and “Maria Clara.” These images of a chaste, virginal, innocent and timid
Filipino woman, used in weighing the woman’s credibility in rape cases,
have been used by the trial courts, repeating the Supreme Court’s
invocation of the same since August 18, 1972 in the case of People vs.
19
Gan. The Supreme Court has been using the “Maria Clara” standard
since 1982 and it has been invoked in four rape cases from 1980 to
20
2004. Similarly, the phrase “barrio lass,” referring to poor village women
who had little education and lack exposure to the “ways of the world”
(the city), appeared in 143 cases from 1901 to 2004. The latest cases
21
22
have been People vs. Tonyacao and People vs. Alberio where the
Supreme Court again used the old argument that “no young and decent
Filipina would publicly admit that she was ravished and her honor tainted
unless such was true.” Even with the rape shield rule for both children
and adult victims, this standard can still pose a problem for women victims
such as foreigners who, in the minds of judges, are too modern and
“liberated.” This may have influenced the justices of the Supreme Court
when they acquitted a man of raping his friend’s 30-year old British
girlfriend in People vs. Salarza (G.R. No. 117682, August 18, 1997)
although then Associate Justice Hilario G. Davide, Jr., dissented.
The “Maria Clara” standard is based on a character in Jose Rizal’s
novel Noli Me Tangere, and refers to a Filipino woman who is demure,
timid, chaste, and submissive. Although Noli Me Tangere is an excellent
novel, Rizal clearly did not intend the justices’ interpretation of Maria
Clara to be the standard for credible complainants in rape cases. This
standard reinforces the erroneous traditional belief that only the chaste
women and women from “good families” (buenas familias, rich, or middle
class and educated families) can be easily believed, or that only women
who are like Maria Clara can be raped. It is an unfair and anachronistic
test. In contrast, no such standard is used to measure the credibility of
men, but the erroneous belief prevails that men who are “good fathers”
or are educated cannot be violators or rapists of women.
Engendering the Philippine Judiciary
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Experiences of Women Litigants and Lawyers
In the survey by Feliciano and Sobritchea et al., female judges stated
that female witnesses face the following problems: (1) intimidation; (2)
suggestive comments; (3) comments on personal appearance, their attire,
and their bodies; and (4) sexist remarks and jokes. On the other hand,
male judges identified sexist remarks and jokes, followed by
23
discriminatory treatment, as the problems confronting female witnesses.
Female lawyers and public prosecutors are not immune from gender
discrimination in the courts. When interviewed by The Gender Justice Awards
research team, the women gave the following accounts of gender bias.
Suggestive Comments
Suggestive comments coming from a judge in cases between
husbands and wives range from telling the litigant wife, off the record, to
“open your arms and open your legs” to her husband to suggesting to a
male litigant that the reason for his wife wanting to annul their marriage
was because he was not able to satisfy her sexually.
Together with a female public prosecutor, two lawyers belonging
to the Gender Watch Coalition filed an administrative complaint against
a Family Court judge who uttered sexist comments in court. In a case for
support, the judge said that the theory of the respondent that his client
could not have fathered the child because he was impotent would fail if
the complainant’s female counsel were to undress.
In cases of rape, including those of a child, judges trivialize the
matter either by making a joke out of the situation and making the witness
an object of ridicule, or by openly supporting the accused. In a Metro
Manila case for rape filed by a sixteen-year old girl who said she was
twelve when she was raped by a priest, the private prosecutor stated
that the judge, while in her chambers, encouraged the child to accept a
monetary settlement. Completely disregarding the child’s feelings and
rights, the female judge of that Family Court told the child that she would
soon forget the rape and advised her to take a bath and expunge the
memory of the incident by sleeping. The presiding judge called the public
prosecutor and the private prosecutor to her chambers and told them
she did not believe that a priest could have raped the complainant and
that the child had probably tried to seduce him because women find it a
challenge and an achievement to make a priest break his vow. The child
rejected the offer of a monetary settlement.
Engendering the Philippine Judiciary
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In the celebrated rape case of People of the Philippines vs. Jalosjos,
the demeanor and language of the judge were far from always ideal,
despite convicting the congressman. When the child was asked what
Jalosjos did to her and she answered “Tinutok niya po sa akin ang ari
niya,” the judge suddenly took over the interpreter’s function and quipped,
“He pointed his organ at me. O, sa kanya (pointing at the child), hindi sa
akin, ha” (to her, not to me), eliciting laughter from the defense lawyers
and greatly embarrassing and intimidating the child.
Some judges even comment on the way litigants and witnesses dress.
In Metro Manila, a female judge of a Family Court told a young woman, a
witness in the rape case of a friend of hers, that she should not wear a
blouse which bared her shoulders (the witness’ blouse had thin straps)
because it disturbed the men in court. The private prosecutor, unable to let
the remark pass and seeing that her witness was embarrassed, remarked,
“Your honor, if the male lawyers are disturbed, that is their problem.” The
defense counsel, a young woman lawyer, said that she agreed with the
private prosecutor. Their joint rebuke of the judge elicited no comment
from the latter.
Attorney Minerva Ambrosio, a member of the Board of Trustees of
Child Justice League, Inc., a non-governmental organization for the
protection of the children’s rights and lead counsel in the Jalosjos case,
recalled another instance in which the judge asked her if she was sure she
was not the complainant. She had to muster all of her lawyerly decorum to
restrain herself from asking the judge if he was sure he was not the accused.
Unfortunately, much of the gender-insensitive language and behavior
of judges and prosecutors is not contained in the stenographic notes either
because they spoke in the dialect and not in English, a signal for the
stenographer to stop taking notes, or they instructed their stenographers
to keep their words off the record. In one case, former judge Adoracion
Cruz Avisado of the Regional Trial Court in Davao City had a lengthy
exchange with the presiding judge who said that men are polygamous by
nature and women should accept that as a fact and live with it. Attorney
Avisado asked for the transcript of a case so that she could make the
judge account for his behavior, only to be told by the stenographer that he
was afraid to do so because granting her request might cost him his job.
It is not the litigants alone who experience gender discrimination.
Female lawyers and court personnel are not spared from some judges’ and
lawyers’ lack of gender sensitivity and use of sexist language, as well as
sexual harassment. The Supreme Court decided on five administrative cases
of sexual harassment against judges from 1950 to August 2004. Of these
Engendering the Philippine Judiciary
31
24
25
five, two judges were dismissed and two were suspended. One judge
was, however, absolved on the finding that the administrative complaint
26
was a harassment suit against the judge. Four more cases as such are
pending at the Supreme Court. The most recent case was that against
Judge Anacleto M. Caminade of the Regional Trial Court Branch 6 of Cebu
27
City, who was accused of sexually harassing a female public attorney
and a female clerk in his sala, by kissing the hand of one of them and the
cheek of the other. He was found guilty of violating Canons 3 and 4 of the
new Code of Judicial Conduct, and was suspended for a period of six
months without pay effective immediately. In addition, he was warned
that a repetition of the same offense would be punished with dismissal
from the service. The Supreme Court wrote:
Those who serve in the judiciary, particularly justices and judges,
must not only know the law but must also possess the highest degree
of integrity and probity, and an unquestionable moral uprightness
both in their public and private lives.
In this particular case, we are principally concerned with the
moral fiber of Judge Caminade. His penchant for teasing and
showing unwelcome affection to women indicates a certain moral
depravity and lack of respect towards his female employees. They
were his subordinates and he should have treated them like his
own children. xxx no position exacts greater moral righteousness
than a seat in the judiciary. Performing as he does an exalted role
in the administration of justice, a judge must pay a high price for
the honor bestowed upon him. Thus, a judge must comport himself
at all times in such a manner that his conduct, official or otherwise,
can weather the most exacting scrutiny of the public that looks up
to him as the epitome of integrity and justice.
Canons 3, 5 and 4, 6 of the new Code of Judicial Conduct
mandate, respectively, that “judges shall ensure that not only is
their conduct above reproach, but that it is perceived to be so in
the view of the reasonable observer” and that “judges shall avoid
improprieties and the appearance of impropriety in all of their
activities.” These very stringent standards of decorum are demanded
of all magistrates and employees of the courts.
Judge Caminade’s behavior must be sanctioned. We are neither
amused by his claims of innocent playfulness nor impressed by his
excessive display of congeniality. He acted beyond the bounds of
decency, morality and propriety. He failed to meet the standard of
conduct embodied in the Code of Judicial Conduct. His abusive
and distasteful acts unmistakably constituted sexual harassment
because they resulted in an intimidating, hostile, or offensive
environment for his female subordinates.
Engendering the Philippine Judiciary
32
The other administrative cases of sexual harassment decided by
the Supreme Court as of July 2004, aside from Veloso vs. Caminade,
were Biboso vs. Villanueva (A.M. No. MTJ-01-1356, April 16, 2001),
Simbajon vs. Esteban (A.M. No. MTJ-98-1162, August 11, 1999), Dawa
vs. De Asa (A.M. No. MTJ-98-1144, July 22, 1998), and Vedaña vs.
Valencia (A.M. No. RTJ-96-1351, September 3, 1998). Chief Justice
Davide, Jr., penned the decision in the case Vedaña vs. Judge Valencia.
Here are excerpts from that decision:
Before closing, it is apropos to discuss the implications of the
enactment of R.A. No. 7877 or the Anti-Sexual Harassment Law
to the Judiciary. Under our system of governance, the very tenets
of our republican democracy presuppose that the will of the people
is expressed, in large part, through the statutes passed by the
Legislature. Thus, the Court, in instances such as these, may take
judicial notice of the heightened sensitivity of the people to genderrelated issues as manifested through legislative issuances. It would
not be remiss to point out that no less than the Constitution itself has
expressly recognized the invaluable contributions of the women’s
sector to national development, thus the need to provide women
with a working environment conducive to productivity and befitting
their dignity.
In the community of nations, there was a time when
discrimination was institutionalized through the legalization of now
prohibited practices. Indeed, even within this century, persons were
discriminated against merely because of gender, creed or the color
of their skin, to the extent that the validity of human beings being
treated as mere chattel was judicially upheld in other jurisdictions.
But in humanity’s march towards a more refined sense of civilization,
the law has stepped in and seen it fit to condemn this type of conduct
for, at bottom, history reveals that the moving force of civilization
has been to realize and secure a more humane existence.
Ultimately, this is what humanity as a whole seeks to attain as we
strive for a better quality of life or higher standard of living. Thus,
in our nation’s very recent history, the people have spoken, through
Congress, to deem conduct constitutive of sexual harassment or
hazing, acts previously considered harmless by custom, as criminal.
In disciplining erring judges and personnel of the Judiciary then,
this Court can do no less.
Aside from taking note of administrative cases against judges, the
Supreme Court has shown that it will not let pass instances of judges’
misconduct or insensitivity when these appear in the transcript of
28
stenographic notes. In People vs. Nuguid, the judges and lawyers were
chastised by the highest court for their insensitivity to the situation of
Engendering the Philippine Judiciary
33
complainants in rape cases during the trial. The following cross-examination
of a rape victim was captured in the transcript of stenographic notes in
that case by a diligent stenographer.
Q:
And after he dragged you to the lower bed what else did
you do?
A:
Yung pong paa ko eh ginanoon niya po sa paa nya.
Kinross niya po. (He crossed his legs over my legs like
so.)
THE COURT:
Q:
You mean doon sa pagitan ng ano mo? (You mean between
your legs?
A:
Yuong d[a]lawa ko pong paa ginanyan nya po yung paa
ko.
Q:
Sige i-demonstrate mo. (Demonstrate it.)
A:
Inangkla po.
Q:
Kaya nga pinagitan nya yong sa paa niya sa side mo?
A:
Hindi po. Ganito po. Yung paa niya ginanyan po niya.
Q:
Kaya nga. Di nakabuka yung paa mo. (So your legs were
apart.)
PROS. GURAY:
Q:
Di ba nakabukang ganyan? (Your legs were apart like so?)
THE COURT:
Oo. (Yes.)
PROS. GURAY:
Tapos yung paa niya nakaganoon. (And his legs were like
so?)
A:
Opo. (Yes.)
PROS. GURAY:
Pareho. (Both legs)
A:
Opo. (Yes.)
PROS. GURAY:
I do that myself so I know. (Atty. Garcia laughs.)
ATTY. GARCIA:
Very incriminating. (Laughs)
Was the judge’s manner of questioning necessary for him to determine
the credibility of the witness or the facts of the case? His questions only
served to embarrass and degrade the complainant. The Supreme Court,
Engendering the Philippine Judiciary
34
through Justice Antonio Carpio, did not let this unethical conduct pass
without comment. Although the judge, the defense counsel, and the
prosecutor were not administratively sanctioned, Justice Carpio wrote:
xxx A rape victim is physically, socially, psychologically and
emotionally scarred, resulting in trauma which may last a lifetime.
It was thus highly inconsiderate for the prosecutor and the defense
counsel to trade quips at the precise time Rowena was reliving her
harrowing experience. Courts are looked up to by people with
high respect and are regarded as places where litigants are heard,
rights and conflicts settled and justice solemnly dispensed. Levity
has no place in the courtroom during the examination of a victim
of rape, and particularly not at her expense.
Some Supreme Court Decisions
on Rape
T he Supreme Court has had a fairly high rate of convictions for rape
cases. In 2000, Chief Justice Davide, Jr., penned the conviction in thirteen
rape cases with no reversals. The Supreme Court has held that even
29
prostituted women can be raped. Still, the bias of many judges and
prosecutors against prostituted women comes into play when they weigh
the credibility of the complainant, especially when she is poor. For example,
the Supreme Court decisions in People vs. Estebal (G.R. No. 82768,
May 5, 1989), People vs. Ritter (G.R. No. 88582, March 5, 1991),
People vs. Patila, (G.R. No. 78772, May 23, 1991) and People vs.
Malunes (G.R. No. 114692, August 14, 1995) are inconsistent with the
previously cited Supreme Court decisions, in that these decisions give
the conclusion or insinuation that cases of rape filed by prostituted women
or children cannot prosper.
In People vs. Estebal, for example, the Court stated that “It will be
inconsistent with human experience that a woman who is thirteen (13)
years old and a virgin would initiate a desire for sex [sic] intercourse, since
she is without experience and an innocent neophyte, unless she is a child
prostitute or a corrupted child.” In the 1995 case of People vs. Malunes,
30
when Republic Act No. 7610 was already in effect, the Court wrote that,
Engendering the Philippine Judiciary
35
“This Court cannot believe that a 12-year old girl would willingly have sex
with a man more than twenty years her senior and whom she treated as
her grandfather because he is her grandfather’s cousin. There is no evidence
at all that she is a sexual pervert, a sex maniac, or a prostitute.” These
decisions lead us to the issue of whether or not a prostituted child can
freely give consent to a sexual act. Republic Act No. 7610 provides
protection to a child who has been sexually prostituted. But even if some
of the above-mentioned decisions were written before the effectivity of
Republic Act No. 7610 in 1992, we have to point out, with due respect,
the honorable justices could have resorted to the United Nations Convention
on the Rights of the Child to ensure the protection of these children.
The Supreme Court made a similar conclusion in the much-publicized
case of People vs. Ritter (G.R. No. 88582, March 5, 1991). The complainant
in that case, a 12-year old girl, died after she was raped and a vibrator was
found lodged in her private parts. The Court acquitted the accused for lack
31
of a law penalizing as rape the insertion of an object (vibrator) in the
victim’s private parts, and again expressed its view that rape cannot be
committed against a “prostitute” even if she is a child. However, the ponente,
Justice Hugo Gutierrez, Jr., lamented that there was no law penalizing
pedophilia at that time that could have been applied to the accused, and
32
urged the government to pass such a law. In 1992, Republic Act No. 7610,
or “Act Providing for Stronger Deterrence and Special Protection Against
Child Abuse, Exploitation and Discrimination and for Other Purposes,” was
passed by Congress. It is now widely used to penalize sexual exploitation of
children. In 1997, Republic Act No. 8353, otherwise known as the AntiRape Act of 1997, was passed. It penalizes the insertion of an object in the
victim’s private parts as rape by sexual assault, although unlike rape through
penile penetration, it is a bailable offense. The Anti-Rape Law of 1997
stands as it is today, but greater gains would have been made if the age for
statutory rape had been raised from less than twelve years to less than
sixteen just like in other Asian countries.
While we analyze Supreme Court decisions on VAW that leave much
to be desired, we should also take note of trailblazing decisions, such as People
vs. Cabral (G.R. No. 131909, February 18, 1999) where the Supreme Court,
through ponente Justice Flerida Ruth P. Romero wrote 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 symptom” show
“evident guilt” of the accused. There is an increasing use by private prosecutors
of post-traumatic stress disorder as a proof of fact in rape and other cases of
Engendering the Philippine Judiciary
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violence against women, and it will soon take center stage when battered
woman syndrome as a justifying defense under Republic Act No. 9262 will
be raised in court. This ponencia by Justice Romero is also significant because
the Supreme Court held that resulting weakness and dizziness which deprived
the complainant of reason, will and freedom must be viewed in light of her
perception and judgment at the time of the commission of the crime, and not
by any hard and fast rule because in “rape cases, submission does not necessarily
imply volition” (People vs. Querido, G.R. No. 95319, February 7, 1994, 229
SCRA 745). With the increasing number of complainants who were drugged
or drunk before being raped, this decision will be a great help to the victims.
Another notable decision is People vs. Belandres (G.R. No. L-2801,
March 31, 1950) written by Justice Luis P. Torres as early as 1950,
which set the standard for cross-examination of rape victims. The
Supreme Court commented on the “merciless manner in which the crossexamination of the complainant was conducted, when she was quizzed
about the details of the criminal assault upon her subsequent reaction, as
if she were expected to live over again her terrible experience.” According
to the Supreme Court, the manner in which accused’s counsel crossexamined the complainant “has the effect of adding insult to injury.” While
it is true that it is the right of the accused, through counsel, to subject the
prosecution witness to rigid questioning in order to bring forth the truth,
the Supreme Court ruled that the exercise of this right has limitations.
Another is the dissenting opinion of Chief Justice Hilario G.
Davide, Jr.,and Justice Florenz Regalado in People vs. Salarza (G.R. No.
117682, August 18, 1997) where they discussed the element of lack of
consent in rape cases from a gender perspective. Then Associate Justice
Davide, Jr., wrote:
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 (AQUINO, op. cit., 393). Deprivation of reason need not
be complete, as mere mental abnormality or deficiency is enough.
(Id., 393–394) 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.
Rather, the inquiry should likewise determine whether the victim
was fully informed of all considerations so as to make a free and
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informed decision regarding the grant of consent. It is only through
this two-tiered test that a holistic appraisal of consent may be had.
In our jurisprudence, carnal knowledge of a sleeping woman
is rape (People v. Dayo, 51 Phil. 102 [1927]; People v. Corcino,
53 Phil. 234 [1929]; People v. Caballero, 61 Phil. 900 [1935]
and People v. 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 (People v. Conde, supra, at 767),
obviously deprives a woman of the ability to consent. However, to
repeat, since it is “absence or lack of will” which is the primordial
factor in the second circumstance of rape, then I submit that to
construe the term “unconsciousness” exclusively in light of physical
considerations would be unduly restrictive and fail to heed the
gravamen of the offense, i.e., lack of consent.
Gender Analysis of Law
f judges are to use gender analysis in their decision-making process,
they must be well informed about gender and its functions, and be
provided a framework for analyzing cases. It is hoped that the following
discussion, will give judges these tools.
I
What is gender? Gender refers to the socially or culturally
constructed characteristics, roles, attitudes, and values ascribed as
appropriate to women and men. As such, gender serves as a principle or
basis for classifying or organizing people into “women” or “men,” in the
same way that class and age are principles that underlie the classification
of people into “rich” or “poor” and “young” or “old,” respectively.
Because culture impacts on “biology” or “nature,” the concept of
gender is often used interchangeably with sex—the word for biologically
determined characteristics of women and men. Thus, a conceptual
distinction between sex and gender is needed lest one confuse the
social changes being advocated in the name of gender with changes that
would tamper with biology or nature. To keep the concepts distinct
from each other, one should bear in mind the aphorism that “sex is what
we are born with and gender is what happens afterwards.”
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Functions of gender. Gender is manifested through its various
functions: as a property of language, as an ideology, as a means of social
control, and as a maintainer of social distance.
Gender as property of language. In English grammar, it is gender
that determines whether a noun or pronoun is to be classified as “feminine,”
“masculine,” or “neuter.” (In other languages, gender is a property of
adjectives and verbs.)
The basis for determining the “gender” of a word is a characteristic
that word possesses that may be associated with either of the sexes if the
word refers to someone animate. For example, grammatically, the gender
of the word girl is feminine while that of brother is masculine because girl
and brother clearly suggest femaleness and maleness, respectively; thus, girl
carries the pronouns she/her/hers and brother the pronouns he/him/his. In
the case of some words that apply to both males and females (e.g., pilot,
nurse) or inanimate objects (e.g., car, ship), the gender assigned to them will
depend on whether such words are perceived to be associated with males
or females. Thus, pronouns for pilot are the masculine (he/him/his) because
most pilots are male; likewise, pronouns for nurse are the feminine (she/her/
hers). Feminine pronouns are also used for car and ship because of the notion
that, like females, they are passive.
Gender, then, as seen in its function as a property of language, is
determined not only by sexual characteristics of males and females but
also by characteristics perceived to be appropriate to the sexes. In other
words, gender makes distinctions between women and men not only on
account of sex characteristics that are determined by biology or nature
but also on the basis of gender characteristics constructed by culture or
society. This dynamic effectively blurs the line between nature and culture,
thus the frequent interchange in the use of sex and gender and the
consequent lack of gender awareness or sensitivity.
Gender as ideology. Gender-based ideology is a set of socially and
culturally constructed ideas and beliefs related to the biological or natural
attributes distinct to women and men. It includes notions about the roles
and role standards expected of them. Intrinsic to distinctions between men
and women created by gender is the belief in the superiority of all males and
the inferiority of all females regardless of biologically determined facts (e.g.,
genetic capital) or culturally constructed realities (e.g., higher education,
better health) of individual males and females. Since most known cultures
value males more than they do females, gender-based ideology supports
and maintains gender inequality or the notion that men are superior to women.
Gender-based ideology is also known as sexism.
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Gender as a means of social control. Social control refers to the
ways in which a group requires its members to conform to its demands.
Gender-based social control mechanisms or processes make people
conform to ideas and beliefs about men and women, including the
inequality that results from distinctions between them. Social control can
come in the form of laws that carry external sanctions, or through customs,
traditions, mores, folk sayings, popular songs, or even fashion that may
be internalized as part of an individual’s personality. Thus, gender makes
a person behave according to what is expected of him or her as man or
woman either because of laws that require him or her to do so, or because
he or she has internalized his or her culture’s prescriptions for genderbased thinking and behavior.
Gender as maintainer of social distance. Social distance is the degree
of interaction between groups or the feeling of separation or actual
separation between groups. Gender-based social distance is carried out
by and manifested through gender-based stereotypes, slurs, prejudice,
discrimination, and violence. In themselves, manifestations of social
distance are mechanisms that spring from and support inequality between
groups. While both groups keep a social distance, it should be noted that
the group more likely to enforce and maintain its distance is that which is
considered socially superior because society vests it with greater social
power.
Stereotypes are a set of unexamined images people hold of certain
groups; in many cases, those images do not hold true for individual
members. Traditional gender-based stereotypes of men project them to
be strong, rational, brave, decisive, protective, and whatever
characteristics may be consistent with the deeply entrenched notion of
male superiority. Conversely, traditional gender stereotypes of women
are consistent with the belief in female inferiority, and so are the opposite
of stereotypes for men: weak, emotional, cowardly, wishy-washy, in
need of protection, and so forth. Note that masculine stereotypes indicate
power while feminine stereotypes do not. In other words, as genderbased stereotypes are rooted in the ideology of gender inequality, they
privilege and empower men but deprive and disempower women.
Gender stereotypes determine traditional gender roles and gender
role standards—masculinity for men and femininity for women. Thus,
when people are trapped in stereotypes of conventional femininity and
masculinity, women reject, for example, strength, even when they are
strong, in the same way that men deny their weakness when they need
assistance.
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Slurs are disparaging utterances intended to put down members of
other groups. Believing and acting on gender stereotypes, men and women
as members of two opposing groups demean each other through genderbased slurs often passed off as humor as in the case of sexist jokes. While
slurs or putdowns are generally considered harmless, they nevertheless
reinforce the superiority of the slur makers and the inferiority of the objects
of the slurs; gender-based slurs, oftentimes done through sexist jokes, are
expressions that reinforce unequal power relations between men and women.
Prejudice is an attitude that shows a low regard for an individual
because she or he belongs to a group that is considered inferior. For example,
gender-based prejudice is evident in a person who disdains women lawyers
because he or she thinks law is better suited for men; it is also shown by
persons who think that male nurses cannot fully care for the sick because
only women have the “innate skill” to do so. In other words, one is a victim
of gender prejudice when he or she is “prejudged” on the basis of his/her
being a man or woman, not on his/her merit or qualification as an individual.
Discrimination is prejudice expressed through policy or practice.
Gender-based discrimination is denial of opportunities (for example,
training, jobs, benefits) on grounds that such opportunities are considered
inappropriate for a given sex. Article I of CEDAW defines discrimination
against women thus:
“Discrimination against women” shall mean any distinction,
exclusion or restriction made on the basis of sex which has the
effect or purpose of impairing or nullifying the recognition,
enjoyment or exercise by women, irrespective of their marital status,
on a basis of equality of men and women, of human rights and
fundamental freedoms in the political, economic, social, cultural,
civil or any other field.
Gender-based violence is harm or injury inflicted by people on
others or on themselves on account of people’s inability to meet the
standards or expectations of gender and sex roles. As an expression of
social distance, gender-based violence progresses from gender-based
stereotypes, slurs, prejudice, and discrimination and exacts the highest
toll on human life and potential.
Gender, however, is not the only principle that organizes and stratifies
societies. Like gender, other organizing principles such as age, class, race
or ethnicity, ability, sexual preference, among others, generate unequal
power relations among peoples. Like gender that creates sexism, they
underlie ideologies that create ageism (age-based ideology), classism (class-
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based ideology), racism (race-based ideology), able-ism (ability-based
ideology) and heterosexism (sexual-preference based ideology). Like gender
ideology, the -isms mentioned are ideologies of inequality that create their
respective mechanisms of social control and social distance.
Of all organizing principles, gender is the most basic because people
form their identities and are classified as male or female first before they
become, or are further classified as, rich or poor, young or old, colored
or not, able or disabled, heterosexual or homosexual. Consequently,
gender-based ideology or sexism crosscuts other ideologies of inequality:
young boys have better opportunities than young girls; older women are
more at risk for neglect than their male counterparts; women are more at
risk for poverty than men; poor women are poorer than poor men.
What is gender analysis? Gender analysis emerged as a type of
social analysis in the mid-1980’s in response to the need for
“mainstreaming” gender perspectives into development policies,
programs, and projects. Used to gather data for information and advocacy
planning, gender analysis may be carried out through the appropriate use
of any of the following frameworks: Harvard Analytical Framework
(also known as Gender Roles Framework or Gender Analysis
Framework) developed by Overholt, Anderson, Austin, and Cloud; the
Framework for People-Oriented Planning in Refugee Situations (or POP),
which is an adaptation of the Harvard Analytical Framework; the Moser
Framework developed by Caroline Moser of the Development Planning
Unit, University of London; the Gender Analysis Matrix (GAM)
developed by A. Rani Parker; the Capacities and Vulnerabilities Analysis
Framework which resulted from the International Relief and Development
Project at Harvard University; the Women’s Empowerment Framework
developed by Sara Hlupekile Longwe of Lusaka, Zambia; and the Social
Relations Approach developed by Naila Kabeer at the Institute of
33
Development Studies in Sussex University.
Why is gender analysis of law important? When applied to law
and its practice, gender analysis can reveal the assumptions or biases
about men and women that underpin a legal principle, pronouncement,
or decision. For example, a gender analysis of the Indian Penal Code
34
(IPC) done by Prof. Dr. Ved Kumari of the Faculty of Law, Delhi
University has revealed the following:
• A seemingly gender-neutral matter as classification of offences as
cognizable or non-cognizable and bailable or non-bailable has a
differential impact on men and women.
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• The bases of law and jurisprudence that concerns men and women
are public-private dichotomy (the split between public conduct on
one hand, and on the other, behavior in the privacy of one’s personal
or domestic life) and patriarchal values.
• Aspects of life and law that involve gender relations—sexuality
(obscenity, sexual assault, flesh trade, kidnapping and abduction,
rape and sexual assault, prostitution, trafficking and illicit
intercourse), procreation (abortion, son preference, female
infanticide), and marriage (dowry death)—affect women and men
differently.
• The double standard leads to the possibility that the defenses of
grave and sudden provocation and private or self defense works
differently, or may not work at all, for women survivors of domestic
violence who kill their spouse.
• Indian law’s bias, if not imposition, of heterosexuality;
• Its blindness to messages that carry gender discrimination and
misogyny;
• Its failure to reflect contemporary findings on pornography as this
relates to sexual violence;
• Its denial of women’s agency and autonomy;
• Its assumption, in cases of rape or illicit sexual intercourse, that a
woman is responsible not only for her behavior, but also for a
man’s sexual misbehavior stemming from the sexist belief that men’s
sexuality is, by nature, uncontrollable;
• Its purported gender neutrality in matters related to procreation in
a social and psychological context that clearly puts females (pregnant
women, female infants or fetuses) at risk;
• The exclusion of men (as well as of women) from legal liabilities
owing to gender stereotypes.
Kumari’s opening paragraph in the conclusion to her analysis is instructive:
The above analyses show the latent and patent gender biases
operating in the conceptualisation, formulation and operation of
criminal law. In its present form, it excludes perspectives, interests,
and experiences of women to a large extent by maintaining the
private-public dichotomy and incorporation of patriarchal values.
It also reinforces the typical stereotypical image of women as weak
and in need of protection. With its current patriarchal nature and
gender biases, it is not surprising that the law enforcement officers
have negative attitudes toward offences against women, resulting
thereby in their refusal to register complaints, or in frivolous and
delayed investigations or acquittal or imposition of nominal
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punishments in case of conviction. As a result, women who take
recourse to legal remedies find the system to be more cumbersome
than supportive. This in turn results in hesitation to take recourse to
criminal law in times of distress.
While the “deconstructive” aspect of gender analysis can expose
the failure of the law to consider the social realities of women or, for that
matter, of disempowered or marginalized sectors of society such as the
poor, ethnic minorities, or persons with disabilities, it has a
“reconstructive” dimension that can point to ways of reconstituting law
in such a way that the experiences, needs, and concerns of women may
be considered and, thus, enhance the capacity of the legal system to
provide justice for both women and men.
Information gained from gender analysis of law has led to continuing
discourses for law reform. It has also resulted in actual changes in law
and jurisprudence or the enactment of laws to address crimes of violence
against women such as: Republic Act No. 7877, otherwise known as
the Anti-Sexual Harassment Act of 1995; Republic Act No. 8353,
otherwise known as the Anti-Rape Act of 1997; Republic Act No. 9208,
otherwise known as the Anti-Trafficking in Persons Act of 2003; and
Republic Act No. 9262, otherwise known as the Anti-Violence Against
Women and Their Children Act of 2004.
Gender analysis is imperative in judicial practice in order to adhere
to the principles of substantive equality (in practice) and not mere formal
equality in law. Thus, CEDAW definition of equality uses the concept
of equality that says that “all treatment that results in inequality is
discriminatory, which means that if a woman receives equal treatment to
men but is left in an inferior position due to the treatment, the treatment
itself is discriminatory although its objective was equality.” CEDAW
definition does not say that women should be treated as equals of men in
order to eliminate discrimination.
The State obligations of the Philippine government have to be
complied with not only by the executive and legislative departments but
also by the judiciary. Given the “male” quality of jurisprudence in the
Philippines, the courts have a very significant role to play in ensuring the
substantive equality of men and women and the enjoyment of their human
rights. Aside from CEDAW, the Philippine government is bound by
international law to mainstream gender in all government agencies in
compliance with its commitment to the Beijing Declaration and Platform
for Action (1995) adopted by the Fourth World Conference on Women,
and other international agreements on gender mainstreaming.
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Costa Rican human rights lawyer Alda Facio Montejo, jurist and
35
writer, offers in Gender Analysis of Law: A Methodology the following
elements in a framework of gender analysis of law:
1. Recognition of the subordinate social position of women in reference
to men and women’s consequent conditions of vulnerability
2. “Discrimination” and “equality before the law” as defined by
CEDAW
3. Clarification of basic concepts: patriarchy, sexism, machismo,
power, gender, sex, feminism
4. Use of gender perspectives
5. Uncovering of androcentrism in law
Facio’s framework is foregrounded by her view of law as a
departure from a notion of law as a system of norms directed at members
of a given society that has only two components: substantive (or formalnormative) and structural. She submits that law should be regarded as
having a third component—the political-structural—because law includes
the attitudes and knowledge that people have of the law’s substantive
and structural components. Facio notes that the three components are
“dialectically related to each other in such a way that one component is
constantly influenced, limited and/or defined by the other components
at the same time that the one component influences, limits, and/or defines
the others.”
An alternative framework for gender analysis of law may take the
following elements into consideration:
•
•
•
•
Instances of sexism in language, ideology, and social control
Gender stereotypes, slurs, prejudice, discrimination, and violence
Dynamics of power and gender-based disempowerment
Assumptions or practices that cause the exclusion, invisibility, or
subordination of women in legal doctrine, legislation, interpretation,
or enforcement of law
• Adverse experiences of women in dealing with the justice system
Example: Gender Analysis of People vs. Relox
Among the decisions of the Supreme Court on cases of VAW,
specifically on rape, People vs. Relox (G.R. No. 149395, April 28, 2004)
stands out because it was handed down recently, and at a time when
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women’s rights advocates expected the gains in the high court’s genderresponsiveness programs to be improved and sustained. Instead, People
vs. Relox rang alarm bells for women’s rights advocates, warning them to
be continuously on their guard for trial courts’ and Supreme Court decisions
that perpetuate the patriarchal view of the law, the myths about sexual
violence, and the misconceptions on how women should react to rape.
In People vs. Relox, the Regional Trial Court of Romblon convicted
the accused of raping his daughter, who was thirty-three years old at that
time. The Supreme Court, repeating previous decisions, used its three guiding
principles in reviewing rape cases: (1) that an accusation for rape can be
made with facility, as it is difficult to prove but more difficult for the accused,
though innocent, to disprove; (2) that in view of the intrinsic nature of the
crime, where only two persons are usually involved, the testimony of the
complainant must be scrutinized with extreme caution; and (3) that the
evidence for the prosecution must stand or fall on its own merit, and cannot
be allowed to draw strength from the weakness of the evidence of the
36
defense. The Supreme Court found that, “while it may be said that tenacious
resistance from the victim is not a requirement for the crime of rape, the
37
lack of evidence signifying an obstinate resistance to submit to the
intercourse, naturally expected from an unwilling victim, could likewise
indicate that no rape has occurred” (underscoring ours).
In acquitting the accused, the Supreme Court wrote that the
complainant could have fled, shouted for help, fought off her frail father,
or awakened her younger brother. There was no dissenting opinion. All
previous Supreme Court decisions stating that the moral ascendancy of
the accused over the victim who is his daughter or stepdaughter is
38
sufficient to intimidate the victim, hence no proof of physical or any
resistance is required of the victim, were thrown away in People vs.
Relox. The Supreme Court stated that the principle of moral ascendancy
was inapplicable in this case, mainly because the victim was already
thirty-three years old and the mother of two children. The danger in this
ruling is that it could open the doors to reversal of previous rulings on
moral ascendancy in cases of incest rape.
Judge Ma. Nimfa Penaco-Sitaca analyzes People vs. Relox as follows:
To Filipinos, laughter is an expression of many feelings other
than mirth, pleasure or joy. Filipinos laugh when embarrassed.
They laugh when moved to tears. They laugh when they are at a
loss for words. Laughter is a cover-up for many kinds of feelings
that they find difficult to express. When the complainant, on the
witness stand, was asked about her father’s penis, perhaps she
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smiled, covering her mouth, or giggled in embarrassment.
Certainly, she did not laugh to express mirth. Definitely, she did not
find her father’s penis penetrating her a hilarious matter. However,
it may have been Adela’s laughter on the witness stand, among
others, that prejudiced her case.
Accused had ordered his wife, the complainant’s mother, out
of his house. His was a voice that brooked no defiance. When, in
the dead of night, he came to the complainant and demanded that
she take her mother’s place, she could only plead in anguish,
“Father, stop it, have pity on me!” Hers was a voice she could not
raise high enough to defy her father, notwithstanding her 33 years.
Too long subjugated by his male authority, she could only plead for
his mercy. Reverence and respect for her father was too deeply
ingrained in the complainant that she, typical of abused children,
could not and would not fight him in the manner she would fight or
resist another man.
The court said that “rape is committed by having carnal
knowledge against or without the consent of the victim.” When the
complainant cried, “Father, stop it, have pity on me!” was it not
enough to show that her father’s act was against or without her
consent? The court added, “While it may be said that tenacious
resistance from the victim is not a requirement for the crime of
rape, the lack of evidence signifying an obstinate resistance to submit
to the intercourse, naturally expected from an unwilling victim,
could likewise indicate that no rape has occurred.” But then, as the
court already said, tenacious or obstinate resistance is not required—
was it not enough that complainant pleaded with her father, “Father,
stop it, have pity on me!” to show that her father’s invasion of her
body was unwelcome?
The court further said, “The manner by which the complainant
had claimed she resisted her attacker does not fit with what is
naturally expected given the situation she was placed in.” It should
not be forgotten that the complainant was not dealing with just any
attacker—it was her father she was resisting, a father whose
authority she had reverenced and respected all her life. All she
could do was plead for his mercy, as she said “Father, stop it, have
pity on me.” Certainly, the manner by which she resisted her father
was in keeping with her subjugated position.
Having in mind the father’s subjugation of her spirit, it will be
easy to understand: a) why the complainant could not put up more
resistance against her father who, incidentally at 60, was not old at
the time of the rape. As the complainant’s mother testified, he was
still sexually active as most men of that age are; b) why the
complainant did not scream in order to wake up the children. In
her mind, shouting for help was an active act of defiance that she
could not bring herself to do. Rousing the children would result in
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their seeing her father and herself in an unpleasant situation that
would dishonor him in their eyes; c) why the complainant only tried
to reach for her brother when she could have attempted to wake
him up by screaming.
Why did the complainant not flee from her father after he let
her go? Where would she go in the dead of night? Her nearest
neighbor was a kilometer away, she had been violated in the sanctity
of her home. Could she risk another violation outside? Thus, she
merely turned her back, sleepless for the rest of the night, waiting
for the comforting light of day to empower her to take action against
her father.
Reliance on the doctrinal rule that as between a father and his
daughter in incestuous sexual assault, the former’s moral
ascendancy and influence over the latter sufficiently substitutes force
and intimidation is not misplaced in this case. A father’s ascendancy
and influence over a daughter is not like a cloak that a daughter
can take off at will, just because she has reached a certain degree
of maturity. Years of abuse can take a toll on the human spirit and
will. Besides, there is no mention of a husband in this case and it
appears that the complainant, with her three children in tow, lived
with her father, apparently very much under her father’s authority
and “protection.”
How could a daughter charge that she had been raped by her
father and have her private parts examined if it were not true?
What motive did she have in bringing the action against her father
and have him incarcerated for the rest of his life if he had not truly
raped her?
It may have been true that the complainant’s father, at the
time of the hearing, presented a sorry sight—he was so sick and
weak that he could hardly walk, making the claim that he had
raped her harder to believe. The complainant, however, had said
that at the time of the rape, he was still strong. Her father’s refusal
to deny the charge should have been taken as an admission.
The court further declared, “One of the rules observed in
examining the testimony of a complainant in rape cases is that it
must not only proceed from the mouth of a credible witness but
must be credible in itself such as the common experience and
observation of mankind can approve under the circumstances.
Whatever is repugnant to these standards becomes incredible and
lies outside judicial cognizance.”
It was truly unfortunate that the Court could not understand the
complainant’s conduct. It is submitted that her response to her
father’s bestiality is exactly how abused children would respond.
The response is common and should not be treated as repugnant
to the so-called standards of credibility.
Engendering the Philippine Judiciary
48
This case shows more than ever why there is a need to teach
justices and judges gender sensitivity. Unable to understand the
female psyche and the workings of a woman’s mind, they cannot
take judicial cognizance of women’s “incredible” testimonies. They
would always dismiss women like the complainant as incredible
witnesses with incredible testimonies. They thus sentence the women
who have mustered the courage to come to court to renounce
their abusers to live out their lives in hopelessness and despair,
with their oppressors freely breathing down their backs. Gender
sensitivity will enable women who come to court with their stories
of woe to obtain the kind of justice they hope for, justice that would
enable them to walk out to freedom.
CEDAW
and Judicial Practice
I n the interpretation of domestic laws, or when domestic laws are
lacking or insufficient to protect women from discrimination, judges can
use the United Nations Convention on the Elimination of All Forms of
Discrimination Against Women or CEDAW. Often called the International
Bill of Rights of Women, CEDAW was adopted by the UN General
Assembly on December 18, 1979 and came into force as a treaty on
September 3, 1981. With 183 ratifications, CEDAW is second to the
Convention on the Rights of the Child as the human rights instrument in
the United Nations with the highest number of ratifications as of March
2006. A copy of CEDAW is in Appendix A.
The CEDAW Committee in 1992 issued General Recommendation
No. 19, which provides that gender-based violence is an issue of gender
discrimination and that states should include information on this matter in
their reports to the CEDAW Committee. On December 20,1993, the
UN General Assembly adopted the Declaration on the Elimination of
Violence Against Women (DEVAW), which defined violence against
women for the first time and enjoined governments to take specific
measures to eliminate VAW. The definition of VAW in the Anti-Violence
Against Women and Their Children Act of 2004 was patterned after the
39
definition in DEVAW.
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Radhika Coomaraswamy, former United Nations special rapporteur
40
on violence against women, notes that violence against women can be
committed by individuals as well as by the State, and we quote:
This declaration provides the normative framework for all
international action in the field of violence against women. Article
1 defines violence against women as “any act of gender-based
violence that results in, or is likely to result in, physical, sexual or
psychological harm or suffering to women, including threats of
such acts, coercion or arbitrary deprivation of liberty, whether
occurring in public or private life.” Violence includes, but is not
limited to, physical, sexual and psychological violence in the family
such as battering, sexual abuse of female children in the household,
dowry-related violence, marital rape, female genital mutilation and
other traditional practices harmful to women. The Declaration also
calls on states to condemn and eliminate all forms of violence against
women in the general community. These include rape, sexual abuse,
sexual harassment and intimidation whether at work, in educational
institutions or elsewhere, as well as trafficking and forced prostitution.
Finally it recognizes that violence can be perpetrated as well as
condoned by the State.
CEDAW comprehensively addresses all the spheres in women’s
lives, such as the civil, political, economic, social, and cultural, including
family life. Among the rights guaranteed to women is the right to be free
from all forms of violence—physical, sexual, emotional, mental or
41
economic. It carries with it the principle of State obligation, which means
that women are no longer dependent on the goodwill of the State; rather,
the State has responsibilities to women from which it cannot withdraw.
Included in these State obligations is the duty to enact laws and policies
for the protection and empowerment of women, and those that ensure
gender equality. CEDAW prohibits actions and policies that discriminate
against women or put them at a disadvantage.
The Philippine government signed the Optional Protocol on
CEDAW on March 21, 2000 and ratified it on November 12, 2003. The
Optional Protocol is an inquiry procedure through which the CEDAW
Committee can review complaints filed by individual women for grave
and systematic violation of their rights guaranteed by the Convention. It
came into force on December 22, 2000. As of June 5, 2006, of the 183
States Parties to CEDAW, 79 countries have become signatories to the
Optional Protocol.
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Salient Features
CEDAW defines discrimination as “any distinction, exclusion or
restriction made on the basis of sex, which has the effect or purpose of
impairing or nullifying the recognition, enjoyment or exercise by women,
irrespective of their marital status on a basis of equality with men, of
human rights and fundamental freedoms in the political, economic, social,
42
cultural, civil or any other field.” This definition recognizes both direct
and indirect discrimination, and includes those that have discriminatory
effects despite the lack of intention to discriminate. Indirect discrimination
may result from gender-neutral laws or policies that have failed to consider
the differing experiences of women and men, or from potential
discrimination arising from institutionalized structures that are not sensitive
to women’s needs and interests. More importantly, the concept of equality
envisioned in this definition does not mean only formal equality (de jure)
but also substantive equality (de facto) or equality of results.
Another feature of the Convention is its recognition that despite
the granting of legal rights to women in most countries, women’s rights
continue to be impaired by the persistence of social, cultural and customary
43
practices, which are based on the stereotype roles of women and their
perceived “inferiority” to men. An important contribution of CEDAW
to human rights theory is the recognition that discrimination and violations
of women’s human rights occur in both the public and private spheres,
and that states have an accountability to address and prevent both
44
violations, regardless of their source.
By accepting the Convention, states commit to the obligation to
end discrimination against women, including: (1) to incorporate the principle
of equality of men and women in their legal system, abolish all
discriminatory laws and adopt appropriate ones prohibiting discrimination
against women; (2) to establish tribunals and other public institutions to
ensure the effective protection of women against discrimination; and (3)
to ensure elimination of all acts of discrimination against women by
45
persons, organizations or enterprises.
The Work of CEDAW
As a treaty monitoring body, the CEDAW Committee plays a critical
role in monitoring the implementation of human rights treaties by states
parties. Governments that have ratified the treaty assume an obligation to
implement the provisions of the treaties, submit written reports and
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voluntarily engage in constructive dialogue with the Committee. CEDAW
utilizes various procedures in its task of monitoring states parties to the
Convention. These include reporting procedure, individual and inter-state
complaint procedures, and the communication and inquiry procedures.
The reporting procedure of CEDAW ensures that countries are
accountable in implementing the provisions of the treaties that they have
ratified at the national level. Reporting is at the core of the institutionalization
of the human rights system. Through reporting, a state’s compliance and
adherence to its human rights treaty obligations is concretized.
Reporting enables the states parties to review compliance of their
domestic laws and policies with the provisions of the Convention, as well
as to monitor the progress of reforms by evaluating the report based on
previously set goals. It promotes national accountability of states in fulfilling
their international human rights obligations. The preparation of a report is
an important process and an opportunity to consult and encourage the
46
participation of women’s groups and other sectors of civil society.
The CEDAW Optional Protocol is the “first woman-specific
47
mechanism allowing an individual to contact the UN directly.” It opens
up a channel and a mechanism to hear women’s voices and address
complaints of human rights violations against women. The Optional
Protocol contains two procedures: first, a communication procedure (or
individual complaints procedure) which allows individual women or groups
of women to submit claims of violations of rights; and second, an inquiry
procedure enabling the Committee to initiate inquiries into situations of
48
grave or systematic violations of women’s human rights.
49
The individual complaints procedure, or the Optional Protocol to
CEDAW, helps strengthen the enforcement of treaties by giving
individuals and groups of individuals the right to refer to the Committee
any violations set forth in the Convention after all domestic remedies
50
have been exhausted. The complaint must be written and signed by the
51
complainant under the jurisdiction of a state party to the Convention.
The Committee then issues its Concluding Comments highlighting a state
party’s serious violations, and recommends preferable action to be taken
by the state party. It also gives its General Recommendations, clarifies
the reporting duties of states parties regarding provisions of the
Convention, and suggests approaches for their implementation.
Considered as persuasive interpretations of these provisions, although
not binding on the state, the General Recommendations are an
indispensable reference or interpretation of the substantive meaning of
specific articles of the Convention.
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Enforceability of CEDAW at the Domestic Level
Over the last three decades, the treaty bodies have produced an
extensive body of literature and practice on human rights which have
become important sources on the interpretation of the treaties. These
are based on reports by individual states parties submitted to the United
Nations for review, discussions during the “constructive dialogue,” general
recommendations adopted by the Committees, concluding observations,
decisions of a committee adopted in a case submitted, or the results of
52
an inquiry conducted by the Committee.
The strength and effectiveness of human rights treaties depend to
a large extent on the willingness and political will of states parties to
enforce the provisions of such treaties through incorporation of their
principles in constitutional changes, enabling legislation and executive
policies, as well as judicial decisions that interpret these statutes in light
53
of the provisions of CEDAW.
The enforceability of CEDAW’s provisions at the national level also
depends on the incorporation of international law in the domestic system
of the State party. In some countries, treaties are automatically incorporated
in domestic law, while other countries, like the Philippines, require
appropriate legislation. Some countries provide that international standards
54
be considered when the constitution is interpreted in judicial decisions.
The lack of knowledge of these materials by national courts and
advocates hinders the ability of courts to utilize the outputs and jurisprudence
generated by the human rights treaty bodies. The availability of international
review of the national decision and the accessibility of international standards,
as well as the general attitude of the national courts to international law,
55
greatly affect the level of enforceability of a treaty at the domestic level.
Among the notable initiatives on constitutional reform is that taken
by Brazil, when it revoked the principle of the husband’s leadership
(chefia) of the family unit and established that the “rights and duties
relating to the conjugal unit are exercised equally by man and woman”
(Article 16 of the Women’s Convention). The Brazilian constitution now
contains provisions on gender equality, gender-based violence, State
responsibility for the prevention of domestic violence, equality of rights
56
within marriage, family planning, and equality in employment.
The Philippine Constitution, in its declaration of state policies, states
that it “recognizes the role of women in nation building and ensures the
57
fundamental equality before the law of women and men.” In Malaysia,
the constitution was amended to include gender as a prohibited ground for
Engendering the Philippine Judiciary
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discrimination and to abolish discrimination in the Distribution and
Guardianship Act. In 2004, Malaysia announced its policy of ensuring that
58
30 percent of senior decision-making positions will be given to women.
In Thailand, forcing women to change their name after marriage is
59
unconstitutional and violates the principle of equality.
CEDAW and the Legislative Reforms
Perhaps one of the most important changes brought about by
CEDAW has been in the area of legislative reforms. The active engagement
of women’s groups with the UN and their respective governments on the
need to introduce laws to address urgent women’s issues, such as violence
against women and property and land rights, as well as to amend
discriminatory laws, has led to some legislative breakthroughs.
After the Beijing Conference on Women in 1995 and the World
Conference on Human Rights in 1993, many countries introduced laws
addressing domestic violence, sexual harassment, rape, female genital
mutilation, and trafficking of women and children. General Recommendation
19 on Violence Against Women provided useful and concrete guidelines
for governments to enact laws addressing this issue. More than a hundred
countries have enabling laws creating government agencies to take charge
of gender or women’s affairs with varying powers and authority.
The Philippines’ Republic Act No. 9262, otherwise known as the
Anti-Violence Against Women and Their Children Act of 2004, and
Republic Act No. 9208, otherwise known as the Anti-Trafficking in
Persons Act of 2004, were passed in compliance with its state
obligation under Article 6 of CEDAW. As to women’s legal capacity,
the Philippines has enacted Republic Act No. 7192, or the Women in
Nation Building Law, which promotes the integration of women as full
and equal partners of men in development and nation building. It
provides for a minimum of 30 percent of all official development funds
to be allocated for development programs that would benefit rural
60
women. South Africa has repealed the Black Administration Act of
61
1927, which provided that married women had inferior status. Tunisia
repealed the requirement of the husband’s authorization for married
62
women to sign service contracts. Malawi granted women equal legal
capacity to enter into contracts and to acquire and maintain property
63
rights. The Brazilian Civil Code of 2002, on the other hand, provides
for the equality of rights and duties of the spouses and for the
application, in the absence of a prenuptial agreement, of a regime of
Engendering the Philippine Judiciary
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partial community property, with each spouse having equal rights to
administer common property and to administer his or her separate property.
CEDAW in Philippine Jurisprudence
Although it had been cited in Supreme Court decisions in the past,
CEDAW was first used as an argument in litigation only in 2004. In a class
suit filed by a group of female flight attendants of Philippine Airlines, titled
64
65
Halaguena et al. vs. Philippine Airlines, the petitioners, in a Petition for
Declaratory Relief, prayed that the provisions in the Collective Bargaining
Agreement (CBA) between the flight attendants’ union and the airline that
were discriminatory against female flight attendants be stricken down as
unconstitutional, unlawful, and violative of CEDAW. The CBA provided
that female flight attendants who were hired before November 1996 would
be compulsorily retired at age fifty-five and their male counterparts, at age
sixty.
In Halaguena et al., the counsel for the petitioners argued that the
courts, as agents of the State, have a mandatory obligation to ensure
that women are not discriminated against on account of their gender.
The government, through the courts, must strike down as unconstitutional
and contrary to CEDAW all policies, contracts, and laws that discriminate
against women “each time they rear their ugly heads.” The Regional Trial
Court granted a temporary restraining order and later, an injunction. The
airline appealed to the Court of Appeals, which ruled that the jurisdiction
over the case properly belongs to the National Labor Relations
Commission. A motion for reconsideration is pending in the Court of Appeals.
Although CEDAW was ratified by the Republic of the Philippines in
1981, or twenty-four years ago, judges have a low awareness of CEDAW.
Judge Ma. Nimfa Penaco-Sitaca first learned about it at the 3rd Biennial
Conference of the International Association of Women Judges in February
1996, when an International Conference of Women Judges was held in
Manila under the leadership of then Supreme Court Justice Flerida Ruth P.
66
Romero, president of the Philippine Women Judges Association. The
Supreme Court could take a proactive role in educating judges to use
CEDAW when domestic law is lacking, vague or incomplete, especially
67
since the Philippine Constitution accepts treaties as part of the law of the
land. Today, discriminatory provisions in the Family Code and other laws
still remain. Should judges be called upon to resolve a dispute involving a
woman’s right to autonomy, equality, or the like, they can read the provisions
Engendering the Philippine Judiciary
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of CEDAW into our domestic law and use it in their interpretation, or as
an aid to fill a lacuna legis.
There is very little material on CEDAW in our Supreme Court
decisions. After Justice Flerida Ruth P. Romero’s concurring opinion in
1995 citing CEDAW in Imelda Romualdez-Marcos vs. Commission on
Elections and Cirilo Roy Montejo (G.R. No. 119976) that a widow has a
right to fix her own domicile distinct from that of her deceased husband,
in 2000 CEDAW was cited in the footnote of the Supreme Court decision
68
in Secretary of Justice vs. Ralph Lantion et al. Earlier, in 1997, CEDAW
was cited extensively as a State obligation by the Supreme Court in Philippine
Telegraph and Telephone Company vs. National Labor Relations
69
Commission and Grace de Guzman. In that case, private respondent
Grace de Guzman was terminated by the Philippine Telegraph and
Telephone Company for having concealed the fact that she was married,
in violation of a company policy against hiring married women. The Supreme
Court, through Justice Florenz Regalado, eloquently held that:
1. Decreed in the Bible itself is the universal norm that women should
be regarded with love and respect but, through the ages, men have
responded to that injunction with indifference, on the hubristic
conceit that women constitute the inferior sex. Nowhere has that
prejudice against womankind been as pervasive as in the field of
labor, especially on the matter of equal employment opportunities
and standards. In the Philippine setting, women have traditionally
been considered as falling within the vulnerable groups or types of
workers who must be safeguarded with preventive and remedial
social legislation against discriminatory and exploitative practices
in hiring, training, benefits, promotion and retention.
The Constitution, cognizant of the disparity in rights between
men and women in almost all phases of social and political life,
provides a gamut of protective provisions. To cite a few of the
primordial ones, Section 14, Article II on the Declaration of
Principles and State Policies, expressly recognizes the role of
women in nation-building and commands the State to ensure,
at all times, the fundamental equality before the law of women
and men. Corollary thereto, Section 3 of Article XIII (the
progenitor whereof dates back to both the 1935 and 1973
Constitution) pointedly requires the State to afford full protection
to labor and to promote full employment and equality of
employment opportunities for all, including an assurance of
entitlement to tenurial security of all workers. Similarly, Section
14 of Article XIII mandates that the State shall protect working
Engendering the Philippine Judiciary
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women through provisions for opportunities that would enable
them to reach their full potential.
2. Corrective labor and social laws on gender inequality have emerged
with more frequency in the years since the Labor Code was enacted
on May 1, 1974 as Presidential Decree No. 442, largely due to our
country’s commitment as a signatory to the United Nations
Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW).
Principal among these laws are Republic Act No. 6727 which
explicitly prohibits discrimination against women with respect to
terms and conditions of employment, promotion, and training
opportunities; Republic Act No. 6955 which bans the “mail-orderbride” practice for a fee and the export of female labor to countries
that cannot guarantee protection to the rights of women workers;
Republic Act No. 7192, also known as the “Women in
Development and Nation Building Act,” which affords women equal
opportunities with men to act and to enter into contracts, and for
appointment, admission, training, graduation, and commissioning
in all military or similar schools of the Armed Forces of the
Philippines and the Philippine National Police; Republic Act No.
7322 increasing the maternity benefits granted to women in the
private sector; Republic Act No. 7877 which outlaws and punishes
sexual harassment in the workplace and in the education and training
environment; and Republic Act No. 8042, or the “Migrant Workers
and Overseas Filipinos Act of 1995,” which prescribes as a matter
of policy, inter alia, the deployment of migrant workers, with
emphasis on women, only in countries where their rights are secure.
Likewise, it would not be amiss to point out that in the Family
Code, women’s rights in the field of civil law have been greatly
enhanced and expanded.
In the Labor Code, provisions governing the rights of women
workers are found in Articles 130 to 138 thereof. Article 130
involves the right against particular kinds of night work while Article
132 ensures the right of women to be provided with facilities and
standards which the Secretary of Labor may establish to ensure
their health and safety. For purposes of labor and social legislation,
a woman working in a nightclub, cocktail lounge, massage clinic,
bar or other similar establishments shall be considered as an
employee under Article 138. Article 135, on the other hand,
recognizes a woman’s right against discrimination with respect to
terms and conditions of employment on account simply of sex.
Finally, and this brings us to the issue at hand, Article 136 explicitly
prohibits discrimination merely by reason of the marriage of a female
employee.
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In their interpretation of the Constitution and statutes, as well as in
the development of general legal concepts, courts can draw on the
international standards set by CEDAW and other human rights treaties.
Established principles of international human rights law have a “powerful
persuasive factor in interpreting municipal laws,” as Justice A.S. Anand,
chief justice of India, asserts. He also believes it “a proper part of the
judicial process and a well-established judicial function for national courts
to have regard to the international obligations undertaken by the country
in question—whether or not these have been incorporated into domestic
law—for the purpose of removing ambiguity or uncertainty from national
70
constitutions, legislation or common law.” For this to happen, judges need
to be aware of the potential of using human rights principles, such as those
in CEDAW, to amplify, enrich, and strengthen their court decisions.
The Use of CEDAW in Other Jurisdictions
In Ephorim vs Pastory (Tanzania),, Holaria Pastory challenged the
Haya customary law invoked by her nephew to prevent her from selling
clan land inherited from her father. According to Section 20 of the rules
of inheritance of Tanzania’s Declaration of Customary Law, “women
can inherit, except for clan land, which they may receive in usufruct but
may not sell.” In its decision, the court cited the fact that the Tanzanian
government had ratified CEDAW and other human rights treaties which
protected women from discrimination. The Tanzanian High Court decided
that the rules of inheritance in the Declaration of Customary Law were
unconstitutional and contravened the international conventions which
Tanzania had ratified. Thus, the rights and restrictions on the sale of clan
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land were declared the same for women and men.
In Dow vs. Attorney-General of Botswana (1992, Botswana), the
Botswana Citizenship Act of 1984, in accordance with the Tswana customary
law, declared that the nationality of a child should follow the father’s nationality
exclusively. In 1990, Unity Dow, a lawyer and activist married to an
American, challenged this Citizenship Law. Two of her children, who had
been born in Botswana after the passage of the Citizenship Act, required
residence permits to stay in Botswana and could only leave on their father’s
passport. They would not be able to vote and would be denied subsidy for
their university education. This, according to Dow, was a violation of the
equal protection assured them under the law and the constitution.
Though not yet a State Party to CEDAW, Botswana amended
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the Citizenship Act to give equal rights to men and women with respect
72
to the citizenship of Unity Dow’s children.
CEDAW’s General Recommendation 19 on Violence Against
Women has also been extensively cited in the following cases:
• Vishaka vs. State of Rajasthan, AIR 1997 SC 3015, (1998) 3 BHRC
261 (Supreme Court of India): The case arose from the gang rape
of a social worker by her own colleagues in a village in Rajasthan
and the failure of local officials to investigate. The case questioned
the State’s obligation to protect women from sexual harassment.
Although CEDAW was not directly part of the domestic law of
India, international covenants can be used by Indian courts to
interpret national laws. In this case, the court not only referred to
General Recommendation 19 on Violence Against Women, it also
drew up rules to govern sexual harassment in employment (pending
the enactment of legislation) which drew extensively on the wording
73
of the General Recommendation 19.
• R vs. Ewanchuk (1999) 1 SCR 330, 169 DLR (4th) 193 (Supreme
Court of Canada): In a case in which the court upheld an appeal
against the acquittal of a person charged with sexual assault and
substituted a conviction, Heureux-Dube’ and Gonthier JJ in a
concurring judgment referred to CEDAW’s General
74
Recommendation 19 on Violence Against Women.
• Carmichele vs. Minister of Safety and Security and Another, 2001
(10) BCLR (CC) South African Constitutional Court): In this case,
the Court cited CEDAW’s General Recommendation 19 on Violence
Against Women, particularly its reference to the obligation of the
State to take preventive, investigative, or punitive steps in relation
75
to private violations.
76
The Supreme Court of India used CEDAW in theVishaka decision
as follows:
Following the gang rape of a social worker in Rajasthan, social
activists and non-governmental organizations filed a class-action
suit for the realization of the rights of equality before the law, nondiscrimination, the practice of one’s profession, and the right to life
under India’s Constitution. In particular, the petitioners wanted to
find methods to realize gender equality, to prevent the sexual
harassment of women in the workplace, and to use the judicial
process to fill a vacuum in existing legislation. The petition was
77
filed under Article 32 of the Indian Constitution. The petitioners
also raised the issue of India’s international obligations under
CEDAW.
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In reaching a decision, the Supreme Court of India considered
constitutional rights, CEDAW, and India’s commitments at the Fourth
World Conference on Women in Beijing to formulate and put in operation
a national policy on women, to establish a Commission for Women’s
Rights, and to monitor the implementation of the Platform for Action.
The Court noted that incidents such as the gang rape of a working woman
are in violation of the rights to equality, to non-discrimination, to practice
one’s profession, and to life. In the absence of protective legislation against
the hazards to which working women might be exposed, there is an
urgent need for protection by an alternative mechanism. In the absence
of a domestic law on sexual harassment, international conventions and
norms are significant for interpreting and guaranteeing gender equality,
the right to work with human dignity (found in the rights to equality, to
non-discrimination and to practice one’s profession), and the right to life,
and the safeguards against sexual harassment implicit in those rights. The
decision of the Supreme Court of India is instructive:
Any International Convention not inconsistent with the
fundamental rights and in harmony with its spirit must be read into
these provisions to enlarge the meaning and content thereof, to
promote the object of the constitutional guarantee …
Gender equality includes protection from sexual harassment
and right to work with dignity, which is a universally recognized
basic human right. The common minimum requirement of this
right has received global acceptance.
The International Conventions and norms are, therefore, of
great significance in the formulation of the guidelines to achieve
this purpose.
The obligation of this Court under Article 32 of the Constitution
for the enforcement of these fundamental rights in the absence of
legislation must be viewed along with the role of judiciary envisaged
in the Beijing Statement of Principles of the Independence of the
Judiciary in the LAWASIA region. These principles were accepted
by the Chief Justices of Asia and the Pacific at Beijing in 1995 as
those representing the minimum standards necessary to be observed
in order to maintain the independence and effective functioning of
the judiciary. The objectives of the judiciary mentioned in the Beijing
Statement are “Objectives of the Judiciary 10 xxx”
Some provisions in the “Convention on the Elimination of All
Forms of Discrimination against Women,” of significance in the
78
present context are Articles 11 and 24. … The Government of
India has ratified the above Resolution on June 25, 1993 with
some reservations which are not material in the present context …
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It is now an accepted rule of judicial construction that regard
must be had to international conventions and norms for construing
domestic law when there is no inconsistency between them and
there is a void in the domestic law.
In view of the above, and in the absence of enacted law to
provide for the effective enforcement of the basic human right of
gender equality and guarantee against sexual harassment and
abuse, more particularly against sexual harassment at work places,
we lay down the guidelines and norms specified hereinafter for
due observance at all work places or other institutions, until a
legislation is enacted for the purpose. This is done in exercise of
the power available under Article 32 of the Constitution for
enforcement of the fundamental rights and it is further emphasized
that this would be treated as the law declared by this Court under
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Article 141 of the Constitution.
In Apparel Export Promotion Council vs. Ak Chopra, the Supreme
Court of India held that:
Any action or gesture, which directly or by implication, aims at
or has the tendency to outrage the modesty of a female employee,
must fall under the general concept of the definition of sexual
harassment.
Against the growing social menace of sexual harassment at
the workplace, a three judge bench of this court by a rather
innovative judicial law making process issued certain guidelines in
Vishaka vs. State of Rajasthan (1997) 6 SCC 241, after taking
note of the fact that the present civil and penal laws in the country
do not adequately provide for specific protection of women from
sexual harassment at places of work and that the enactment of
such a legislation would take a considerable time …
… The message of international instruments such as the
Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW) 1979 and the Beijing Declaration which
directs all states parties to take appropriate measures to prevent
discrimination of all forms against women besides taking steps to
protect the honour and dignity of women is loud and clear. The
International Covenant on Economic, Social and Cultural Rights
contains several provisions particularly important to women. Article
7 recognises her right to fair conditions of work and reflects that
women shall not be subjected to sexual harassment at the place of
work which may vitiate [the] working environment. These
international instruments cast an obligation on the Indian State to
gender sensitise its laws and the courts are under an obligation to
see that the message of the international instruments is not allowed
to be drowned. This Court has in numerous cases emphasized
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that while discussing constitutional requirements, court and counsel
must never forget the core principles embodied [sic] in the
international conventions and instruments and as far as possible
give effect to the principles contained in those international
instruments. The Courts are under an obligation to give due regard
to international conventions and norms for construing domestic
laws more so when there is no inconsistency between them and
there is a void in domestic law … In cases involving violation of
human rights, the courts must forever remain alive to the
international instruments and conventions and apply the same to
a given case when there is no inconsistency between the
international norms and the domestic law occupying the field. In
the instant case, the High Court appears to have totally ignored
the intent and content of the international conventions and norms
while dealing with the case.
The High Court of Hong Kong, in the case of Equal Opportunities
Commission vs. the Director of Education, granted declaratory relief
and found that there was institutionalized discrimination within Hong
Kong’s public education system when the Director of Education
implemented the following criteria for evaluating student aptitude:
i) girls generally needed a higher score than boys to be placed in the
same academic band;
ii) having gender quota that ensures a fixed ratio of boys to girls in
co-educational school, limiting opportunity for girls having higher
exam scores being in their school of choice
The court declared such evaluation measure discriminatory and
violative of Section 5 of the Sex Discrimination Ordinance of 1995. The
Ordinance specifically prohibits direct and indirect discrimination unlawful,
with application to children as well as adults. The Court pronounced that
it is unlawful for the Director of Education to discriminate against students
of either sex in the terms on which it offers places at co-educational
80
secondary schools.
Although aware of the limitations of its methodology, the Court, in
resolving the issue, considered domestic legal principles and was guided
by international legal principles, or principles formulated at a domestic
level in other jurisdictions. In its ruling, the High Court held that “the
words of the 1995 Ordinance are to be construed as intended to carry
out Hong Kong’s obligations under CEDAW and not to be inconsistent
with those obligations. Under CEDAW, Article 4 special measures that
a State undertakes cannot undermine the purpose of the Convention
itself, which is to abolish sex discrimination.”
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Challenges in Utilizing CEDAW in Judicial Practice
Over the years, national courts have made increasing use of the
human rights treaty bodies, as shown in a survey of sample cases
81
conducted by the International Law Association.
As Professor Shah Alam notes, “qualitative change in international
law in the last few decades seems to have made the participation of
domestic courts in the application and enforcement of international law
82
conceptually inevitable and legally essential.” He cites several reasons
for this assertion:
• First, the concept of hostis humanis generic, and the resultant
recognition of the universal jurisdiction of any duly constituted
international or domestic court for certain crimes, have made
individuals subjects of international law. Examples of these are the
Nuremberg and Tokyo International War Crimes Tribunals, the
International Criminal Tribunals for Rwanda and the former
Yugoslavia, as well as the International Criminal Court. The
Augusto Pinochet case in Chile, for instance, has relied on universal
83
jurisdiction ;
• Human rights instruments such as the International Covenant on
Civil and Political Rights, the International Covenant on Economic,
Social and Cultural Rights, the Genocide Convention, the
Convention Against Torture, the Convention on the Elimination
of All Forms of Discrimination Against Women, and the Convention
on the Rights of the Child have not only proclaimed the rights and
obligations of states parties but have also proclaimed the rights of
individuals which are to be protected by both the State Party and
the international community. As a result, individuals have become
84
active subjects of international law ;
• Human rights obligations are owed erga omnes, that is, to the
whole international community, a view that strengthened the
concept of universal jurisdiction to deal with gross human rights
85
violations ;
• Exclusive domestic jurisdiction is inadequate in cases of massive
violations of human rights like genocide, ethnic cleansing, torture,
86
etc.
Despite the fact that courts should take judicial notice of
international instruments, trial courts in the Philippines have a low awareness
of the CEDAW and do not use treaty bodies in their decisions. Our Supreme
Court rarely cites CEDAW. As a result, the development of jurisprudence
and legal theory in the field of women’s rights has been slow. The first
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recourse to the protection of human rights rests with local courts since
87
they are in a better position to assess indigenous needs and conditions.
All of the human rights treaties require that before complaints are brought
to the level of the CEDAW Committee, individuals must exhaust all
domestic remedies, a requirement that gives the state “an opportunity to
redress, by its means within the framework of its legal system, the wrongs
88
alleged to have been suffered by the individual.” However, even if treaties
have not been incorporated into domestic law, the judiciary can construe
domestic law in conformity with international obligations, customary or
89
conventional.
The courts can use international human rights norms for statutory
interpretation, “where the terms of any legislation are not clear or are
90
reasonably capable of more than one meaning.” In such cases, and in
the absence of any domestic law to the contrary, the meaning which
conforms most closely to the provisions of any international instrument
91
is to be preferred.
One area in which CEDAW can be useful to domestic courts is the
definition of discrimination. “Finding discrimination requires a court to draw
lines between justified and unjustified distinctions. … the requirements
necessary to justify distinctions based on sex ought to be very stringent;
international law indicates that distinctions based on sex are deserving of
92
the highest degree of judicial scrutiny.” Given the wealth of information
and decisions and recommendations that CEDAW has generated so far,
international law can be used in this instance not directly to determine the
outcome of a case but to set the standard for the national court’s evaluation
93
of whether a given law is discriminatory on the basis of sex.
Aside from influencing legislation and litigation, CEDAW is raising
international awareness of women’s human rights issues. General
Recommendation 19 on Violence Against Women has provided other
human rights bodies, non-governmental organizations, legal practitioners,
as well as domestic courts, with a critical understanding of violence
against women as a human rights violation and as a form of gender
discrimination. Thus, it can be said that CEDAW provides the framework
and the language of women’s human rights which women and NGOs can
utilize to try to lobby for social, economic, cultural, and political changes
that will have a positive impact on women’s lives.
In many countries, including the Philippines, women are
underrepresented in the judiciary, particularly at the level of the Supreme
Court, which has begun the gender sensitivity education of judges. Where
there is no adequate gender-sensitivity education for judges, gender bias in
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the court system may also pose a hindrance to the application of CEDAW
in domestic courts. Gender bias and sexism, as reflected in stereotype
beliefs concerning femininity and masculinity and in attitudes to female
roles, are deeply embedded in judicial culture. Such attitudes and perception
will hinder our judges’ appreciation of the objective of achieving substantive
94
equality of women through the use of CEDAW and will result in injustice
to countless women.
Emerging Issues
T he gender sensitivity of judges in the Philippines will be further tested
in the application of the Anti-Violence Against Women and Their Children
Act of 2004 (R.A. No. 9262), which provides for the remedies of
temporary and permanent protection orders, what Justice Reynato S.
Puno called in his speech during the launching of the Rule on Violence
Against Women and Their Children (A.M. No. 04-10-11 SC) as the
“principal weapon” of a victim of domestic violence. Aside from these
remedies, the woman, for herself and in behalf of her children, has the
choice of filing a criminal action for violation of R.A. No. 9262 and/or an
independent civil action for damages. R.A. No. 9262, which took effect
on March 27, 2004, widened the scope of a woman’s cause of action
because it protects her and her children from verbal, physical,
psychological, emotional, sexual, and economic abuses.
Justice Reynato S. Puno spoke of the issues that are expected to
arise in the courts as a result of R.A. No. 9262 and the various legal
actions that a woman and her children can take, and we quote:
As I stressed earlier, the filing of a petition for protective order
is just one of the remedies of the offended party. She has also the
remedy of filing a criminal case or a civil case for damages against
the offender. The availability of these three remedies raises a host
of difficult procedural problems. Among others, they involve the
conflict of jurisdiction of the regular courts and the Family Courts;
the separateness of the petition for protection order and its
independence from the criminal and civil actions; the treatment of
the application for protection orders when it is filed after the criminal
or civil action for damages has already been instituted; the different
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quantum of evidence necessary in these actions and the rule of
procedure to govern them. All these are treated in the Rules and
for lack of time cannot be discussed on this occasion.
The most urgent issue for abused women who have to flee their
homes to avoid further violence aside from a stay away order is support
for themselves and their children. What makes R.A. No. 9262 the
appropriate remedy is the availability of the immediate relief of an ex
parte temporary protection order (TPO), which includes a stay-away
order, removal of the respondent from the conjugal home regardless of
ownership, custody of minor children, and support. This ex parte TPO
shall be issued by the judge within twenty-four hours from the filing of
the petition or application. Notwithstanding the issuance of the Rule on
Anti-Violence Against Women and Their Children, lawyers for women
bewail the lack of urgency among many judges in resolving these cases
and their reluctance to issue temporary protection orders that include
sufficient support and a bond to keep the peace. The reluctance of some
judges to enforce R.A. No. 9262 is compounded by their belief that the
new law is too harsh. This reluctance is even more pronounced when the
issue is psychological and emotional violence due to marital infidelity,
and economic abuse such as depriving the woman of the equal right to
her share in the conjugal income and the use of conjugal assets. Recently,
two women have filed for protection orders in the Regional Trial Courts
(RTC) of Quezon City and Biñan because their husbands kicked them
out of their conjugal homes without any court order. Men can easily
deprive women of their share of the income from and use of conjugal or
community funds and other assets because while the administration of
the conjugal partnership of gains or community property is supposed to
be jointly held by the spouses under the Family Code, in reality, it is
often the husbands who control conjugal businesses, income, and assets.
Because there are novel issues in the implementation of R.A. No.
9262, there is an opportunity for judges to develop legal theory and
jurisprudence on this new law. Now that economic abuse is recognized
as a form of violence, the courts may someday appreciate a husband’s
failure to provide sufficient support or his act of solely controlling the
conjugal partnership assets and businesses without reporting and delivering
its income to his wife as a ground for legal separation, specifically as
“grossly abusive conduct.” This is a common problem for women who
have separated from their husbands, or those who fled their conjugal
homes due to domestic violence. By interpreting acts of violence
especially economic abuse under R.A. No. 9262 as “grossly abusive
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conduct,” the courts can provide a remedy to thousands of women who
have separated from their husbands because of domestic violence or
marital infidelity but are unable to file for legal separation because the
cause of action has prescribed.
Alarming issues are emerging in the judicial implementation of R.A.
No. 9262. Some judges lack the conviction or understanding that this
law was passed to protect women and their children and as such it cannot
be used against women. The clear intent of Congress was to provide this
special law with remedies that are available to women and their children
only, and not to men. While it is understandable that some respondents
have raised the issue of unconstitutionality of R.A. No. 9262 on the
ground that it is a class legislation that violates the equal protection clause,
what shocks women’s rights lawyers and advocates is that there are
judges who rule that the remedies of a TPO and a permanent protection
order under R.A. No. 9262 and the Rule on Violence Against Women
and Their Children may be granted in favor of a man when he sues in
behalf of his minor children who are in his custody. In the RTC of Antipolo,
a husband sued his wife in behalf of his minor children using R.A. No.
9262 and got an ex parte TPO from a female judge. As a result, it took
more than one year for the woman to see her three minor children, which
was made possible only when the judge who issued the TPO inhibited
herself and Judge Bayani Ilano took over and granted visitation rights to
the mother.
In a higly publicized case for custody, the judge of the RTC of
Bago City granted an ex parte TPO which included custody pendente
lite using A.M. No. 04-10-11 SC to a man who has a 22-month-old
illegitimate child with celebrity Marie Roxanne “Plinky” Recto. She had
earlier filed a petition for a TPO and a permanent protection order under
R.A. No. 9262 in the RTC of Mandaluyong City, but her former boyfriend
sued in his hometown in behalf of the child alleging child abuse. In another
case, the Court of Appeals in Cebu City, in an unprecedented ruling (CA
GR CEB SP No. 01698) issued a Temporary Restraining Order (TRO)
against Hon. Ray Alan T. Drilon of the RTC of Bacolod City Branch 41
and private respondents Rosalie Jaype Garcia and her three minor children
who sued under R.A. No. 9262. The TRO suspended the TPO for sixty
days, leaving the woman and her three minor children with no financial
support, vehicles, and stay away order. As soon as a TRO was issued
by the Court of Appeals in Cebu City, the corporation being controlled
by the husband got a Writ of Replevin and took the vehicle which was
being used by the woman and the children as part of their relief in the
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TPO. The conflict of jurisdiction of regular courts with the Family Courts
will arise in cases when a TPO includes an order that the woman can
have the use of vehicles regardless of ownership pursuant to R.A. 9262
but the vehicles are registered under the name of corporations and not in
the name of the spouses, even if they are in truth, conjugal assets.
Violence changes the paradigm of many provisions in the Family
Code, and it takes gender sensitivity and analyses to apply R.A. No.
9262 to ensure the safety and protection of the woman and her child
and to give the woman the opportunity to regain control over her life.
The rule on the issuance of an ex parte TPO must be understood from
the perspective of the disempowered woman, such that there is a need
to level the playing field while the case is being heard. We also submit
that when the woman and her children apply for a protection order,
visitation of the children by the father is not a matter of right.
In addition, ordering the husband to leave the conjugal dwelling
through a TPO will be one of the most heated issues in the application of
this new law, one which can be done only by putting aside the husband’s
right to the property as co-owner as inferior to the woman’s right to
protection while the hearings on the merits are ongoing. This is so since
the issue in the application for a protection order is possession of the
conjugal dwelling and not ownership. He who caused the violence in the
home must be removed from the home. This provision of law is sound in
view of the reality that many women have no gainful employment and
have nowhere else to go, so that they bear the abuse for the sake of
their children. Judges also need to appreciate the psychological effects
on the woman who is battered, threatened, or deprived of the custody
of her minor children. This perspective is necessary if judges are to be
convinced that abused women need urgent protection, support, and all
other means to enable them to regain control over their lives.
Unfortunately, some judges and lawyers still consider domestic violence
as a private matter or a mere marital spat which is, to their mind, “normal”
and can be settled if the parties talk, forgetting that under R.A. No.
9262, mediation or conciliation is prohibited. This is so because the
woman, who is not in a position of power, will be intimidated or pressured
to return to the husband or partner or withdraw her complaint.
Another new concept under R.A. No. 9262 that will meet challenges
in court is the provision on battered woman syndrome as a justifying
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circumstance notwithstanding the lack of any of the elements of selfdefense. Judges need to understand the situation and the psychological
make up of battered women and to appreciate evidence of history of
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cumulative abuse. Psychiatrists, psychologists, and counselors can give
their expert opinions, but if the judge’s mind is fixed on the rule of selfdefense, this can be an obstacle to his or her appreciation of the evidence
of history of cumulative abuse, together with expert testimony, as
sufficient cause for the woman to have believed that the threat to her life
and that of her children was imminent.
Another new law that will require gender sensitivity and a human
rights perspective of judges is Republic Act No. 9208, otherwise known
as the Anti-Trafficking in Persons Act of 2003. Judge Jesus Carbon, Jr.
of the RTC of Zamboanga City was the first to render a judgment of
conviction for trafficking under this law in 2005 in the case of People of
the Philippines vs. Ronnie Aringoy et al. One of the provisions that is
highlighted in R.A. No. 9208 is the irrelevance of the victim’s consent.
Under R.A. No. 9208, it is irrelevant whether or not the complainant
agreed to take the job or knew that she would be working abroad in
what could be a place of prostitution. No one can consent to being
trafficked into prostitution, in the same manner that no one can consent
to slavery. This concept has to be fully grasped by judges in the context
of the poverty and powerlessness of victims, who are mostly women
and children. Judge Jesus Carbon, Jr. fully understood the vulnerability of
victims when he wrote that, “consent of a trafficked person to the
intended exploitation is irrelevant and not a material fact that can be
raised in a criminal prosecution. It will not exempt or mitigate the offender’s
criminal liability” (Sec. 3(a) and Section 17, R.A. No. 9208). Traffickers
in human beings and illegal recruiters prey on the vulnerability and gullibility
of the weak and the underprivileged, “of poor laborers, seamen, domestics
and other workers who use employment abroad as the only way out of
their grinding poverty.”
Perhaps the most controversial issue in the future is the issue of
reproductive rights of women or their sexual rights, which is described
as referring “generally to a woman’s control over her sexuality and her
access to primary and secondary health care and reproductive
technologies.” It concerns the international recognition of the rights of
women over their bodies and their sexuality, applying the human rights
framework to reproductive health as an important innovation. The
Declaration and Programme of Action of the International Conference
on Population and Development states that “Reproductive health ...
implies that people are able to have a satisfying and safe sex life and that
they have the capability to reproduce and freedom to decide, if, when
and how often to do so.” Paragraph 96 of the Beijing Platform for Action
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also states that “The human rights of women include their right to have
control over and decide freely and responsibly on matters related to
their sexuality, including sexual and reproductive health, free of coercion,
96
discrimination and violence.” With a growing demand for reproductive
health rights by women’s rights organizations, this issue may come to
Congress and to the courts sooner than later.
Recommendations
Judges, as consumers of scientific knowledge, will be aided in making
just decisions in VAW cases if they use gender analysis, especially in
sexual harassment, rape, and cases falling under R.A. No. 9262, R.A.
No. 7610, and R.A. No. 9208. The continuing study of R.A. No. 9262,
R.A. No. 9208, R.A. No. 8353 (Anti-Rape Act of 1997), R.A. No.
7877 (Anti-Sexual Harassment Act of 1995), and other laws protecting
women’s human rights should be done not only by judges and lawyers
but also in law schools, while ensuring that these are taught with a gender
perspective. Furthermore, women’s rights lawyers and judges should be
encouraged to contribute to the development of jurisprudence on VAW
by putting forward legal theories and arguments using CEDAW and other
human rights treaties. Judicial decisions contribute not only to judicial
reform but also to legal reform, as we can see in the decision in People
97
vs. Ritter, which partly led to the enactment of R.A. No. 7610.
The Supreme Court may also take on a more proactive role in ridding
our jurisprudence of gender bias by reviewing past decisions on VAW
and overturning these, and finally eradicating gender stereotyping of the
roles of women and men and the myths about rape and other acts of
violence against women in our legal system. Judges and justices would
also benefit from continuing discussions on gender and the law, including
those sponsored by non-governmental organizations that are involved in
the protection of human rights.
Although there are ongoing reforms in the rules, women’s rights
advocates recommend that the Supreme Court promulgate a specific rule
on rape cases where, among others, the rape shield rule for adult and child
complainants alike will be strictly enforced by judges and post-traumatic
stress disorder will be admissible as proof of fact of trauma or rape.
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The judiciary can likewise benefit from the consistent and persistent
watch of women’s rights advocates and should be more open to critique
and reform. One critical area for reform is the appointment of judges and
justices by the President, a highly political process that could result in the
deterioration in the quality of judges. There is also a need for more women
judges so that female perspectives and women’s diverse knowledge and
experiences can contribute to the judiciary. The Supreme Court can also
add gender sensitivity to the qualifications of all judges, especially those
assigned to the Family Courts, where cases of VAW and those involving
children are heard.
To instill adherence to the highest principles of propriety, integrity,
and non-discrimination, the Supreme Court may also specify the prohibition
on gender discrimination in the Code of Judicial Conduct and for lawyers,
in the Code of Professional Responsibility. A review of the uneven
application of penalties against judges who are charged with sexual
harassment, use of foul or sexist language, and other forms of gender violence
may also lead to a reform in the disciplinary rules in the Supreme Court.
Lawyers’ organizations, for their part, can give more attention to
gender in the legal profession, aside from strengthening their free legal
aid programs for women and children who are victims of abuse. They
should also set standards on the use of gender-fair language by attorneys.
Law schools can also include gender and the law in their curricula and
ensure that the subject on family law and other subjects are taught with
a gender perspective.
Not the least of these recommendations is the education of judges
on CEDAW and its uses in judicial practice in our jurisdiction as well as
in other countries.
Conclusion
T
he human rights of women and girl-children are an inalienable,
integral, and indivisible part of universal human rights. We look upon our
courts to protect these rights. Hence, the importance of having judges
who are well-versed in human rights norms and a gender-responsive
judiciary cannot be overemphasized. The judiciary’s role in guaranteeing
full respect for the human rights of women and girl-children is
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indispensable, and our trial judges, as well as justices, could further enrich
legal theory and jurisprudence on women’s rights by using CEDAW,
DEVAW, General Recommendations 19, and other international human
rights instruments towards the goal of eliminating violence against women
and girl-children. It is because of the strategic position of trial judges in
the administration of gender justice that The Gender Justice Awards
focuses on their performance and decisions.
It is hoped that the network of human rights organizations and
women’s rights and children’s rights advocates in the Philippines will
expand and strengthen their coalition-building strategies for judicial reform.
The forthcoming Gender Justice Awards, it is hoped, will be joined by
more partner organizations, including those engaged in other human rights
advocacies. Gender, after all, is a cross-cutting issue for all. The value of
The Awards lies not only in finding outstanding judges who can enrich
the human rights discourse, but also in the ability of human rights advocates
and organizations to collaborate as well as critique the judiciary,
recommend areas for reform, and contribute to the development of legal
theory and jurisprudence on gender and the rights of women and girlchildren.
In the near future, the Supreme Court will hopefully grant expanded
standing to women’s rights and human rights organizations to sue in behalf
of victims. This will enable women’s rights lawyers and advocates to
more fully participate in the development of legal theory and
jurisprudence.
The Awards benefited from the positive environment made possible
by having a chief justice who appreciates the role of women’s rights and
human rights organizations in judicial reform. The “Davide Watch” of the
Supreme Court has started programs on gender-responsiveness, but the
fruits of Chief Justice Hilario G. Davide, Jr.’s initiatives in the area of
gender and women’s rights will be known only in the years to come. The
challenge for the succeeding chief justices is to take a closer look at their
and the Supreme Court’s past decisions on human rights of women and
children, eliminate gender discrimination in their decisions, in the courts,
and in the legal profession. It is hoped that the Supreme Court and Chief
Justice Artemio V. Panganiban as well as the succeeding chief justices
after him will also take bolder steps to improve the gender sensitivity of
judges and mainstream gender in the judiciary.
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Endnotes
1
Supreme Court Administrative Matter No. 00-4-SC, November 11, 2000.
2
Supreme Court Administrative Matter No. 04-10-11, November 15, 2004.
3
VAW cases include rape, incestuous rape, sexual harassment, acts of lasciviousness,
physical, emotional and psychological abuses in cases of legal separation and nullity of
marriage, as well as those under R.A. No. 9262, known as the Anti-Violence Against Women
and Their Children Act of 2004.
In the U.N. Declaration on the Elimination of Violence Against Women (DEVAW),
violence against women is defined as “any act of gender-based violence that results in, or
is likely to result in, physical, sexual or psychological harm or suffering to women, including
threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or
in private life.” In the first three quarters of 2005, the Philippine National Police recorded
5,416 cases of VAW, one-third of which was wife or partner battering, followed by rape which
accounted for 16.40% of the cases.
4
Myrna Feliciano et al., Gender Sensitivity in the Family Courts (Quezon City: UP
Center for Women’s Studies Foundation, Inc. and the Asia Foundation, 2005), p. 6.
5
The awarding of judges was held on August 18, 2004 in Discovery Suites, Mandaluyong
City, but the project was launched on December 8, 2003 on the same occasion as the
launching of the “Men Speak Out Against VAW” campaign with Chief Justice Hilario G.
Davide, Jr. as keynote speaker.
6
Gender justice refers to the protection and promotion of civil, political, economic, and
social rights on the basis of gender equality. It requires taking a gender perspective on the
rights themselves, as well as the assessment of access and obstacles to the employment of
these rights for both women, men, girls and boys, and adopting gender sensitive strategies for
protecting and promoting them; International Alert, Gender Justice and Accountability in
Peace Support, Closing the Gaps (http://www.internationalert.org/pdf/pubgen/
gender_justice_accountability _peace_operations.pdf., last visited on 15 October 2005).
7
Dr. Patricia Licuanan was a member of the Philippine delegation to the UNESCAP to
review and assess the Beijing Plus10 Declaration in September 2004.
8
A profile of partner organizations is in Appendix D.
9
The provincial coordinators were: Atty. Arbet Yongco of Legal Alternatives for Women,
Inc. (since deceased) for Cebu, Atty. Myrna Pagsuberon in Bohol, Ms. Isabelita Solamo in
Davao (Pilipina Legal Resource Network), Atty. Mia Cawed in Baguio, and Atty. Imelda Gidor
and Atty. Pearl Montesino in Bacolod (Gender Watch Coalition). Atty. Arbet Yongco, counsel
for the private complainants in the murder case of People vs. Ecleo, was assassinated in her
home in 2005.
10
These are lawyers representing partner government and non-governmental organizations.
A list of the members of the Review Team is in Appendix E.
11
Judge Ma. Nimfa Penaco-Sitaca is married to Dr. Nicholas T. Sitaca. They have four children.
12
The ruling in People vs. Pelayo and People vs. Sequis were not considered by the Court
in People vs. Relox.
13
This includes the Supreme Court, the Court of Appeals, the Sandiganbayan, the Court
of Tax Appeals, the Regional Trial Courts, the Metropolitan Trial Courts, the Municipal Trial
Courts and the Municipal Circuit Trial Courts.
14
Gender statistics of judges in the Judiciary as of December 31, 2004, Supreme Court,
Statistical Reports Division, 2005.
15
Supra note 4, pp. 68–69.
16
G.R. No. 122485, February 1, 1999.
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17
G.R. No. L-61152, July 29, 1988.
18
People vs. Francisquite, G.R. No. L-27980, April 11, 1974; People vs. Pacnis, G.R. No.
L-8992.
19
G.R. No. L-33446, August 18, 1972.
20
People vs. Dela Cruz, G.R. No. L-39919, October 19, 1982; People vs. Rondina, G.R.
No. L-47895, April 8, 1987; People vs. Viray, G.R. Nos. 87184-5, October 3, 1991; and
People vs. Mendigurin, G.R. No. 127128, August 15, 2003.
21
G.R. Nos. 134531-32, July 7, 2004.
22
G.R. No. 152584, July 6, 2004.
23
Supra, note 4, pp. 100–101.
24
Simbajon vs. Judge Esteban, A.M. No. MTJ-98, August 11, 1999; Dawa vs. de Asa,
A.M. No. 98-1144, July 22, 1998.
25
Vedaña vs. Judge Valencia, A.M.No. RTJ-96-1351, September 3, 1998; Veloso vs.
Caminade, A.M. No. RTJ-01-1655, July 8, 2004.
26
Biboso vs. Villanueva, A.M. No. 01-1356, April 26, 2001.
27
A.M. No. RTJ-01-1655, July 8, 2004.
28
G.R. No. 148991, January 21, 2004.
29
United States vs. Pablo Suan, 27 Phil. 12 (1914); People of the Philippines vs. Santiago
Ferolino, G.R. No. 98442, May 4, 1993; People of the Philippines vs. Eleuterio Raptus y Jeray,
G.R. No. 92169, June 19, 1991; People of the Philippines vs. Rogelio Rivera et al., G.R. No.
88298-99, March 1, 1995; People of the Philippines vs. Donato Bernaldez y Lamagan, G.R.
No. 132779, January 19, 2000.
30
Also known as An Act Providing for Stronger Deterrence and Special Protection Against
Child Abuse, Exploitation, and Discrimination, and for Other Purposes.
31
The act is now punishable as rape by sexual assault under the Anti-Rape Act of 1997
(Republic Act No. 8353).
32
As of this writing, the Department of Social Welfare and Development is developing a
draft amendment bill to Republic Act No. 7610.
33
Candida March, Ines Smyth, and Maitrayee Mukhopadhyay, A Guide to Gender Analysis
Framework (UK: Oxfam GB, 1999).
34
Ved Kumari, “Gender Analysis of Indian Penal Code,” in Amita Dhanda and Archana
Parashar, ed., Engendering Law: Essays in Honour of Lotika Sakar (Lucknow: Eastern Book
Company, 1999), pp. 139–160. http://www.hsph.harvard.edu/organizations/grht/SAsia/
forumscrimes/articles/gender.html.
35
Alda Facio Montejo, Cuando el Genero Suena Cambios Trae (Una Metodologia para
el Analisis de Genero del Fenomeno Legal), Tran., Paquitz Cruz and Jeanne Carstensen,
1999.http://www.ilanud.orer/justiciagenero/THE%20changes%20GENDER%20BRINGS.pdf.
36
Through Justice Adolfo S. Azcuna as ponente, and citing People vs. Eliarda, G.R. Nos.
148394-96, April 30, 2003.
37
Republic Act No. 8353, otherwise known as the Anti-Rape Act of 1997, does not require
“obstinate resistance” in order to prove rape. On the contrary, the Revised Penal Code, as
amended by R.A. No. 8353, Article 266-D provides that any form of resistance is sufficient to
prove lack of consent, force, or intimidation.
38
People vs. Matrimonio, G.R. No. 82223, November 13, 1992; People vs. Agbayani,
G.R. No. 122770, January 16,1998.
39
A copy of DEVAW is in Appendix B.
40
Edward A. Smith, “Reinventing International Law: Women’s Rights as Human Rights in
the International Community,” a lecture for a Human Rights Program, Harvard Law School,
March 12, 1996.
41
Convention on the Elimination of All Forms of Discrimination Against Women [herein
referred to as CEDAW], Art. 6.
Engendering the Philippine Judiciary
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42
CEDAW, Art. 1.
43
CEDAW, Art. 5.
44
CEDAW and General Recommendation No. 19 on Violence Against Women, Art. 2.
45
See http://www.un.org/womenwatch/daw/
46
Aurora Javate de Dios, “The Continuing Struggle for Women’s Human Rights and
Empowerment,” address delivered before the Women’s Studies Association of the Philippines,
Philippine Women’s University, May 31, 2005.
47
Jane Connors, “What Is an Optional Protocol?” UN Division for the Advancement of
Women, December 20, 2000.
48
Ibid.
49
The Optional Protocol to CEDAW entered into force on December 22, 2000 with 70
states ratifying and acceding to it as of June 3, 2005.
50
For more information on the work of CEDAW, see CEDAW, “Progress Achieved in the
Implementation of the Convention on the Elimination of All Forms of Discrimination Against
Women,” a report made last September 4–15, 1995.
51
This procedure has been strongly supported by women’s groups as a more effective
means of enforcement of CEDAW as it allows the Committee to directly address and act on
specific complaints of women whose rights have been violated.
52
Committee on International Human Rights Law and Practice, Interim Report on the
Impact of the Work of Human Rights Treaty Bodies on National Courts and Tribunals (New
Delhi: International Law Association, 2002), p. 3.
53
Inter-Parliamentary Union, The Convention on the Elimination of All Forms of
Discrimination Against Women and its Optional Protocol Handbook for Parliamentarians
(Switzerland: United Nations, 2003), pp. 40–46.
54
Ibid.
55
Committee on International Human Rights Law and Practice, p. 6.
56
Ibid., p. 14
57
Consti., Art. II (1987).
58
Shanthi Dairiam, “Impact of the Convention at the Domestic Level” CEDAW at 25: Are
We Moving Forward? (New York: United Nations, 2004), p. 4.
59
Ibid.
60
R.A. No. 7192, also known as Women in Development and Nation Building Act, Republic
of the Philippines, February, 1996.
61
Ibid.
62
Ibid.
63
Ibid.
64
Of the petitioners, Bernadette Cabalquinto was compulsorily retired while the case
was pending, and even after an Injuction was issued by RTC. About 560 female flight attendants
were affected by this discriminatory provision in their CBA.
65
Regional Trial Court of Makati City, Branch 147, Civil Case No. 04-886, For: Petition
for Declaratory Relief with Prayer for Injunction.
66
Wrote a concurring opinion in the 1995 case of Marcos vs. COMELEC and Cirilo Roy
Montejo (G.R. No. 119976, September 18, 1995). This is the first time CEDAW was mentioned
in a Supreme Court decision, although it is only in a separate opinion.
67
Consti., Art. II, Sec. 2 (1987).
68
G.R. No. 139465, January 18, 2000.
69
G.R. No. 118978, May 23, 1997
70
A.S. Anand, “The Domestic Application of International Human Rights Norms,” Inaugural
Address during the Seminar on Judicial Colloquium on the Domestic Application of
International Human Rights Norms, June 1, 2005.
Engendering the Philippine Judiciary
75
71
Ilana Landsberg-Lewis, Bringing Equality Home: Implementing the Convention on the
Elimination of All Forms of Discrimination Against Women (NY: UNIFEM, 1998) , p. 21.
72
CEDAW at Work, p. 46.
73
Committee on International Human Rights Law and Practice, p. 23.
74
Ibid.
75
Ibid.
76
Copy of judgment also available at www.elaw.org.
77
Article 32 of the Indian Constitution concerns, inter alia, the right to petition the
Supreme Court for the enforcement of constitutional rights and the power of the Supreme
Court to issue orders and writs to enforce constitutional rights.
78
Article 11 recognizes the right to work as an inalienable right and concerns States’
obligations to eliminate discrimination in employment and to ensure the protection of health
and safety in working environments. Article 24 concerns States’ obligations to undertake
necessary measures at a national level to fully realize the rights recognized in CEDAW.
79
Article 141 of the Indian Constitution states that a law declared by the Supreme Court
shall be binding on all courts within the territory of India.
80
Section 25, Part IV of the 1995 Ordinance makes it unlawful for the body responsible for
an educational establishment to discriminate against a woman in the terms of admittance
offered.
81
See Committee on International Human Rights Law and Practice, Interim and Final
Reports of the New Delhi Conference (2002), and Berlin Conference (2004).
82
Shah Alam, “Enforcement of International Human Rights Law by Domestic Courts,” a
speech delivered at the University of Chittagong, Bangladesh, n.d.
83
Ibid.
84
Ibid.
85
Ibid.
86
Ibid.
87
Anne F. Bayefsky, “General Approaches to the Domestic Application of Women’s
International Human Rights Law,” in R. Cook (ed.), Human Rights of Women: National and
International Perspectives (Pennsylvania: University of Pennsylvania Press, 1994), pp. 353–354.
88
Ibid, p. 354.
89
The Canadian Supreme Court ruled that the constitutional Charter of Rights and Freedoms
should generally be presumed to provide protection at least as great as that afforded by similar
provisions in international human rights documents which Canada has ratified, Ibid., p. 356,
citing Davidson vs. Slaight Communications, 59 D.L.R. (4th) 416 (1989).
90
A.S. Anand, p. 6.
91
Ibid.
92
Anne F. Bayefsky, supra note 84, pp. 356–357.
93
Ibid.
94
See “Tuning In to Women’s Voices on Justice: An Initial Review of Literature on Philippine
Publications on Women and Justice,” a study conducted by Womenlead, January 15, 2005.
95
R.A. No. 9262, also known as Anti-Violence Against Women and Their Children Act,
Section 26, March 8, 2004.
96
UN Department of Public Information, The Beijing Declaration and Platform for Action,
Fourth World Conference on Women, Para. 211 (Beijing, China: United Nations, 1995).
97
G.R. No. 88582, March 5, 1991.
Engendering the Philippine Judiciary
76
Engendering the Philippine Judiciary
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PART 2
Philippine Jurisprudence
on Violence Against Women
* The names of the complainants have been changed.
*
Engendering the Philippine Judiciary
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Engendering the Philippine Judiciary
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Rape
MANNER
OF
C ROSS-EXAMINING
THE
RAPE VICTIM
P EOPLE VS . B ELANDRES
G.R. NO. L-2801, MARCH 31, 1950
J. TORRES
FACTS: One late night, Belandres and Manacop ordered Yoly and her family
to get out of their house. Recognizing that Belandres and Manacop were
municipal policemen, both with firearms, they did as they were ordered.
Belandres immediately went up the house. In the meantime,
Manacop pulled Yoly to a mango tree, took off her drawers and raped
her, threatening her with bodily harm if she refused to abide by his wishes.
Yoly was able to run away when Belandres started to approach them.
After Belandres and Manacop left, Yoly’s parents found that all their
things were scattered inside the house and that their money was missing.
It was already daybreak when Yoly returned and told them that Manacop
raped her. It took several days before Yoly’s family reported the incident
to the authorities.
Belandres and Manacop were charged with robbery with rape.
The trial court convicted them and ordered Manacop to recognize any
offspring resulting from the rape.
On appeal, the Court of Appeals appreciated the two aggravating
circumstances of nighttime and taking advantage of a public position.
Finding no mitigating circumstance, the appellate court sentenced both
accused to life imprisonment.
DECISION: The Supreme Court affirmed the conviction. It held that the
testimony of Yoly, clear and free from contradictions and corroborated
by her father’s testimony, is sufficient to convict the accused. The Supreme
Court explained that it took the victims some time to report the incident
to the police because they were in a state of fear. They were terrorized
into silence by the very people whom they should be counting on for
help. Further, the Supreme Court ruled that a prosecution for rape may
prosper despite the absence of a medical examination.
The Supreme Court found occasion to comment on the “merciless
manner in which the cross-examination of [Yoly] was conducted, when
Engendering the Philippine Judiciary
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she was quizzed about the details of the criminal assault upon her subsequent
reaction, as if she were expected to live over again her terrible experience.”
According to the Supreme Court, the manner in which accused’s counsel
cross-examined Yoly “has the effect of adding insult to injury.” While it is
true that it is the right of the accused, through counsel, to subject the
prosecution witness to rigid questioning in order to bring forth the truth,
the exercise of this right has limitations. The Supreme Court explained that
Yoly, in her distress and abject misery after having been raped, cannot be
reasonably expected to “think of finding out whether she had blood stains
on her clothes or any substance in her body.”
GENDER
INSENSITIVE REMARKS DURING CROSS-EXAMINATION
P EOPLE VS . N UGUID
G.R. NO. 148991, JANUARY 21, 2004
J. CARPIO
FACTS: Elena was in a room inside their house with her two children
when she heard Nuguid knock on the door of their room. Nuguid told
Elena that her husband told him to ask her for money to buy liquor. At
first, Elena did not believe him, but she later relented and opened the
door. Nuguid then immediately grabbed Elena, poked a knife at her neck,
and dragged her to a room. He ordered Elena to undress while pointing a
knife at her. Fearing for her life, Elena followed Nuguid’s order. Nuguid
succeeded in forcing Elena into sexual intercourse.
Nuguid was thereafter charged with serious illegal detention with
rape. In defense, Nuguid claimed that he previously had sexual intercourse
with Elena and that they have an illicit relationship. Nuguid also claimed
that he cannot be convicted of serious illegal detention with rape because
the prosecution failed to prove that his motive was to rape Elena. The
trial court convicted Nuguid as charged.
DECISION: The Supreme Court, on appeal, convicted Nuguid of the crime
of rape instead of serious illegal detention with rape, as there is no such
complex crime. If the objective of the offender is to rape the victim, and
in the process, the victim had to be illegally detained, the crime of illegal
detention is absorbed in the crime of rape. The Supreme Court noted
that the purpose of Nuguid was not to detain Elena but to have sexual
intercourse with her. The detention was merely incidental to the objective
of the appellant.
Engendering the Philippine Judiciary
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The Supreme Court did not accept Nuguid’s sweetheart defense,
which was inherently weak and uncorroborated by evidence. His claim
was contradicted by the straightforward, convincing and believable
testimony of Elena.
The Supreme Court, in this case, did not let the judge’s disparaging
remarks as well as the prosecutor’s and the defense counsel’s reactions
during trial pass without comment. It did not excuse the remarks of Judge
Laguio, requesting Elena to demonstrate in open court her position when
she was raped. The Supreme Court reminded all concerned that more
circumspect conduct is expected from a judge of our courts. Judge Laguio
should adhere more closely to the rule that “a judge should so behave at
all times as to promote public confidence in the integrity and impartiality
of the judiciary.”
Further, the Supreme Court commented on the counsel’s examination
of Elena, to wit:
A rape victim is physically, socially, psychologically and
emotionally scarred, resulting in trauma which may last a lifetime.
It was thus highly inconsiderate for the prosecutor and the defense
counsel to trade quips at the precise time Elena was reliving her
harrowing experience. Courts are looked up to by people with
high respect and are regarded as places where litigants are heard,
rights and conflicts settled and justice solemnly dispensed. Levity
has no place in the courtroom during the examination of a victim of
rape, and particularly not at her expense.
P ENETRATION
I S N O T ESSENTIAL IN RAPE
P EOPLE VS . O RITA
G.R. NO. 88724, APRIL 3, 1990
J. MEDIALDEA
FACTS: Early one morning, Ely, 19 years old, arrived at her boarding
house from a party. As she entered the boarding house, Orita, a Philippine
Constabulary soldier, poked a knife on her neck and ordered her to enter
one of the rooms with him. Inside the room, Orita forced her to the floor
and mounted her. Since Orita could not fully penetrate Ely who kept
moving, he lay on his back. Ely took the chance to escape while Orita
was lying down. Orita chased her, but she managed to elude him until she
was able to reach the municipal building where some police officers saw
her naked.
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Orita was charged with rape. The trial court convicted him of
frustrated rape. On appeal, the Court of Appeals modified the ruling of
the lower court and convicted Orita of consummated rape.
DECISION: The Supreme Court agreed with the Court of Appeals and
convicted Orita of consummated rape. It held that there is no crime of
frustrated rape. It clarified that its previous ruling in People vs. Erinia (50
Phil. 998 [1927]), convicting an accused of frustrated rape, was a stray
decision.
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
have been accomplished. 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 (People vs. Oscar, 48 Phil. 527; People vs. Hernandez,
49 Phil. 980; People vs. Royeras, G.R. No. L-31886, April 29,
1974, 56 SCRA 666; People vs. Amores, G.R. No. L-32996,
August 21, 1974, 58 SCRA 505), 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. Necessarily, rape is attempted if there is no
penetration of the female organ (People vs. Tayaba, 62 Phil. 559;
People v. Rabadan, et al., 53 Phil. 694; United States vs. Garcia,
9 Phil. 434) 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.
In this case, Ely testified that there was a slight penetration of her
vagina when Orita mounted her. This fact having been established, the
Supreme Court reiterated the rule that in the prosecution of rape, the
accused may be convicted even on the sole basis of the victim’s testimony,
if credible, as in Ely’s case. The statement of the physician was merely
corroborative and not an indispensable element in the prosecution of
rape.
Engendering the Philippine Judiciary
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P HYSICAL
RESISTANCE I S NOT REQUIRED IN RAPE
P EOPLE VS . O BQUIA
G.R. NO. 143716, APRIL 5, 2002
J. MENDOZA
FACTS: Theresa, a sales girl, and Obquia worked in the same store. One
night, while Theresa was taking out the garbage from the store, Obquia
dragged her under a bridge. Obquia poked a knife at Theresa and forced
her into sexual intercourse.
Obquia was charged with rape. In defense, he explained that Theresa
was his girlfriend and that she consented to having sexual relationship
with him.
DECISION: The Supreme Court, on appeal, affirmed the conviction. In
order to prove rape, it is not necessary that the force or intimidation
employed be so great or that it must be of such character as to be
irresistible. It is only necessary that the force or intimidation applied
enabled the assailant to consummate the crime. Physical resistance need
not be established in rape when intimidation is exercised by the assailant
over the victim, and the latter submits herself to the rapist’s will because
of fear for her life. The commission of rape with intimidation and force
was sufficiently established in this case.
There is no evidence to prove Obquia’s sweetheart theory. There
were no letters or photographs to prove the alleged relationship. It is very
unlikely that a woman would fabricate a rape charge and suffer shame and
trauma unless she is motivated by a strong desire to seek justice.
See People vs. Malabago, G.R. No. 108613, April 18, 1997
L ACK
OF RESISTANCE IS NOT CONSENT
P EOPLE VS . S OBERANO
G.R. NO. 108123, MAY 29, 1995
J. FELICIANO
FACTS: Soberano was Elen’s neighbor. Upon entering her apartment, where
she lived alone, Elen was surprised to see Soberano behind her. Soberano
pulled Elen to the sofa. Elen resisted but Soberano overpowered her.
Soberano kicked Elen in the abdomen and punched her on both thighs.
He threatened Elen that he wouild kill her if she screams. Soberano inserted
Engendering the Philippine Judiciary
84
his penis into Elen’s organ. He threatened her not to tell anyone about
what happened or else, he would kill her and her family.
Soberano was charged with rape but offered the defense of alibi.
He also claimed that, assuming he had carnal knowledge of Elen, he did
not employ force or intimidation. He further alleged that Elen failed to
resist his advances. The trial court convicted Soberano of rape.
DECISION: The Supreme Court affirmed the conviction. Lack of resistance,
even if true, does not show that the victim voluntarily agreed to the
sexual intercourse. The lack of consent and resistance on the part of the
victim need not be carried to the point of sustaining death or physical
injuries at the hands of the rapist. All that is necessary is that the force or
intimidation applied against her should have enabled the assailant to effect
sexual penetration.
R ESISTANCE / OPPOSITION
NEED NOT BE PROVEN IF VICTIM WAS RAPED
WHILE UNCONSCIOUS
P EOPLE VS . S ANTIAGO
G.R. NO. L-46132, MAY 28, 1991
J. MEDIALDEA
FACTS: One evening, Kris met Santiago,, her officemate, at a restaurant.
When she arrived, Santiago had already ordered a glass of lemon juice
and a sandwich. Kris said she was not hungry but drank the lemon juice
anyway. At the restaurant, Santiago professed his love for her. This
surprised Kris because Santiago was already married. Already feeling
dizzy, Kris left the restaurant and was about to take a tricycle when
Santiago caught up with her and, with a gun, threatened her not to make
any scandal. They then went to a hotel. Inside the room, Kris pleaded
him not to pursue his evil intentions. Santiago boxed her in the stomach
and she became unconscious.
When Kris woke up, she found herself totally naked, her vagina
bleeding and her thighs painful. Santiago warned her not to tell anyone
what happened. The following day, they both went to work, as if nothing
happened. A few days later, during a company party, Santiago even
danced with Kris. While dancing, he threatened her again not to tell anyone
of the incident. Kris, unable to bear such suffering, told her family about
the rape incident. Santiago was then charged with and convicted of rape.
Engendering the Philippine Judiciary
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DECISION: The Supreme Court affirmed the conviction. Kris’ suggestion
that she was drugged after drinking the lemon juice Santiago gave her
explains why she was unable to resist the latter effectively or make an
outcry. This fact was uncontroverted even though no chemical test was
undertaken to concretely prove that the juice she drank actually contained
drugs. Further, when Santiago succeeded in bringing her to the hotel, he
boxed her in the stomach which rendered her unconscious and allowed
him to satisfy his beastly desires. It is clear that Santiago’s acts were
deliberately done to deprive Kris of reason and the will to resist his
sexual assault. The effect is similar to that of violence in overcoming
resistance through which she could have very well thwarted the lustful
act. Santiago undoubtedly committed the crime charged by depriving
Kris of reason to be able to have carnal knowledge of her without the
latter showing any sign of consent. In a rape of the woman deprived of
reason or who is unconscious, the victim has no will. In that case, it is not
necessary that she should offer real opposition or constant resistance to
the sexual intercourse.
D EPRIVATION
OF REASON NEED NOT BE COMPLETE IN RAPE ;
A WOMAN
(DISSENTING OPINION OF
G. D A V I D E , J R . A N D A S S O C I A T E
HALF ASLEEP CANNOT GIVE FULL CONSENT
THEN ASSOCIATE JUSTICE HILARIO
JUSTICE FLORENZ REGALADO)
P EOPLE VS . S ALARZA , J R .
G.R. NO. 117682, AUGUST 18, 1997
J. BELLOSSILLO
FACTS: Ari, 30 years old, was a British television and stage actress. One
night, during a vacation with her boyfriend and his friends on the beach,
she went to her cottage to sleep. At around 2:00 A.M., she felt someone
take off her underwear. The room was dark and as she was half-asleep,
she did not stop the man from taking off her panties because she thought
he was Enrico, her boyfriend. The man removed his briefs, placed himself
on top of her, spread her legs, penetrated her and executed push-andpull movements. Later, the man whispered “[Ari], it’s not Ricky; it’s Jun,
I love you.” It was only then that she realized that the man was not her
boyfriend Enrico but Silvino, Enrico’s friend. She then pushed Silvino aside,
cried and became hysterical.
Silvino was charged with rape. Silvino, however, denied the same
and claimed that Ari had been flirting with him and was even the one who
asked him to make love to her. Silvino averred that he hesitated, thinking
Engendering the Philippine Judiciary
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of Enrico, but Ari allegedly got mad. Enrico and his friends later ganged
up on him and reported him to the police.
The trial court convicted Silvino of rape. The trial court found it
unbelievable for Ari to fall for Silvino who was smaller, and not as
generously endowed as Enrico.
DECISION: The Supreme Court acquitted Silvino. It held that the element
of force or intimidation was absent. Silvino’s sexual advances were done
with Ari’s consent though she claimed she thought Silvino was her
boyfriend. The Supreme Court noted that Silvino did nothing to mislead
Ari to think that he was Enrico. He even told her that he was not Enrico.
The Supreme Court blamed Ari for her mistake and her inexcusable
imprudence. Ari was not deprived of reason or otherwise unconscious
when Silvino had intercourse with her. She was then half-asleep, and not
fast asleep. She testified that she woke up to find someone removing her
underwear. She knew (hence, she was conscious) when her panties were
removed, when her legs were parted, when the man pulled down his
pants in preparation for copulation and when the man mounted her.
J. D AVIDE , J R .; J. R EGALADO ,
DISSENTING
Chief Justice Davide, Jr., then an Associate Justice, and Justice
Regalado dissented with the majority and opined that Silvino should be
convicted of rape. Chief Justice Davide, Jr. explained:
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 (AQUINO, op. cit., 393). Deprivation of reason need not
be complete, as mere mental abnormality or deficiency is enough
(Id., 393–394). 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.
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.
Engendering the Philippine Judiciary
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In our jurisprudence, carnal knowledge of a sleeping woman
is rape (People vs. Dayo, 51 Phil. 102 [1927]; People vs. Corcino,
53 Phil. 234 [1929]; People v. Caballero, 61 Phil. 900 [1935]
and People 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 (People vs. Conde, supra,
at 767), obviously deprives a woman of the ability to consent.
However, to repeat, since it is “absence or lack of will” which is the
primordial factor in the second circumstance of rape, then I submit
that to construe the term “unconsciousness” exclusively in light of
physical considerations would be unduly restrictive and fail to heed
the gravamen of the offense, i.e., lack of consent.
Deprivation of reason need not be complete. Mere mental abnormality
or deficiency is enough. Justice Davide, Jr. submits that since both “being
deprived of reason” and “unconsciousness” are founded on absence of will
to give consent intelligently and freely, the term “unconsciousness” should
not be tested by mere physical standard, i.e., whether one is awake or
asleep, conscious or alert. 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.
Plainly, despite Ari’s awareness of what was being done to her,
the question of who was doing it to her was a totally different matter.
Her accession to the act was premised on the belief, in good faith, that it
was her boyfriend who lay with her in bed. Her failure to ascertain the
identity of her partner was a mistake in good faith for which she should
not be faulted. Neither should it result in Silvino’s acquittal. It is only
when a woman is fully informed that consent may be intelligently given—
which was absent in the instant case.
P HYSICAL
RESISTANCE NEED NOT BE PROVEN WHEN RAPE VICTIM WAS
DRUGGED
P EOPLE VS . S HAREFF A LI E L A KHTAR
G.R. NO. 130640, JUNE 21, 1999
EN BANC, J. QUISUMBING
FACTS: Karen, 17-years old, was on vacation at her aunt’s home in Bulacan.
Ali, a Libyan married to a Filipina nurse, was a former neighbor of Karen’s
aunt. One morning, Ali grabbed Karen’s hand and forced her to ride a
tricycle with him. He brought her to a house and locked her inside a room.
Engendering the Philippine Judiciary
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He forced her to drink a glass of soda which made her drowsy. She fell
asleep. When she woke up, she was in bed completely naked. Her vagina
was painful and there was plenty of blood in the bed sheet. She pleaded
with Ali to let her out, but she remained locked up. Several times, she
was fed not only with food, but drinks that made her feel drowsy.
Whenever she woke up, she felt pain in her vagina.
Karen’s aunt and her husband suspected that Ali had something to
do with Karen’s disappearance. They went to his house but he denied
any knowledge of Karen’s whereabouts. Ten days after Karen
disappeared, policemen came to Ali’s house. Ali forced Karen to copy
several love letters and after finding that no one else was outside his
house, he released her. Karen filed a complaint for forcible abduction
with rape against Ali. The trial court convicted him as charged.
DECISION: The Supreme Court affirmed the conviction. Karen’s failure
to ask for help or to escape from Ali’s house should not be construed as
consent since her life was on the line. Against the armed threats and
physical abuses of Ali, she had no defense. Moreover, at a time of grave
peril, to shout could literally be to court disaster. Her silence was borne
out of fear for her safety, to say the least, and was not a sign of approval.
There is no standard form of behavior when one is confronted
by a shocking incident. The workings of the human mind when
placed under emotional stress are unpredictable. x x x Thus,
physical resistance is not the sole test to determine whether or not
a woman involuntary succumbed to the lust of an accused,
particularly where accused employed drugs in order to render the
woman unconscious during coitus.
The Supreme Court cited the case of People vs. Santiago (1991),
wherein it ruled that in a rape of a woman deprived of reason or who is
unconscious, it is not necessary that she should offer real opposition or
constant resistance to the sexual intercourse.
F ORCE
NEED NOT BE IRRESISTIBLE
P EOPLE VS . D E G UZMAN
G.R. NO. 117217, DECEMBER 2, 1996
J. DAVIDE, JR.
FACTS: Fery, a 32-year-old wife and mother of two children, was waiting
for a tricycle one night. She approached a nearby well-lit guardhouse where
Engendering the Philippine Judiciary
89
De Guzman was waiting. De Guzman offered Fery a ride on his tricycle,
which she accepted. After several stops, which according to De Guzman
were caused by the tricycle’s bad condition, they reached Phase II of
the subdivision. De Guzman stopped near an unfinished house and told
Fery to push the tricycle. Fery walked away but De Guzman embraced
her from behind, covered her mouth and held her neck tightly. She fought
to free herself from his hold, but De Guzman pushed and slapped her.
Fery became too weak to struggle. De Guzman was soon able to insert
his penis into Fery’s vagina.
Despite De Guzman’s threats, Fery’s husband reported the incident
to the authorities. Later, De Guzman’s parents, through a friend, begged
for Fery’s forgiveness on behalf of De Guzman.
De Guzman was charged with rape. He countered that: (1) he did
not employ force or intimidation; (2) Fery did not positively identify him;
and (3) he was not drunk on the night of the alleged rape. The trial court,
however, convicted him.
DECISION: The Supreme Court affirmed the conviction. A meticulous
assessment of Fery’s testimony demonstrates beyond doubt the truthfulness
of her story, which she narrated in a categorical, straightforward and candid
manner. Fery’s conduct immediately after the sexual assault further
strengthened her credibility in recounting her ordeal. She reported the
incident immediately after it had happened. Moreover, she rejected the
plea for forgiveness sought by the parents, wife, and children of De Guzman.
She suffered the travails of a public trial, including a grueling crossexamination, which necessarily exposed her to humiliation and
embarrassment by unraveling the details of the rape. What Fery endured
could only come from one whose obsession was to bring to justice the
person who abused her and to vindicate her honor.
Another established rule in rape cases is that the force need not be
irresistible; all that is necessary is that the force used by the accused is
sufficient to consummate his evil purpose, or that it was successfully
used. It need not be so great or of such character that it could not be
repelled. Intimidation, on the other hand, must be viewed in light of the
victim’s perception and judgment at the time of the commission of the
crime and not by any hard and fast rule. It is enough that it produces
fear—fear that if the victim does not yield to the bestial demands of the
accused, something would happen to her at that moment or even
thereafter, as when she is threatened with death if she would report the
incident.
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In this case, De Guzman embraced Fery from behind, held her neck
tightly, and covered her mouth. As she struggled to free herself, she
sustained injuries. The doctor who examined Fery confirmed the use of
force and the presence of abrasions and contusions on Fery’s body due
to force applied on her. Moreover, De Guzman also threatened Fery
with death if she would not yield to his bestial desires. The threat certainly
constituted intimidation.
M EDICAL
CERTIFICATE THAT VICTIM WAS DRUGGED I S NOT REQUIRED
T O PROVE RAPE
P EOPLE VS . N UBLA
G.R. NO. 137164, JUNE 19, 2001
J. VITUG
FACTS: Leni, a 19-year-old student, met Nubla through a family friend.
One day, Leni and Nubla met up in a bar where Leni ordered a glass of
iced tea. After drinking one-third of the tea, Leni felt dizzy. She then
asked Nubla to bring her home. Nubla asked Leni to finish the whole
glass of iced tea and she did. Soon, she felt very dizzy and was about to
pass out. The two took a taxicab and went to Sta. Mesa, with Leni
thinking that she was being brought to the house of her friend as she lost
consciousness. When Nubla woke her up the next morning, she was
surprised to see that she was naked beside him. She felt pain in her
buttocks and private parts. She also had plenty of kiss marks on her
breasts and lap.
Nubla was charged with rape. He defended that Leni initiated the
sexual intercourse; hence, it was consensual. The trial court convicted
Nubla of rape.
DECISION: The Supreme Court affirmed the conviction. It is settled that in
rape cases, a complainant’s testimony should be regarded with utmost
caution and the party charged with the offense deserves the benefit of
doubt unless the victim’s testimony is truly convincing. In this case, Leni
could not testify on how the actual coitus took place at the apartelle. Her
recollection of the surrounding events that evening before the rape was all
she could clearly narrate. This, however, was not because she merely
fabricated her complaint but because she was unconscious at the time of
rape. The series of events, based on Leni’s testimony, indicate Nubla’s plan
to take sexual advantage of his victim. The absence of medical or chemical
evidence that Leni was drugged did not mean that she was not drugged.
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Leni, not suspecting that she was drugged, did not subject herself to a medical
examination.
T HERE
IS NO STANDARD REACTION FOR RAPE
P EOPLE VS . L OR
G.R. NO. 133190, JULY 19, 2001
J. YNARES-SANTIAGO
FACTS: Bunny usually passes through a shortcut along a cacao and banana
plantation on her way home from school. One day, Lor, the husband of
Bunny’s aunt, grabbed and raped Bunny while she was passing through
the said route. Days after, as Bunny went through the same shortcut,
Lor again forcibly had sex with her. The Regional Trial Court convicted
Lor of rape. On automatic appeal, Lor argued that he could not be
convicted of rape since Bunny did not offer any resistance or vocal
protestation against the alleged sexual assault.
DECISION: Lor is liable for rape. Bunny is a 13-year-old girl whose inaction
cannot properly be interpreted as consent. Also, since Bunny recognized
Lor as his uncle, the latter’s physical and moral ascendancy over Bunny
are enough to cow her into submission to his sexual desires. Importantly,
different people react differently to a given type of situation, and there
is no standard form of human behavioral response when one is confronted
with a strange, startling or frightful experience. One person’s spontaneous,
unthinking, or even instinctive response to a horrid and repulsive stimulus
may be aggression, while another person’s reaction may be cold
indifference. It is not proper to judge the actions of children who have
undergone traumatic experience by the norms of behavior expected under
the circumstances from mature people. The range of emotion shown by
rape victims is yet to be captured even by calculus. Thus, it is unrealistic
to expect a uniform reaction from rape victims.
See People vs. Shareff Ali El Akhtar, G.R. No. 130640, June 21, 1999.
Engendering the Philippine Judiciary
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P OST - TRAUMATIC
STRESS DISORDER A S PROOF OF RAPE
P EOPLE VS . C ABRAL
G.R. NO. 131909, FEBRUARY 18, 1999
J. ROMERO
FACTS: One evening, Beth rode Odiamar’s jeepney for a joy ride. Beth
willingly went as the vehicle proceeded with Odiamar to a beach resort.
There, Odiamar joined some companions who invited Beth to drink gin
and inhale marijuana. Beth indulged the group until she was so weak that
she could not offer any resistance. Odiamar raped Beth at this point.
Odiamar was charged with rape. Odiamar applied for bail which
Judge Cabral granted on the ground that the evidence of guilt was not
strong. Judge Cabral reasoned that since Beth voluntarily joined Odiamar,
it is possible that Beth consented to the sexual intercourse. No evidence
was presented to show that Beth suffered injury. No part of Beth’s pants
or blouse was torn. Neither was there any evidence showing that Odiamar
had an overpowering and overbearing moral influence over Beth.
The Solicitor General opposed the trial court’s order granting bail,
alleging that: (1) Beth had no ill-motive to impute a heinous crime against
Odiamar; (2) the psychiatrist who examined Beth testified that she
manifested abnormal psychological manifestations traceable to the rape
incident; and (3) Odiamar’s offer of compromise was an implied admission
of guilt. The Court of Appeals, however, agreed with the trial court that
evidence of guilt was not strong.
DECISION: The Supreme Court overturned the decision of the Court of
Appeals and denied bail. The expert testimony of the psychiatrist that
Beth 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” and Odiamar’s
offer of compromise shows “evident guilt.”
Moreover, the Supreme Court noted Beth’s testimony that Odiamar
and his friends forced her to drink gin by holding her hair and forcing the
glass on her mouth, and that his companions blew intoxicating smoke on
her face. The Supreme Court explained that “(t)he requirement of force
and intimidation in the crime of rape is relative and must be viewed in light
of the victim’s perspective and the offender’s physical condition (People
vs. Plaza, 242 SCRA 724 [1995]) …” In this case, Beth was only 15
years old at the time of the rape incident. At her age, it is reasonable to assume
that a shot of gin would have rendered her tipsy. One does not need an expert
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witness to testify on what is common knowledge—that four shots of gin
have a “weakening and dizzying” effect on the drinker, especially one as
young as Beth. The resulting weakness and dizziness which deprived her
of reason, will and freedom must be viewed in the light of her perception
and judgment at the time of the commission of the crime, and not by any
hard and fast rule because in “rape cases, submission does not necessarily
imply volition” (Querido, 229 SCRA 745 [1994]). The absence of injury
on Beth’s part, also, does not automatically negate the commission of
rape. Furthermore, that Beth agreed to accompany Odiamar for a joy
ride does not mean that she also agreed to the bestial acts later committed
against her person.
V ICTIM ’ S
INSANITY DOES NOT AUTOMATICALLY RENDER HER TESTIMONY
INCREDIBLE
P EOPLE VS . D EAUNA
G.R. NO. 143200-01, AUGUST 1, 2002
J. PANGANIBAN
FACTS: Deauna raped his 19-year-old daughter, Belen, while he was in
bed with her and his other his other child. After several months, he raped
Belen again.
Deauna was charged with rape. During trial, the defense asserted
that the evidence was insufficient not only because Belen’s testimony
was uncorroborated but also because she was insane. A few months
after Belen testified as prosecution witness, she took the stand as defense
witness and testified on her affidavit of desistance. On appeal, Belen
also submitted to the Supreme Court several letters/manifestation including
an affidavit of desistance, admitting, among others, that “she had been
insane when she testified.”
Deauna claimed that Belen filed the complaint only because she
had a grudge against him. Such grudge was allegedly foregone when Belen
visited Deauna many times while he was in detention. Belen gave him a
Christmas gift, asked for money and even kissed him. Lastly, Deauna
averred that Belen does not have vaginal lacerations, negating the
existence of rape.
DECISION: Despite Belen’s recantation, the Supreme Court convicted
Deauna of rape. The Supreme Court was not swayed by Belen’s retraction
as recantations are usually unreliable. There is always the probability that
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the recantation itself will be repudiated. Monetary consideration or
intimidation may motivate a witness to recant and distort the truth.
That Belen admitted her insanity in her affidavit of desistance does
not render her testimony about the rape incident incredible, especially
since her state of mind was normal when she testified for the prosecution.
It appeared that if at all, she only suffered from psychosis or insanity a
few weeks before she testified on her affidavit of desistance. The Supreme
Court further held that assuming arguendo that she was already insane
when she testified, “this fact alone will not render her statements incredible
or inadmissible.”
The Supreme Court likewise dismissed Deauna’s claim that the rape
charge was only due to Belen’s grudge against him. The Supreme Court
found it hard to believe that Belen would concoct a rape story simply to
retaliate for the physical maltreatment she suffered. Parental punishment
is not sufficient reason for a daughter to falsely charge her father with
rape. Belen will not publicly cry rape, particularly against her father, if
such was not the truth or if justice was not her sole objective.
As regards the alleged absence of vaginal lacerations, the Supreme
Court held that the same is of no moment as the presence of vaginal
lacerations is not an essential element of the crime of rape.
A
MENTAL RETARDATE MAY BE A COMPETENT WITNESS
P EOPLE VS . A LMACIN
G.R. NO. 113253, FEBRUARY 19, 1999
J. PARDO
FACTS: Yen, a 19-year-old retardate, lived with her sister. One afternoon,
Almacin went to their house while her sister was no there. Yen refused
him entry but Almacin forced his way inside. Thereafter, he invited Yen
to a room where he undressed and raped her. While he was on top of
Yen, Almacin threatened Yen not to report the incident to anyone,
otherwise, he would kill her. The following day, Yen’s sister noticed that
Yen’s breasts were mashed and there was blood on her skirt. Later, Yen
confessed that Almacin raped her.
Almacin was charged with and convicted of rape. The defense,
however, maintained that Yen’s testimony should not have been
considered as she was a retardate; hence, incompetent to testify.
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DECISION: The Supreme Court affirmed the conviction. Mental retardation
does not automatically disqualify the victim from being a witness. As
long as the witness is capable of perceiving and makes known her
perception to others, she is qualified and competent to be a witness.
During Yen’s testimony, she adequately showed that she could convey
her ideas by words and could give sufficiently intelligent answers to the
questions propounded by the court and her counsel.
The trial court upheld Yen’s credibility as witness. Findings of the
trial court regarding credibility of witnesses are to be given great weight
and high degree of respect by the appellate court. The trial judge, having
personally heard and observed her deportment and manner of testifying
during trial, is in the best position to assess the credibility of the
complainant.
See People vs. Vaynaco et al., G.R. No. 126286, March 22, 1999; People vs. Padilla,
G.R. No. 126124, January 20, 1999; People vs. Matamorosa, G.R. No. 104996-998,
March 28, 1994.
“W HEN
EFFECT ,
A WOMAN TESTIFIES THAT SHE HAS BEEN RAPED , SHE SAYS , IN
ALL THAT I S NECESSARY TO CONSTITUTE THE COMMISSION OF
THIS CRIME”
U NITED S TATES VS . R AMOS
G.R. NO. L-126, DECEMBER 26, 1901
J. WILLARD
FACTS: Ramos and Torre were accused of raping Jena. The trial court
convicted them of the crime of rape. Both accused appealed. Ramos
denied the allegations against him. Torre also denied the charge. He
explained that he did not rape Jena. Neither was he aware of Ramos’
intention to rape Jena.
DECISION: The Supreme Court convicted Ramos but acquitted Torre. It
held that “[w]hen a woman testifies that she has been raped she says, in
effect, all that is necessary to constitute the commission of this crime …
It is merely a question then [of] whether or not this court accepts her
statement.” The Supreme Court was convinced that Jena spoke the truth
and Ramos was guilty of the crime charged.
As for Torre, the Supreme Court concluded that he did not rape
the woman. He ran away when there were other people who came to the
scene. And while it was proven that he arrived at the house with Ramos,
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there was no proof that he had knowledge of Ramos’ criminal intention
or that he knowingly aided the latter in the commission of the crime.
S WEETHEART
DEFENSE IN RAPE ;
R APE
MAY BE COMMITTED AGAINST A
LOVER
P EOPLE VS . T ISMO
G.R. NO. L-44773, DECEMBER 4, 1991
J. DAVIDE, JR.
FACTS: Early one evening, Din went to Tismo’s house to get her lunch
box. While Tismo’s mother (who was Din’s co-teacher) and a visiting
couple were at the kitchen, Din stayed in the sala. Tismo then approached
Din and demanded her to “reciprocate his love for her.” Din refused.
Tismo then dragged her to the dining room. There, Tismo kissed her and
touched her private parts. Tismo’s mother came and saw them.
After the visitors left, Tismo and his parents tried to convince Din
to marry Tismo. Soon, Tismo’s younger brother and a friend joined in
trying to convince Din to marriage. Later, Tismo and Din went to the
house of Tismo’s friend. There, Tismo succeeded in having sexual
intercourse with Din. Din left the house the following morning.
Tismo was charged with and found guilty of the crime of rape.
Tismo defended that he and Din were sweethearts.
DECISION: The Supreme Court affirmed the conviction. Well settled is
the rule that when a woman says she has been raped, she says in effect
all that is necessary to show that rape has been committed and that if her
testimony meets the test of credibility, the accused may be convicted on
the basis thereof.
The reason for this seems quite obvious, especially with respect
to the Filipina. Considering a Filipina’s inbred mode and antipathy
in airing publicly things that affect her honor, it is hard to conceive
that she would assume and admit the ignominy she had undergone
if it were not true. A complainant would not risk ruining her future
and exposing herself to ridicule if her charge were not true. If she
does undergo the expense, trouble and inconvenience of a public
trial, suffer the scandals, embarrassments and humiliation such
action would indubitably invite, as well as allow an examination of
her private parts, it is to bring to justice the person who had abused
her. Indeed, if a complainant had voluntarily consented to have
sex with the accused, her most natural reaction would have
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been to conceal it and keep it as this would bring disgrace to her
honor and reputation as well as to her family.
Tismo failed to prove that he and Din were indeed sweethearts.
Din categorically denied such claim. More important, Tismo failed to
present substantial evidence, such as “love notes, mementoes or pictures”
to support his claim.
Further, assuming arguendo that Tismo and Din were sweethearts,
this fact alone does not preclude the commission of rape. “A sweetheart
cannot be forced to have sex against her will; from a mere fiancée, a man
cannot definitely demand sexual submission and worse, employ violence
upon her on mere justification of love. Love is not a license for lust.”
See People vs. Jimenez, G.R. No. 128364, February 4, 1999; People vs. Acabo, G.R.
No. 106977, July 17, 1996; People vs. Lampano, G.R. No. L-61223, May 28, 1988.
“A W O M A N ’ S
(T HE M AGGIE
PRIDE IS FAR STRONGER THAN HER YEN FOR MONEY”
DE LA
R IVA C ASE )
P EOPLE VS . JOSE ET AL .
G.R. NO. L-28232, FEBRUARY 6, 1961
PER CURIAM
FACTS: Early one morning, Jill, a 25-year-old movie actress, was driving
home from the studio when four men in a Pontiac car followed her. The
Pontiac forcibly stopped her car as she was about to enter the gate of
her house. The men dragged Jill out of her car and forced her inside the
Pontiac. There, the four men took turns fondling parts of Jill’s body.
They blindfolded Jill and brought her to a hotel. At the hotel, they ordered
Jill to dance naked and then took turns raping her.
They struck her whenever she resisted. Jill passed out twice and each
time, the men threw water on her face to revive her before raping her all
over again. Thereafter, the men ordered a cab driver to bring Jill home,
warning her not to tell anyone of the incident, lest they hunt her down
and throw acid on her face.
Jill filed a complaint for forcible abduction with rape against the
four men. The accused insisted on their innocence saying that what
happened at the hotel was just a striptease exhibition. According to them,
Jill agreed to perform a “show” for a fee of P1,000.00.
The trial court convicted the accused (except for one who died
during detention) of the crime of forcible abduction with rape.
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DECISION: The Supreme Court sustained the convictions and further held
each accused guilty of three other counts of rape.
The Supreme Court ruled that the striptease-act-for-a-fee defense
“defies one’s credulity and reason and had utterly to counteract the
evidence for the prosecution,” particularly Jill’s testimony and the medical
report of the doctor who examined her. The Supreme Court could not
believe “that any woman exists, even one habitually engaged in this kind
of entertainment (which [Jill] has not been proven to be) who would
consent (and easily and promptly as defense claims) to do a performance,
not even for all the money in the world after the rough handling she
experienced from these wolves in men’s clothing who now hungered for
a show. There is no fury to match a woman stirred to indignation. A
woman’s pride is far stronger than her yen for money, and her revenge
much more keen.” It was incredible that “after the rudeness and meanness
of these men to her, [Jill] would in so short an interval of time forget her
indignation and so readily consent to satisfy their immoral curiosity about
her. The woman in her would urge her to turn the men’s hankering as a
weapon of revenge by denying them their pleasure.”
C IVIL
ACTION FOR DAMAGES AND SUPPORT FILED BY RAPE VICTIM
Q UIMIGUING VS . I CAO
G.R. NO. L-26795, JULY 31, 1970
J.J.B.L. REYES
FACTS: Weng and Icao were neighbors. Icao, a married man, had carnal
intercourse with Weng through force and intimidation. Weng became
pregnant as a result. This forced Weng to discontinue her studies. Hence,
she filed a case for support, damages and attorney’s fees against Icao.
Icao moved to dismiss Weng’s case for lack of cause of action
since the complaint did not allege that Weng bore a child. The trial court
dismissed the complaint. Weng moved to amend her complaint to allege
that as a result of the intercourse, she gave birth to a baby girl. The trial
court sustained Icao’s objection and denied Weng’s motion.
DECISION: On appeal, the Supreme Court reversed the decision of the
trial court and remanded the case for trial. It held that independently of
the right to support of the child conceived as a result of the rape, Weng
had a cause of action for damages based on her allegations in the complaint.
When a married man forces a woman who is not his wife to yield to his
lust, there is a clear violation of the rights of his victim that entitles the
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latter to claim compensation for the damage caused under Article 21 of
the Civil Code.
Rape of Girl-Children
R APE
AS A FORM OF GENDER DOMINATION
P EOPLE VS . S AYAT
G.R. NOS.102773-77, JUNE 8,1993
J. REGALADO
FACTS: Len, eight years old, and Sayat, 18 years her senior, are halfsiblings. At the time of the incident, they were the only occupants of
their house since their common father and Len’s mother were working
abroad. While their parents were overseas, Sayat raped Len five times,
threatening Len that he would kill her if she tells anyone about it. After
the fifth rape incident, Maribel, a relative living with them, noticed Len
coming from the stairs trembling and looking very much afraid. She asked
Len what happened but the latter did not answer. When Len’s mother
came home, Maribel mentioned to her what she observed. Confronted
by her mother, Len admitted that Sayat raped her. Sayat was charged
with five counts of rape. The trial court convicted him as charged. Hence,
he elevated the case to the Supreme Court alleging that his guilt was not
proven beyond reasonable doubt.
DECISION: Sayat’s guilt was proven beyond reasonable doubt. Minor
lapses in details of Len’s testimony are expected considering that at her
tender age, she was recounting details of a humiliating experience before
strangers. Len and her mother had no ill motive in filing the rape charges
against Sayat. No mother would involve her child to such disgrace just to
get even. Also, delay in reporting the incident does not mean that the
charges were fabricated. Victims react differently when raped.
Moreover, Len’s reaction was not contrary to human nature considering
her age and Sayat’s threat. Although Len’s birth certificate was not
formally offered in evidence, proof of her relationship with Sayat was
clear from her testimony, which is admissible as evidence of pedigree.
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In upholding Sayat’s conviction, the Supreme Court recognized that
the crime of rape is not merely motivated by lust; rather, it is a mode of
gender domination, to wit:
The conventional attribution is that lust is the motivating cause
for rape, although a view is held that this crime is actually a misguided
and blatant mode of domination by one gender over the other.
Regardless of the sociological cause, the law considers rape as
one of the most odious offenses. It becomes more abominable
where the rape victim is a minor whose innocent world is suddenly
shattered, leaving her with the psychological wounds from her
traumatic experience as she faces an uncertain future. The unkindest
cut, so to speak, is when the transgressor is the victim’s own kin.
The confluence of such detestable circumstances in what is by itself
already a heinous crime against chastity is exemplified by the present
case.
R APE
I S A VIOLATION OF THE MORES OF SOCIETY
P EOPLE VS . P AGUPAT
G.R. NO. 125313-16, JULY 31, 1998
EN BANC
FACTS: One morning, Pagupat, stepfather of Ara, 14 years old, pulled
the latter upstairs into a room and made her lie down. Pagupat forced his
penis into Ara’s vagina. After the sexual intercourse, Ara noticed that
her vagina was bleeding. Pagupat put on his clothes and told Ara that he
would kill her if she reports the incident to her mother. He raped Ara
three more times, poking a knife at her each time. Pagupat was charged
with and convicted of rape.
D ECISION: On automatic review, the Supreme Court affirmed the
conviction. It noted that the heinous character of the crime of rape in
Ara’s case consists, not only of the violation of one victim in the person
of the private complainant, but of the outrage against society as a whole.
The opening paragraph of the decision in People vs. Cristobal (252 SCRA
507 [1996]), aptly states:
Rape is the forcible violation of the sexual intimacy of another
person. It does injury to justice and charity. Rape deeply wounds
the respect, freedom, and physical and moral integrity to which
every person has a right. It causes grave damage that can mark
the victim for life. It is always an intrinsically evil act, an outrage
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upon decency and dignity that hurts not only the victim but the
society itself. (p. 510)
In People vs. Ramos (165 SCRA 400 [1988]), the Supreme Court
said:
Rape is a nauseating crime that deserves the condemnation of
all decent persons who recognize that a woman’s cherished chastity
is hers alone to surrender of her own free will. Whoever violates
that will descends to the level of the odious beast. (p. 408)
Rape becomes doubly repulsive when the outrage is perpetrated
not only on one’s own flesh and blood, but also with the present victim
who should have been the object of Pagupat’s fatherly love and selfless
caring. The man who rapes his own stepdaughter violates not only her
purity and her trust but also the very mores of his society which he had
so scornfully defied.
AN
INCESTUOUS ASSAULT I S A PSYCHOLOGICAL DEVIANCE
P EOPLE VS . P ECAYO
G.R. NO. 132047, DECEMBER 14, 2000
J. PANGANIBAN
FACTS: One night, while Ana was asleep in her room with her younger
sister, she sensed that Pecayo, her father, entered the room and stripped
off her clothes, shorts and panties. Pecayo then removed his shorts, put
himself on top of her and raped her. Ana did nothing because she was
afraid of Pecayo, who, when drunk, threatens to kill his family. Months
later, Pecayo again raped Ana.
Pecayo was charged with rape but he defended that the case was
filed merely because Ana resents him. He admitted that he gets angry
every time Ana comes home late from school. The trial court convicted
Pecayo of rape.
DECISION: The Supreme Court convicted Pecayo of two counts of rape.
Ana’s testimony was straightforward, spontaneous, and convincing, even
during cross-examination. Unless she was telling the truth, she could not
have admitted publicly that she was defiled by her own father, thereby
compromising her honor and dignity. It is undeniable that an incestuous
assault is a psychological deviance that inflicts social stigma upon the victim
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and the family. A rape victim’s testimony against her parent is entitled to
great weight, since, customarily, Filipino children have great respect for
their elders. Well settled is the rule that the lone testimony of the rape
victim, if credible, is sufficient to support a conviction. Ana’s failure to
shout for help while she was being ravished is irrelevant. Pecayo was the
victim’s father who, naturally, had moral and physical ascendancy over
her. Moreover, delay in reporting rape incidents and the lack of strong
resistance against the aggressor do not diminish the credibility of the
victim, who testified in a straightforward and consistent manner.
F ORCE
NECESSARY IN RAPE IS RELATIVE
P EOPLE VS . B UATES
G.R. NOS. 140868-69, AUGUST 5, 2003
J. CORONA
FACTS: While Cel, 11 years old, was on her way home, her uncle, Buates
called her, purportedly to give her something. As Cel approached Buates,
the latter pointed a knife at her and raped her. Thereafter, he instructed
Cel to dress up and warned her not to tell her family about the incident,
otherwise, he would kill them.
Three years later, Buates intercepted Cel on her way home. He
covered her mouth and led her to a pili tree near the road. He then
inserted his penis into her vagina. Cel felt pain. She was not able to resist
because of Buates’ threats.
Cel revealed her harrowing experience to her aunt. Buates was
charged with and convicted of statutory rape.
DECISION: The Supreme Court upheld the conviction. Buates cannot
impugn Cel’s credibility on account of her alleged “normal” behavior after
both sexual assaults. Different people respond differently to a given
stimulus or type of situation. There is no standard form of behavioral
response when one undergoes a shocking or startling experience. Cel’s
demeanor was understandable in the light of the circumstances surrounding
both incidents of rape. She did not immediately disclose her misfortune
to anybody because of Buates’ death threats.
Buates argued that the prosecution was unable to prove the existence
of force, threat or intimidation in both cases. However, the Supreme Court
said that the act of holding a knife, by itself, is strongly suggestive of force
Engendering the Philippine Judiciary
103
or at least, intimidation. Threatening the victim with it is more than
sufficient to bring a woman to submission.
Since the first act of rape was committed with force, violence and
intimidation, it was pointless to discuss the age of the complainant. Under
the law, having carnal knowledge of a woman through force and
intimidation or when she is below 12 years of age constitutes rape. Proof
of either is sufficient to convict the culprit.
During the second sexual assault, it was not necessary that the
force or intimidation employed in accomplishing the crime be so great or
of such character as could not be resisted. The force necessary in rape is
relative depending on the age, the size, and the strength of the parties.
P HYSICAL
RESISTANCE I S NOT REQUIRED IN RAPE
P EOPLE VS . B LANCAFLOR
G.R. NO. 130586, JANUARY 29, 2004
J. AUSTRIA-MARTINEZ
FACTS: Em, 14 years old, was sleeping on the floor one early morning
when Blancaflor, common-law husband of her mother, woke her up.
Blancaflor asked her to move to the bed with her younger brother.
Blancaflor then went on top of Em, mashed her breasts and inserted his
penis into his vagina. Em could not resist because Blancaflor threatened
her with a gun which was just beside them. Em reported the incident to
her mother. Em’s mother and Blancaflor quarreled, but they settled the
matter after Blancaflor promised that he would not molest Em again.
Blancaflor, however, continued to touch Em’s private parts, whenever
he had a chance. More than a year later, Em’s teacher noticed that Em
was often silent and absent-minded. After asking Em, she learned about
Blancaflor’s dastardly acts which led to the filing of a complaint for rape
against the latter.
Blancaflor defended that there was no evidence that he forced Em into
sexual intercourse. Em allegedly offered no resistance when the rape took
place. Blancaflor also argued that the delay of 14 months in reporting the
alleged rape raises doubt on Em’s credibility. He further claimed that the charge
against him was only motivated by ill-will. Unconvinced by these claims,
the trial court convicted Blancaflor of rape and sentenced him to death.
DECISION: The Supreme Court affirmed the conviction but reduced the
penalty to reclusion perpetua because the prosecution failed to properly
Engendering the Philippine Judiciary
104
allege in the information the qualifying circumstance that Em was then
below 18 years old and that Blancaflor is the common-law spouse of her
mother.
Physical resistance need not be proven in rape when intimidation is
exercised upon the victim and she submits herself, against her will, to the
rapist’s advances because of fear for her life and personal safety. It
suffices that the intimidation produces fear in the mind of the victim that
if she did not submit to the bestial demands of the accused, something
worse would befall her. Moreover, Em had been living with Blancaflor
since she was a young child. She considered him as a stepfather who had
considerable moral ascendancy over her. This relationship sufficiently
explains why Em did not offer any physical resistance.
As to the delay in reporting the incident, the Supreme Court held
that Em could hardly be expected to know how to go about reporting
the crime to the authorities without the help of an adult because she was
only 14 years old at the time the crime was committed.
The Supreme Court further ruled that it is inconceivable for a girl of
tender years to concoct a story, provide details of a rape incident and
ascribe such wickedness to her stepfather just because she resents being
disciplined by him. By thus charging him, she exposes herself to extreme
humiliation and stigma.
See People vs. Domingo, G.R. No. 97921, September 8, 1993; People vs. Shareff Ali El
Akhtar, G.R. No. 130640, June 21, 1999.
PHYSICAL
SUPERIORITY
OF
ACCUSED
MAY
RENDER
THE
VICTIM’ S
RESISTANCE FUTILE
P EOPLE VS . M ARABILLAS
G.R. NO. 127494, FEBRUARY 18, 1999
J. PARDO
FACTS: Mely, 14 years old, was warding off a lost cow in their yard
when Marabillas dragged her and brought her near the river. Marabillas
pushed Mely to the ground. Mely fought off Marabillas and tried to free
herself by shaking her body. However, she could not do anything because
Marabillas’ strong hands pinned her down. When Mely was already lying
on the ground, Marabillas raped her. After Marabillas consummated his
carnal lust, Mely ran away from him.
Engendering the Philippine Judiciary
105
Mely told her mother about what happened. Marabillas was charged
with rape. He raised the sweetheart theory as defense. According to
him, he had been meeting with Mely before. Mely allegedly agreed to
have sex with him by the river after professing her love to him. The trial
court convicted Marabillas of rape.
DECISION: On appeal, the Supreme Court affirmed the conviction. It
dismissed Marabillas’ claim that there was no resistance on Mely’s part.
The Supreme Court noted that Mely tried to struggle but Marabillas was
too strong for her. In fact, the physical superiority of Marabillas clamped
down not only Mely’s body but also her mind. He succeeded in totally
intimidating her, using his physical strength as a weapon. Also, Marabillas
threatened to kill her if she screams for help. For a young girl of 14, these
conditions were sufficient to overcome her will to resist and escape.
Moreover, it is highly inconceivable for Mely to fabricate a charge
of defloration, undergo a medical examination of her private parts, subject
herself to public trial, and tarnish her family’s honor and reputation unless
she was motivated by a potent desire to seek justice for the wrong
committed against her. As the trial court noted, Mely cried when she
related the incident in court, showing her difficulty in sharing her ordeal.
FULL
PENETRATION I S N O T REQUIRED I N RAPE
P EOPLE VS . M ICLAT
G.R. NO. 137024, AUGUST 7, 2002
J. KAPUNAN
FACTS: Meg, 11 years old, lived with her maternal grandmother. One
day, while Meg was playing outside the house, her uncle, Miclat, called
her. Afraid of him, Meg approached Miclat who immediately closed the
door and window of the house and told her to lie down. He removed
Meg’s panties, put down his pants and masturbated in front of her. Miclat
raped Meg thereafter.
Miclat was charged with and convicted of consummated rape. On
appeal, he contended that he can only be convicted of attempted rape.
Meg testified that after Miclat removed her panties, he waited for a
white substance to come out before he pressed his organ against hers.
Miclat posited that “it is a natural fact that after [a] man’s masturbation,
his penis becomes soft and small.” Logically, it follows that a penis cannot
become erect immediately after masturbation. Thus, at most, his penis
only touched Meg’s vagina and, with no erection, penetration is impossible.
Engendering the Philippine Judiciary
106
D ECISION: The Supreme Court held Miclat guilty of consummated
statutory rape. Miclat inserted his penis into Meg’s vagina right after a
white substance came out from his sex organ. Penetration, no matter
how slight, or the mere introduction of the male organ into the labia of
the pudendum constitutes carnal knowledge.
“Carnal knowledge,” unlike its ordinary connotation of sexual
intercourse, does not necessarily require that the vagina be penetrated
or that the hymen be ruptured. In most cases of statutory rape where
total penetration of the victim’s organ is improbable due to the smallness
of the vaginal opening, it has been held that actual penetration of the
victim’s organ or the rupture of the hymen is not required. The mere
touching by the male organ or an instrument of sex of the labia of the
pudendum of the woman’s private parts is sufficient to consummate rape.
In People vs. Monfero (G.R. No. 126367, June 17, 1999), the appellant
was convicted of rape on a mere finding that complainant felt appellant’s
penis touch her vagina although she was unsure whether there was
penetration or not.
P RESENCE
OF SPERMATOZOA I S NOT REQUIRED TO PROVE RAPE
P EOPLE VS . P ARCIA
G.R. NO. 141136, JANUARY 28, 2002
J. KAPUNAN
FACTS: Ena, 12 years old, was sleeping in the sala with her brothers when
her father’s friends, including Parcia, came for a drinking session. Her father
and his friends were in the kitchen when Parcia slipped into the sala, went
on top of Ena and raped her. Ena made sounds of struggle but she was not
able to fully resist as she was afraid of Parcia who was holding a gun.
Ena’s brother saw the incident but, out of fear, did not stop Parcia.
After raping Ena, Parcia proceeded to the kitchen and drank with
his companions. When Parcia left their house early the next day, Ena’s
brother told their father that Parcia raped Ena. Ena admitted what happened
and added that it was the fourth time Parcia sexually abused her.
Parcia was charged with rape. The trial court convicted him thereof
and sentenced him to reclusion perpetua. On appeal, Parcia contended
that the absence of spermatozoa in the victim’s vagina belies the
commission of rape. He also attacked Ena’s credibility. He reasoned Ena
would not have slept soundly and performed her usual morning chores if
he raped her that night.
Engendering the Philippine Judiciary
107
D ECISION : The Supreme Court convicted Parcia. The absence of
spermatozoa in the victim does not disprove rape since ejaculation is not
an element thereof. What consummates the crime is the contact of the
penis of the perpetrator, however slight, with the vagina of the victim
without her consent. The Supreme Court has held in numerous cases that
a rape charge may prosper even without a medical examination of the
victim, so long as the victim positively and consistently declares that she
was sexually abused.
The Supreme Court also ruled that there is no standard form of
human behavioral response to a shocking incident, a startling occurrence
or a frightful experience. The workings of a human mind under emotional
stress are unpredictable, such that people react differently to similar
situations.
See People vs. Lining and Salvacion, G.R. No. 138401, July 11, 2002.
U SE
OF WEAPON IS NOT AN ELEMENT OF RAPE
P EOPLE VS . R ODAVIA
G.R. NOS. 133008-24, FEBRUARY 6, 2002
PER CURIAM
FACTS: Cora, a minor, lived with her two younger brothers and father,
Rodavia. One particular month, Rodavia raped Cora at least 17 times,
either while she was sleeping or by forcibly asking her to join him in a
room. Cora tried to resist each time but Rodavia would always strip her
naked and threaten her that he would kill her with his knife if she discloses
the matter to anyone. Her brothers, who were only eight and ten years
old, knew about Rodavia’s bestial acts. They were, however, afraid of
their father and too young to help Cora.
When Cora’s aunt visited the next month, Cora reported to her
Rodavia’s sexual abuses. Cora then filed a complaint for qualified rape
against Rodavia. The trial court convicted him of 17 counts of qualified
rape and sentenced him to death. Rodavia countered that there was
insufficient evidence to support the allegation that he used a knife to
threaten Cora into submission. He also argued that he and his daughter
are lovers.
DECISION: The Supreme Court affirmed the conviction. It ruled that the
use of a kitchen knife or any other weapon for that matter is not an
element of the crime of rape. In a rape committed by a father against his
Engendering the Philippine Judiciary
108
own daughter, the former’s moral ascendancy and influence sufficiently
takes the place of violence or intimidation. Under the same circumstances,
proof of force and violence is not even essential because the moral and
physical ascendancy of the father over his daughter is sufficient to cow
her into submission to his bestial desires.
As regards the alleged love affair, the Supreme Court ruled that
being an affirmative defense, such allegation must be supported by
convincing proof. When the supposed love affair is between a father
and his daughter, courts must even be more cautious, if not totally
adverse, in lending any credence thereto. Even assuming that such
distorted notion of a father-daughter relationship exists, it does not
and will never justify rape, for the beloved cannot be sexually violated
against her will.
P RESENCE
OF INJURIES I S NOT REQUIRED T O PROVE RAPE
P EOPLE VS . E STADO
G.R. NO. 150867, FEBRUARY 5, 2004
J. PANGANIBAN
FACTS: Lyn, five years old, accompanied Estado and the latter’s friend
to look for her father. They found her father at a neighbor’s birthday
party. When Lyn’s father instructed her to go home, Estado followed
her. Estado then brought Lyn to the tambakan and raped her on a sofa.
Estado gave Lyn P2.00 thereafter. Later that day, Lyn’s mother saw her
crying along the road, without her shorts and with blood on her vagina.
Lyn’s shorts and slippers were found lying along the road along with the
black shirt which Estado wore on the day of the rape incident. Estado
was charged with and convicted of qualified rape.
DECISION: On appeal, the Supreme Court held Estado guilty only of
simple and not qualified rape. Since Em’s age was based only on her
mother’s testimony and not on her birth certificate, the Supreme Court
reduced the imposable penalty to reclusion perpetua.
Discrepancies referring only to minor details and collateral matters—
not to the central fact of the crime—do not affect the veracity or detract
from the essential credibility of the witnesses’ declarations, so long as
these are coherent and intrinsically believable on the whole. The Supreme
Court noted that even the most candid of witnesses make erroneous,
confused or inconsistent statements, especially when they are young
and easily overwhelmed by the atmosphere in the courtroom.
Engendering the Philippine Judiciary
109
Moreover, the absence of extra-genital physical injuries on the victim
does not necessarily negate the occurrence of rape, of which proof of
injury is not an essential element.
PRESENTATION
OF V I C T I M A S W I T N E S S I S N O T R E Q U I R E D T O P R O V E
RAPE
P EOPLE VS . P AROCHA
G.R. NO. 138866, MARCH 6, 2002
J. KAPUNAN
FACTS: One afternoon, Lulu, eight years old, was at home with her older
brother, Bill. When Bill urinated outside, he saw Parocha go up their house
with his shirt removed and covering his face. Inside the house, Parocha
sexually assaulted Lulu, who was then sleeping. Lulu was awakened and
tried to shout but Parocha covered her mouth. He remained on top of Lulu
for about five minutes, after which Lulu bled. Parocha told Bill to be silent
about what he witnessed, otherwise, he would kill him. As soon as
Parocha left the house, Lulu and Bill reported the incident to their mother.
Parocha was charged with statutory rape based on the testimonies
of Bill and the medico-legal who examined Lulu. Parocha raised the
defense of alibi and claimed that on the night of the alleged rape, he was
with a friend drinking beer at a store. He further testified that later that
night his mother fetched him and they went home. The trial court found
Parocha guilty of rape.
DECISION: On appeal, Parocha alleged that the prosecution’s case was
weak since it did not present Lulu as witness. He further questioned the
results of the medical examination which failed to show any physical
injury and the presence of spermatozoa.
The Supreme Court affirmed the conviction. Ordinarily, the testimony
of the offended party is of utmost importance in a rape case because the
victim and the alleged perpetrator are the only participants who can testify
on its occurrence. Nevertheless, the prosecution may opt not to present
the offended party, especially one so young as in this case, on the witness
stand to spare her the humiliation and pain of recalling once more the
dastardly act she has suffered from the hands of the accused. As long as
there are other evidence that could prove the commission of the crime
beyond reasonable doubt, the Supreme Court is not in a position to inquire
into the exercise of the prosecution’s discretion. Failure to present the
Engendering the Philippine Judiciary
110
offended party as a witness is not sufficient ground for dismissal. The
testimony of the offended party is not essential to convict the accused.
In this case, Bill was an eyewitness to the rape incident. He saw
Parocha enter their house. He was also inside the bedroom with the
victim when Parocha abused Lulu. He sufficiently testified to the fact of
the rape and the identity of the perpetrator.
The absence of external signs of physical injuries does not negate
the commission of rape. Despite the absence of physical injuries, the
medical examination showed that Lulu suffered a fresh laceration on her
hymen and other injuries in her genital area. In addition, the presence or
absence of spermatozoa is immaterial in a prosecution for rape.
MINOR
INCONSISTENCIES
DO
NOT
RENDER
A
CHILD’S
TESTIMONY
INCREDIBLE
P EOPLE VS . DADO ET AL.
G.R. NO. 87775, JUNE 1, 1995
J. VITUG
FACTS: One late evening, Kelly, 14 years old, and Hilda were walking
home from the poblacion’s dance hall. Edy and Diosdado suddenly
blocked their way and dragged Kelly to a nearby building, leaving Hilda
by the road. The two men each poked a knife against Kelly. They removed
her clothes and took turns raping her. After the rapists left, Kelly walked
to her aunt’s house. On her way, however, she met four other men,
including Federico and Rene who dragged her to a nearby banana station
and took turns in raping her. Thereafter, Federico and Rene left with a
threat that they would kill Kelly if she reveals the incident to anyone.
Kelly filed rape charges against the four accused. The trial court convicted
them as charged.
DECISION: The Supreme Court affirmed the trial court’s decision. It ruled
that minor lapses in Kelly’s testimony were expected since she was recounting
details of an experience so humiliating and so painful to recall. If the testimony
in court has minor differences from her sworn statement, it should be noted
that Kelly executed the sworn statement while she was still in daze and had
yet to recover from the tragedy. The Supreme Court likewise held that it
simply would be unnatural for a young girl to concoct a story of defloration,
allow an examination of her private parts, and thereafter subject
herself to a public trial or ridicule if she has not, in fact, been a victim of
Engendering the Philippine Judiciary
111
rape and deeply motivated by a sincere desire to have the culprit
apprehended and punished.
See People vs. Mahinay, G.R. No. 139609, November 24, 2003; People vs. Calayca,
G.R. No. 121212, January 20, 1999; People vs. Mayorga, G.R. No. 135405, November
29, 2000; People vs. Estado, G.R. No. 150867, February 5, 2004.
A
MENTAL RETARDATE MAY BE A COMPETENT WITNESS
P EOPLE VS . P ADILLA
G.R. NO. 126124, JANUARY 20, 1999
J. MENDOZA
FACTS: Kely, a 13-year-old retardate, was in a citrus farm owned by a
neighbor when Padilla, a farmhand, accosted her. Armed with a scythe
and a knife, Padilla forced Kely to undress and lie down on the grass.
Padilla then forced himself on her. Kely resisted Padilla’s advances, but
he proved to be no match for her. Padilla succeeded in ravishing her.
Padilla was charged with and convicted of rape.
DECISION: The Supreme Court convicted Padilla. The basic test of a
witness’ qualification is whether he can perceive and, perceiving, can
make known his perception to others.
Hence, a mental retardate is not, by reason of such handicap alone,
disqualified from testifying in court. He or she can be a witness, depending
on his or her ability to relate what he or she knows. If the testimony of a
mental retardate is coherent, the same is admissible in court. Thus, the
Supreme Court in several cases has upheld the conviction of the accused
based mainly on statements of the victim who was a mental retardate.
Moreover, the law does not impose on the rape victim the burden
to prove resistance. That Kely did not struggle or shout for help in resisting
Padilla does not negate the use of force and intimidation. The use of a
knife and the threat of harm may be sufficient to intimidate the victim to
obedience. In any case, Kely, a minor, cannot be expected to react like
a mature woman under such circumstances. Because of her immaturity,
she can be easily intimidated, subdued, and terrified by a strong man like
Padilla.
See People vs. Matamorosa, G. R., Nos. 104996-98, March 28, 1994.
Engendering the Philippine Judiciary
112
MOTHER
IS COMPETENT TO TESTIFY ON THE PHYSICAL AND MEDICAL
C O N D I T I O N OF V I C T I M
P EOPLE VS . C ANON
G.R. NO. 141519, JANUARY 22, 2004
J. CARPIO-MORALES
FACTS: Kay, a 16-year-old mental retardate, was alone in the house when
she heard a knock on the door. Upon opening the door, she found Canon
who immediately pulled her inside the house. Canon poked a fan knife
against Kay, covered her mouth, and raped her. Canon told her not to tell
anyone about what happened. Kay did not tell her parents about the rape
incident until her mother noticed that her abdomen was getting bigger.
A complaint for rape was filed against Canon. Canon denied the
charge. In defense, he interposed the sweetheart theory, claiming that he
and Kay have had consensual sexual intercourse ten times. Canon further
argued that the prosecution failed to establish Kay’s mental condition
since no expert witness was presented to attest thereon. The trial court
found Canon’s claims unmeritorious and convicted him as charged.
DECISION: The Supreme Court affirmed the conviction. It ruled that
Canon’s reliance on the much abused “sweetheart story” in rape cases
rashly derides its intelligence and sorely tests its patience. Being the
victim’s sweetheart does not preclude his commission of rape, especially
considering the victim’s unwavering testimony.
The Supreme Court admitted the testimony of Kay’s mother as
proof of Kay’s mental retardation. The mother of the offended party in
rape cases, though not a psychiatrist, if she knows the physical and mental
condition of the party, how she was born, what she is suffering from,
and what her attainments are, is competent to testify on the matter.
M ORAL
ASCENDANCY SUBSTITUTES FOR VIOLENCE A N D INTIMIDATION
P EOPLE VS . M ATRIMONIO
G.R. NO. 82223, NOVEMBER 13, 1992
J. DAVIDE, JR.
FACTS: One night, while Julie was sleeping with her brother, she noticed
her father, Matrimonio, sitting beside her. When she asked why he was
there, Matrimonio told her not to shout lest he would kill her, her mother
and her brother. Matrimonio then raped her. Julie attempted to resist but
Engendering the Philippine Judiciary
113
due to Matrimonio’s threat, she succumbed to his will. She did not reveal
her ordeal to anyone because of Matrimonio’s warning. Julie became
pregnant as a result. Four months later, Matrimonio again raped Julie with
a similar threat that he would kill her and her family if she reports the
incident to anyone. Matrimonio was charged with and convicted of rape.
DECISION: The Supreme Court upheld the conviction of Matrimonio. It
held that Matrimonio conveniently employed two forms of intimidation—
threats and his overpowering moral influence—against Julie.
Matrimonio craftily threatened Julie during the initial stage of the
rape by telling her not to shout or else she would be killed. He also
threatened to kill her family to force her to yield her honor while he was
already on top of her. Julie believed the threats since she had seen
Matrimonio beat up her brother as if he would kill him.
In addition, Matrimonio took full advantage of his moral ascendancy
and influence over his daughter. In a rape committed by a father against
his own daughter, the father’s moral ascendancy and influence over the
latter substitutes for violence or intimidation. That ascendancy or influence
necessarily flows from the father’s parental authority, which the
Constitution and the laws recognize, support and enhance, as well as from
the children’s duty to obey and observe reverence and respect towards
their parents. Such reverence and respect are deeply ingrained in the minds
of Filipino children and are recognized by law. Abuse of both by a father
can subjugate his daughter’s will and force her to do whatever he wants.
See People vs. Agbayani, G.R. No. 122770, January 16, 1998; People vs. Erardo, G.R.
No. L-32861, January 31, 1984.
R APE
OF PROSTITUTED CHILD
P EOPLE VS . J ALOSJOS
G.R. NOS. 132875-76, NOVEMBER 16, 2001
J. YNARES-SANTIAGO
FACTS: Rina was a minor below 12 years old. Her foster father peddled
her for commercial sex. Rina first met Jalosjos at his office. Jalosjos brought
her to his condominium unit where he kissed her on the lips, changed her
clothes, and bathed her while fondling her breasts. He inserted his finger
into her vagina. At one time, Jalosjos placed his tongue on her vagina.
Jalosjos had sexual intercourse with her several times in his condominium.
Days after, Jalosjos transferred Rina to another building where he was
Engendering the Philippine Judiciary
114
staying. There, he took photographs of Rina with her breasts and legs
exposed.
Rina escaped from her foster father and filed a complaint against
the latter. During the investigation, Jalosjos’ participation was discovered.
He was subsequently charged with rape and acts of lasciviousness. The
trial court convicted him of six counts of acts of lasciviousness and two
counts of statutory rape.
DECISION: The Supreme Court upheld the trial court’s conviction with
modifications. The environmental circumstances displayed by the graphic
narration of what took place in Jalosjos’ room are consistent with Rina’s
testimony, which showed that rape was legally consummated.
The prosecution established beyond reasonable doubt that Jalosjos
had carnal knowledge of Rina. Moreover, the prosecution successfully
proved that Rina was only 11 years old at the time she was sexually
abused. The absence of proof of any struggle, or for that matter, of
consent or passive submission to the sexual advances of Jalosjos was of
no moment. The fact that Jalosjos had sexual congress with 11-year-old
Rina is sufficient to hold him liable for statutory rape.
As regards the instances when Jalosjos inserted his finger into Rina’s
vagina, the Supreme Court held that Jalosjos cannot be convicted of
rape for such act. These insertions took place before the Anti-Rape
Law, penalizing the same as rape, was enacted.
S TATUTORY
RAPE
P EOPLE VS . P ELIAS J ONES
G.R. NO. L-61165, JUNE 24, 1986
J. GUTIERREZ, JR.
FACTS: One night, Jones gave her youngest daughter some money so
that she would leave the house. When she left, Jones summoned his
eldest daughter, Jes, then nine years old. He inserted his finger and then
his penis into Jes’ genitalia. Jones stopped only when Jes told her father
that she would tell her mother what happened. Jones then threatened Jes
that he would kill her if she did. Jes’s mother later learned about the
sexual assault. Jones was charged with and convicted of statutory rape.
DECISION: The Supreme Court upheld the conviction. That Jones had carnal
knowledge of his own nine-year-old daughter was established beyond
Engendering the Philippine Judiciary
115
reasonable doubt. It is settled that carnal knowledge of a girl below 12
years old is always rape, even if no force or intimidation was used, and
even if she was not deprived of reason or otherwise made unconscious,
and even if she agreed or gave consent. The gravamen of the offense is
carnal knowledge of a woman below 12 years old.
See People vs. Bolatete, G.R. No. 127570, February 25, 1999.
J UDICIAL
NOTICE OF CHILD ’ S AGE
P EOPLE VS . A BAÑO
G.R. NO. 142728, JANUARY 23, 2002
PER CURIAM
FACTS: Tin, six years old, was sleeping with her father, Abaño, when the
latter undressed her. She woke up and realized that she was already
naked. She shouted for help from Irene, their neighbor. Irene rushed to
Tin’s house but Abaño told her that Tin just had a bad dream. Abaño
then raped Tin and threatened her not to tell anyone, or he would kill her.
The next day, Irene saw that Tin had difficulty walking. Tin eventually
confided to Irene that her father raped her.
Abaño was charged with rape. The trial court found him guilty
thereof and sentenced him to death.
DECISION: The Supreme Court sustained the conviction. Abaño’s only
defense was a blanket denial. While denial is a legitimate defense in rape
cases, bare assertions to this effect cannot overcome the categorical
testimony of the victim. It is an established rule that an affirmative
testimony is far stronger than a negative testimony, especially so when
the earlier testimony comes from a credible witness. Tin declared with
certainty that it was her father who raped her because she saw his face.
There is no better way for a victim to get a good look at her rapist than
to see him face to face.
Tin’s minority and relationship with Abaño are special
qualifying circumstances that elevate the penalty to death. To be
properly appreciated, these twin circumstances must both be
alleged in the information and proven with certainty. In this case,
Tin’s age and relationship with Abaño have been properly recited
in the indictment and proven during trial. Both Tin and Abaño
confirmed such age and relationship in their respective testimonies.
Thus, there was no need for the prosecution to present Tin’s
Engendering the Philippine Judiciary
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live birth certificate or other equally acceptable official document
concerning her date of birth to determine her age. Such independent proof
can be dispensed with in cases where the court can take judicial notice
of the victim’s tender age, in view of the manifest minority of the victim.
The imposition of death penalty was thus warranted.
P ROOF
OF AGE OF RAPE VICTIM
P EOPLE VS . P RUNA
G.R. NO. 138471, OCTOBER 10, 2002
C.J. DAVIDE, JR.
FACTS: Nena, three years old, was defecating in her neighbor’s backyard
while her mother was ten meters away, drawing water. When Nena’s
mother got home, she did not find Nena. After a few minutes of searching,
she found Nena red-faced, crying and frightened. Nena narrated that a
certain “Boy” (who in their place refers only to Pruna) brought her to a
grassy area and raped her. A rape case was, thus, filed against Pruna.
The trial court convicted Pruna of qualified rape and sentenced him to
death.
On appeal, Pruna argued that the trial court erred in considering
Nena as a competent and credible witness since she was only three years
old when the alleged crime was committed. Pruna further argued that
the qualifying circumstance of minority was not duly proven to justify
the imposition of the death penalty.
DECISION: The Supreme Court affirmed the trial court’s decision with
modification. It held Pruna guilty of the crime of statutory rape, and not
qualified rape. It reduced the penalty imposed from death to reclusion
perpetua.
The Supreme Court held that Nena was a competent witness. As a
general rule, when a witness takes the stand, the law presumes that he is
competent and the burden of proving incompetency lies on the party
objecting to the competency. “(N)o precise minimum age can be fixed at
which children shall be excluded from testifying. The intelligence, not the
age, of a young child is the test of the competency as a witness.”
On the matter of proving the victim’s age, the Supreme Court
enumerated the following guidelines for proving the same:
In order to remove any confusion that may be engendered by
the foregoing cases, we hereby set the following guidelines in
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appreciating age, either as an element of the crime or as a
qualifying circumstance.
1. The best evidence to prove the age of the offended party
is an original or certified true copy of the certificate of
live birth of such party.
2. In the absence of a certificate of live birth, similar authentic
documents such as baptismal certificate and school
records which show the date of birth of the victim would
suffice to prove age.
3. If the certificate of live birth or authentic document is
shown to have been lost or destroyed or otherwise
unavailable, the testimony, if clear and credible, of the
victim’s mother or a member of the family either by affinity
or consanguinity who is qualified to testify on matters
respecting pedigree such as the exact age or date of
birth of the offended party pursuant to Section 40, Rule
130 of the Rules on Evidence shall be sufficient under
the following circumstances:
a. If the victim is alleged to be below 3 years of age
and what is sought to be proved is that she is less
than 7 years old;
b. If the victim is alleged to be below 7 years of age
and what is sought to be proved is that she is less
than 12 years old;
c. If the victim is alleged to be below 12 years of age
and what is sought to be proved is that she is less
than 18 years old.
4. In the absence of a certificate of live birth, authentic
document, or the testimony of the victim’s mother or
relatives concerning the victim’s age, the complainant’s
testimony will suffice provided that it is expressly and
clearly admitted by the accused.
5. It is the prosecution that has the burden of proving the
age of the offended party. The failure of the accused to
object to the testimonial evidence regarding age shall not
be taken against him.
The Supreme Court warned that “the trial court should always make a
categorical finding as to the age of the victim.” In this case, the prosecution
did not present Nena’s birth certificate or any similar authentic document,
such as baptismal certificate, to prove her age. The trial court based Nena’s
age only on the Medico-Legal Report. Upon review, the Supreme Court
found nothing in the report which would make one conclude that the victim
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was three years old at the time of the crime. In view of the uncertainty
attending the exact age of the victim and the severity of the penalty
imposed, the Supreme Court ruled that Pruna cannot be convicted of
qualified rape; hence, the death penalty cannot be imposed on him. The
Supreme Court, however, considered the statement of Nena’s mother
that she was three years old as sufficient for Pruna’s conviction for
statutory rape.
See People vs. Invencion, G.R. No. 131636, March 5, 2003.
S TANDARDS
FOR MEDICAL EXAMINATION OF A CHILD ’ S PRIVATE ORGAN
P EOPLE VS . B ARING , J R .
G.R. NO. 137933, JANUARY 28, 2002
J. BUENA
FACTS: When her parents separated, Fe lived with her grandmother and
the latter’s common-law husband, Baring. Baring raped Fe when she was
seven years old and repeated such sexual abuse whenever she was alone
in the house. When Fe’s mother learned about Baring’s beastly acts, Baring
was charged with statutory rape.
The trial court convicted Baring of statutory rape and sentenced
him to death. On appeal, Baring alleged that the trial court erred in
convicting him of rape.
DECISION: The Supreme Court affirmed the conviction but reduced the
penalty to reclusion perpetua. The evidence presented showed that there
was no statutory rape that warranted the imposition of the death penalty.
Baring contended that the trial court denied him his right to subject
the blood on the victim’s panty for DNA testing (supposedly to prove
that the lover of Fe’s mother committed the rape). It must be noted that
in the prosecution of rape cases, the presentation of the bloodstained
panty is not even essential. Fe’s credible testimony, standing alone, is
sufficient basis for Baring’s conviction.
A review of the transcript of the stenographic notes revealed that
Baring’s counsel waived his right to cross-examine the medico-legal officer.
Hence, Baring was not deprived of his constitutional right to confront the
witness. In any case, medical certificate is not indispensable to prove the
commission of rape inasmuch as the victim’s testimony alone, if credible, is
sufficient to convict the accused of the crime. Besides, testimonies of rape
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victims who are of tender age are credible and are given full weight and
credit.
In commenting on the results of Fe’s medico-legal examination, the
Supreme Court found occasion to discuss the proper procedure in
examining a child’s vagina, viz:
This Court is disturbed by the method of physical examination
done on the seven-year-old victim. We noticed that in the
examiner’s effort to show the existence of abuse, the examining
physician inserted his smallest finger, as shown in the medico-legal
report that the “external vaginal orifice admits tip of the examiner’s
finger.”
It bears to stress that this particular manner of establishing
evidence—by determining the diameter/hymenal opening in rape
cases—was a common practice in the past. With the passage of
R.A. 7610, this Court has nonetheless allowed the utilization of the
same kind of evidence in the prosecution of Child Abuse cases. In
light, however, of radical medical developments and findings,
specifically as to the determination of the existence of child sexual
abuse, this Court deems it necessary to firmly adopt a more “child
sensitive” approach in dealing with this specie or genre of crime.
In the international scientific community, recent medical studies
have shown that measurement of hymenal opening is unreliable in
determining and/or proving child sexual abuse—
“The diameter of the hymenal opening previously has been
used as a diagnostic criterion for abuse. More recent studies have
shown this to be undependable (Paradise, 1989). Factors affecting
hymenal and anal diameter include the examination position
(McCann, Voris, Simon, & Wells, 1990) and the degree of
relaxation of the child. The anal diameter is also affected by the
presence of stool in the ampulla. Hymenal diameter may increase
with age and with the onset of pubertal development.”
xxx
xxx
xxx
Hence, insertion of a finger or any foreign matter inside the
hymenal opening under the pretext of determining abuse is
unnecessary and inappropriate. The Philippine Judicial Academy
[PHILJA] training program for family court judges, through the
auspices of the UP-PGH Child Protection Unit, sanctioned that in
prepubertal girls without active bleeding, all that is needed is an
external examination with a good light source and magnification.
Be that as it may, the physical findings alone will not be conclusive
of child sexual abuse, for a child who gives a clear, consistent,
detailed, spontaneous description of being sexually molested may
still have normal genital examination. Despite the physical or
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laboratory findings, however, a child’s clear and convincing
description of the abuse has a high rate of probability.
L EADING
QUESTIONS ALLOWED IN EXAMINATION OF CHILD WITNESS
P EOPLE VS . P EREZ
G.R. NO. 142556, FEBRUARY 5, 2003
PER CURIAM
FACTS: Oli, six years old, was walking one noon when Perez approached
her and introduced himself as “Johnny.” Perez strangled and boxed Oli
causing her to fall. Perez then lowered his pants, removed Oli’s panties
and raped her. Oli felt excruciating pain but she could not resist because
of Perez’s strength and weight. When Perez left, Oli, with her private
organ bleeding, walked to the nearest house and asked for help.
Perez was charged with and convicted of rape. On appeal, he
argued that his identification in open court by Oli was highly irregular.
Perez reasoned that the prosecutor already identified him as the man
wearing an orange shirt when the prosecutor asked Oli to identify her
alleged rapist. The questions asked of Oli are thus leading questions.
DECISION: The Supreme Court upheld the conviction. As a rule, leading
questions are not allowed on direct examination. However, the rules
provide for exceptions when the witness is a child of tender years. It is
usually difficult for such child to state facts without prompting or
suggestion. Hence, leading questions are necessary to coax the truth out
of their reluctant lips. In the case at bar, the trial court was justified in
allowing leading questions to Oli, who was evidently young and unlettered,
making the recall of events difficult, if not uncertain. As explained in
People vs. Rodito Dagamos (G.R. No. 137385, January 23, 2002):
The trend in procedural law is to give wide latitude to the courts
in exercising control over the questioning of a child witness. The
reasons are spelled out in our Rule on Examination of a Child
Witness, which took effect on December 15, 2000, namely, (1) to
facilitate the ascertainment of the truth, (2) to ensure that questions
are stated in a form appropriate to the developmental level of the
child, (3) to protect children from harassment or undue
embarrassment, and (4) avoid waste of time. Leading questions in
all stages of examination of a child are allowed if the same will
further the interests of justice.
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U NNECESSARY
AND INSENSITIVE QUESTIONS DURING CROSS - EXAMINATION
P EOPLE VS . B ORAS
G.R. NO. 127495, DECEMBER 22, 2000
J. BUENA
FACTS: One day, Boras invited his six-year-old neighbor, Thea, to go
with him. Thea joined him since she was familiar with her neighbor. They
went to a guava tree near the coconut plantation. There, Boras raped
Thea. When Thea’s uncle saw them, Thea ran away.
Boras was charged with rape. Pending trial, Boras feigned to have
lost his sanity. His psychological examination, however, proved otherwise.
The trial court convicted Boras of statutory rape.
DECISION: The Supreme Court affirmed the conviction. As the trial court
observed, Boras was not insane. In this regard, the trial court’s observation
of the demeanor and deportment of witnesses, as a rule, will not be
interfered with, considering that the behavior, gesture, inflection of voice
and manner of responding to questions propounded to witnesses are
best available to the trial court. The trial court was not remiss in its duty
in determining the mental capacity of Boras when it ordered his
confinement in a hospital for medical and psychiatric evaluation which
revealed that he was “sane and coherent.”
The Supreme Court found occasion to comment on the questions
propounded to Thea at the witness stand. Asking questions like “At the
time when you were raped by Nolito Boras, was his penis hard or soft?”
and “Did you see your Uncle Cerilo Guirela after the accused Nolito
Boras stop [sic] pushing and pulling his penis to your vagina or while he
was still in the process of pushing and pulling his penis to your vagina?”
are unnecessary, uncalled for, and excessive queries.
It must be stressed that in dealing with rape cases of children,
especially those below twelve years of age, due care must be
observed by the trial court in handling the victim. In fact, more
often than not, the grueling experience in the trial court in the
course of direct and cross-examination is more traumatic than the
fact of rape itself. On such occasions, mishandling of victims lead
to psychological imbalances which, if not properly treated by
medical experts, will lead to an abnormal behavioral response
against the idea of sex itself and disturbed interaction with the
opposite sex or of the same sex. xxx By subjecting her into explaining
whether she was forced or intimidated is excessive. For proof of
force and intimidation is unnecessary in statutory rape. Considering
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that there is a medical report substantiating the allegations made
by the victim, the manner of examination of the victim must be
tempered. Especially in this case, since the child is only six years
old who remains uncorrupted. In rape, mere touching of (a) male’s
organ to the pudendum of (a) female’s organ is enough to
consummate the crime. Whether the organ was fully erect or not,
to a child of six years of age, slight penetration consummates rape.
D EFECTIVE
PLEA OF GUILT DOES NOT PRECLUDE CONVICTION IF THERE
WAS AMPLE PROOF OF RAPE
P EOPLE VS . R ODRIGUEZ
G.R. NO. 133984, JANUARY 30, 2002
J. VITUG
FACTS: Lia, 16 years old, was sleeping when her father, Rodriguez, raped
her. Rodriguez’s abuses were repeated several times until a complaint
for rape was finally filed against him.
During arraignment, Rodriguez pleaded guilty. After the prosecution
presented its evidence, the trial court convicted Rodriguez and sentenced
him to death. On appeal, Rodriguez argued that the trial court erred in
ignoring the safeguards expressed in the Rules of Criminal Procedure on
appreciating a plea of guilt. As required by said rules, the court must
make a searching inquiry on the accused’s voluntariness and full
comprehension of the consequences his guilty plea.
DECISION: The Supreme Court affirmed the conviction but reduced the
penalty to reclusion perpetua. Although the complaint alleged that Lia
was 16 years old at the time of the rape, there was no proof presented
to prove the same.
As regards Rodriguez’s alleged defective plea of guilt, the Supreme
Court ruled that he may still be convicted if there is on record ample
proof, not contingent on the plea of guilty, on which to predicate
conviction. There is such evidence in this case.
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R APISTS
HAVE NO RESPECT FOR PLACE AND TIME
P EOPLE VS . T AGUD , S R .
G.R. NO. 140733, JANUARY 30, 2002
J. CARPIO
FACTS: Esa, 17 years old, took a day off from work on the eve of her
birthday. While Esa was at home with her younger brother and her father,
Tagud, the latter forcibly undressed her and inserted his penis into her
vagina. Esa’s brother saw Tagud rape Esa. He asked his father to stop,
but Tagud just ordered him to play outside the house. Esa’s brother
followed his order in fear.
Esa reported the incident to her mother but the latter was afraid
that Tagud would hurt her if she confronted him about it. Esa then told
her employer of her ordeal. Esa filed a complaint for rape against Tagud.
The trial court convicted Tagud of rape and sentenced him to death.
On appeal, Tagud argued that he pleaded guilty only because he thought
the trial court would appreciate his admission in his favor. Had he known
that the penalty would still be death, he would have pleaded otherwise
and adduced evidence in his defense. He also questioned the credibility
of Esa’s testimony because of her minority. He further argued that it is
impossible for him to have raped his daughter in their home in the presence
of her brother.
DECISION: The Supreme Court affirmed Tagud’s conviction but reduced
the penalty to reclusion perpetua. Esa’s minority was not alleged in the
information, even though it was proven during trial.
As to the alleged defective plea of guilt, the Supreme Court ruled
that the judge conducted the required searching inquiry as to Tagud’s
voluntariness and full comprehension of his guilt. Tagud was properly
informed of the consequences of his plea, especially that a mitigating
circumstance like a plea of guilt does not operate to lower the death
penalty, which is a single indivisible penalty.
The Supreme Court agreed with the trial court that Esa’s testimony
deserves full faith and credence. Youth and immaturity are generally badges
of truth and sincerity.
Anent the alleged impossibility of committing rape, the Supreme Court
held that rape is not necessarily committed only in an isolated place, for
rapists have no respect for locale or time when they carry out their evil
deed. Rape can be committed in places where people congregate, in parks,
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along the roadside, within school premises, inside an occupied house,
and even in a room where other members of the family are also sleeping.
There is no rule or norm that a woman can only be raped in seclusion.
See People vs. Prades, G.R. No. 127569, July 30, 1998.
“L OVE
I S NOT A LICENSE FOR LUST ”
P EOPLE VS . M URALLON
G.R. NO. 85734, SEPTEMBER 13, 1990
J. REGALADO
FACTS: Joy, 15 years old, was on her way to her family’s farmhouse one
night when Murallon blocked her path and tripped her. Joy fell to the
ground. She was not able to resist Murallon because he placed himself on
top of her. With a hunting knife, Murallon threatened her not to shout or
else he would kill her. He then raped her.
Murallon was charged with rape. During trial, he alleged that Joy
was his sweetheart and that she consented to the sexual act. The trial
court convicted him of rape.
DECISION: The Supreme Court affirmed the conviction. Citing its previous
ruling in People vs. Mercado (161 SCRA 601), it declared that “(l)ove is
not a license for lust, at least upon a sweetheart only, who, unlike the
wife, has a right to resist the passionate advances of her partner.” It also
held that intimidation is sufficient for rape to be committed. The lack of
outcry on the part of the complainant is immaterial to convictions of
rape. A person at one moment may cry her heart out over her misfortune
but may be dry-eyed the next time she recalls her tragic fate.
S WEETHEART
THEORY IS NOT AN AUTOMATIC DEFENSE IN RAPE
P EOPLE VS . Y LANAN
G.R. NO.131812, AUGUST 22, 2002
J. QUISUMBING
FACTS: Barely a week after Ylanan hired Clara, a minor, as helper in his
kitchenette, Ylanan sneaked into her make-shift room. He clamped his
hand on her mouth and placed a pillow against her face, successfully
rendering her immobile. Ylanan threatened to kill her and then raped her.
Despite being shocked to inaction by such a traumatic experience, Clara
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reported the incident to the authorities the next morning. She filed a
complaint for rape against Ylanan. The trial court convicted him as charged.
DECISION: The Supreme Court affirmed the trial court’s conviction. It
junked Ylanan’s “sweetheart theory” as a “worn-out concoction” in rape
cases. It was quite unimaginable that the young Clara would have sex
with her employer barely a week after he hired her. And even if the
parties were lovers, their relationship in itself would not negate the
existence of the crime.
The Supreme Court likewise dismissed Ylanan’s claim that the
intercourse was consensual as allegedly evidenced by: (1) the absence
of injury on Clara’s body, showing that there was no force or intimidation
employed; and (2) Clara’s unnatural silence after the rape incident. Ylanan
employed force and intimidation in the form of his threat to kill Clara and
his moral ascendancy as her employer. Moreover, the absence of
hematoma or marks on the body does not preclude the existence of
rape. Proof of injuries is not indispensable in prosecutions for rape. The
Supreme Court construed Clara’s silence as an indication of Clara’s shock
and fear, recognizing that in rape cases, victims have no uniform reaction.
C REDIBILITY
AND WEIGHT OF CHILD VICTIM ’ S TESTIMONY
P EOPLE VS . R OSARIO
G.R. NO. 144428, AUGUST 6, 2003
PER CURIAM
FACTS: Rita, 15 years old, is the daughter of Rosario. Rita was asleep
when Rosario suddenly got on top of her and removed her panties.
Rosario then inserted his penis into Rita’s private parts. Rita pleaded
with Rosario to stop but the latter succeeded in raping her.
Rosario was charged with rape but he denied the same and explained
that Rita accused him because he whipped her for being hardheaded.
DECISION: The Supreme Court affirmed the conviction. It gave credence to
Rita’s straightforward, candid and convincing testimony. A rape victim’s
testimony against her own father is entitled to great weight since Filipino
children have a natural reverence and respect for their elders. The Supreme
Court, citing People vs. Mariño (G.R. Nos. 138439-41, June 25, 2001) said
that when a woman, more so if she is a minor, says she has been raped, she
says, in effect, all that is necessary to prove that rape was committed. No
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child would make up a story that her own father raped her and expose
her own family to disgrace just to free herself from a strict parent.
See People vs. Portugal, G.R. No. 143030, March 12, 2002; People vs. Andaya, 196
SCRA 660 (1991); People vs. Razonable, G.R. No. 128085, April 12, 2000; People vs.
Elizaga, G.R. No. L-38272, October 26, 1976; People vs. Dacoba, G.R. Nos. 12199596, April 20, 1998; People vs. Alib, G.R. No. 100232, May 24, 1993.
L ONE
TESTIMONY OF VICTIM MAY BE SUFFICIENT FOR A RAPE CONVICTION
P EOPLE VS . B ANELA
G.R. NO. 124973, JANUARY 18, 1999
J. MELO
FACTS: Late one night, the father of Mars, a 14-year-old girl, asked her to
get his clothes from another town. After getting the clothes, Mars passed
by a restaurant to listen to her favorite music from a jukebox. While
enjoying the music, she noticed Cereno, Banela and another man drinking
inside the restaurant. After the tune ended, Mars left the restaurant.
Mars resumed her trek home, but when she looked back, she saw
Banela and his companions trailing her. Banela’s companions grabbed her
arms while Banela covered her mouth. Mars cried and struggled with all
her might but Cereno and Banela succeeded in raping her. Banela threatened
to kill her if she reports the incident to the police. After Banela, the third
man attempted to have sexual intercourse with her but failed when several
security guards arrived at the scene. The culprits hurriedly escaped. Banela
was later charged with and convicted of rape.
DECISION: The Supreme Court affirmed the conviction. The fact that the
crime was committed in a dark place does not cast doubt on Mars’ positive
identification of the culprits. Mars was able to clearly establish that Banela
raped her because she actually saw him lie on top of her. Banela’s face
was in Mars’ full view when he covered her mouth and threatened her.
Recognition was easy since Banela was Mars’ neighbor.
In view of the intrinsic nature of the crime of rape, oftentimes the
only evidence that can be offered to prove the guilt of the perpetrator is
the testimony of the offended woman herself. Thus, her testimony, standing
alone, can be made the basis of conviction if such testimony meets the test
of credibility (People vs. Adora, 275 SCRA 441 [1997]; People vs. Ching,
240 SCRA 267 [1995]; People vs. Sanchez, 250 SCRA 14 [1995]). We
have consistently held that when a woman testifies that she has been raped,
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she says in effect all that is necessary to show that the rape has been
committed, and that if her testimony meets the test of credibility, the
accused may be convicted on the basis thereof (People vs. Adora, 275
SCRA 441 [1997]; People vs. Tabao, 240 SCRA 758 [1995]; People
vs. Segundo, 228 SCRA 691 [1993]). This is true in the instant case
where the trial court found clear, convincing, and competent physical
and testimonial evidence to support a finding of guilt beyond reasonable
doubt against Banela.
R APE
MAY BE PROVEN BY CIRCUMSTANTIAL EVIDENCE
P EOPLE VS . D ARILAY
G.R. NO. 139751-52, JANUARY 26, 2004
J. CALLEJO, SR.
FACTS: Roda, eight years old, and Amy, seven years old, were on their
way to buy dried fish when Darilay, who came from a drinking spree, hit
them with a piece of wood. The two girls fell unconscious. Darilay carried
Amy to a grassy area and left her there. When Amy regained
consciousness, she didn’t find Roda. She reported the incident to her
parents who lost no time in looking for Roda. Later, they found Roda’s
dead body naked along the river, with blood on her nose and vagina.
Darilay, then still 15 years old, was thereby charged with the crimes
of attempted murder and rape with homicide. Darilay countered that
there was no eye witness to the rape and killing of Roda. No one saw
that he killed her on occasion of or by reason of the rape. The prosecution,
on the other hand, claimed that it had adduced circumstantial evidence
to prove that Darilay raped the victim and killed her on the occasion or
by reason of the rape. The trial court convicted Darilay of attempted
murder and rape with homicide. For the latter crime, Darilay was
sentenced to reclusion perpetua.
DECISION: The Supreme Court affirmed the conviction but reduced the
penalty for rape with homicide to reclusion temporal, taking into account
Darilay’s minority. The Supreme Court agreed with Darilay that the
prosecution failed to adduce direct evidence to prove that he raped and
killed the victim. However, direct evidence is not indispensable to prove his
guilt. In this case, the prosecution proved Darilay’s guilt by circumstantial
evidence, namely: (1) Amy saw Darilay hit them with a piece of wood; (2)
Later, Roda was nowhere to be found; (3) Roda’s bloodied and torn clothes
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were found within 15 meters from where Darilay waylaid the sisters;
and (4) Darilay pointed out Roda’s dead body to the police.
Sexual Harassment
SEXUAL
HARASSMENT IS A VALID GROUND FOR TERMINATION FROM
SERVICE
V ILLARAMA VS . N ATIONAL L ABOR R ELATIONS
C OMMISSION AND G OLDEN D ONUTS , I NC .
G.R. NO. 106341, SEPTEMBER 2, 1994
J. PUNO
FACTS: Villarama, a supervisor at Golden Donuts, invited his subordinates
to dinner and a few drinks one night. He offered to bring home Vina, a
clerk-typist assigned to his department. On the way home, Villarama
attempted to bring Vina to a motel against her will. Vina resigned from
work and related this incident in her resignation letter. Acting on Vina’s
allegations, the company president called for Villarama, who agreed to
be separated from work. However, Villarama later changed his mind.
He challenged the validity of his termination and contended that the
accusations against him were unsubstantiated.
DECISION: Villarama’s termination was valid. There was substantial
evidence to prove his acts, including his letter to his employer admitting
his “error” against Vina. His acts constituted sexual harassment, which is
a valid cause for separation from service. As a managerial employee,
Villarama is bound by a more exacting work ethic. He failed to live up to
this higher standard of responsibility when he succumbed to his moral
perversity. When such moral perversity is perpetrated against his
subordinate, there is justifiable ground for his dismissal for lack of trust
and confidence.
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DELAY
I N REPORTING S E X U A L HARASSMENT
P HILIPPINE A EOLUS A UTOMOTIVE
VS . N ATIONAL L ABOR R ELATIONS
G.R. NO. 124617, APRIL 28, 2000
J. BELLOSILLO
U NITED C ORPORATION
C OMMISSION AND C ORTEZ
FACTS: Oly was a personnel manager at Philippine Aeolus. As early as
her first year of employment, her Plant Manager, William, already
manifested a special liking for her. She received special treatment from
him. Several times, William invited her on a “date,” but she refused. On
many occasions, William made sexual advances on her. He touched her
hands, placed his arms around her shoulders, ran his fingers on her arms,
and told her she looked beautiful. The special treatment and sexual
advances continued during her employment for four years but she never
reciprocated his flirtations. Finally, she noticed that William’s attitude
towards her changed. William made her understand that if she would not
give in to his sexual advances, he would cause her termination from
service. Oly just found out one day that her table containing her personal
belongings was transferred without her knowledge to a place with neither
telephone nor intercom. An argument ensued when she confronted William
about such transfer, resulting in her being charged with gross disrespect.
The company then dismissed Oly for throwing a stapler and hurling
invectives, among others, at William.
Oly filed an illegal dismissal case. She explained in her complaint
that her confrontation with William arose from her refusal to give in to
his sexual advances. The Labor Arbiter and the National Labor Relations
Commission ruled in favor of Oly. They held that Oly’s dismissal was
illegal and ordered the company to pay her moral damages. The company
elevated the case on certiorari to the Supreme Court.
DECISION: The Supreme Court declared Oly’s dismissal illegal and affirmed
the award of moral damages. It did not give merit to the company’s argument
that it is unbelievable that it took Oly four years before she reacted violently
in defense of her womanhood. The Supreme Court considered William’s
acts as sexual harassment and explained that there is no time period for
reporting such crime. The time for the victim to report abusive acts may
vary depending on the needs, circumstances, and emotional threshold of the
victim. Not many women, especially in this country, are made of the stuff
that can endure the agony and trauma of a public, even corporate, scandal.
If the company did not terminate Oly’s services, she could have held on
to her silence. Anxiety was gradual in Oly’s five-year employment.
Engendering the Philippine Judiciary
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It began when William showed an obvious partiality for her, which went
out of hand when he started to make it clear that he will terminate her
services if she will not give in to his sexual advances. Sexual harassment
is an imposition of misplaced “superiority” which is enough to dampen an
employee’s spirit in her capacity for advancement. It affects her sense of
judgment; it changes her life. If for this alone, Oly should be adequately
compensated.
A NTI -S EXUAL H ARASSMENT L AW
AS APPLIED TO JUDGES
V ELOSO VS . C AMINADE
A.M. NO. RTJ-01-1655, JULY 8, 2004
J. CORONA
FACTS: Ros was the Public Attorney’s Office lawyer assigned to the
court of Judge Caminade. One day, Judge Caminade invited her to join
him and two other lawyers in his chambers for a talk. When the other
lawyers left, Judge Caminade asked her to stay. While they were
discussing, Judge Caminade squeezed her right thigh and kissed her. She
felt disgusted and left the room. After that, she asked to be transferred
to another branch.
Nea, on the other hand, is a clerk in Judge Caminade’s court. Judge
Caminade often squeezes her hand but she just kept quiet about it. It
was only when Judge Caminade kissed her on the cheek that she requested
to be transferred to another branch.
Ros and Nea each filed an administrative complaint for sexual
harassment against Judge Caminade. Their complaints were consolidated.
Judge Caminade, in defense, explained that it is in his nature to
tease and play pranks on people he knows. His actions are his way of
showing affection and appreciation and should never be taken with malice.
DECISION: Judge Caminade’s abusive and distasteful acts constitute sexual
harassment. His acts resulted in an intimidating, hostile or offensive
environment for his female subordinates.
A position in the judiciary requires great moral righteousness.
Performing as he does an exalted role in the administration of justice, a
judge must pay a high price for the honor bestowed upon him. Thus, a
judge must comport himself at all times in such a manner that his conduct,
official or otherwise, can weather the most exacting scrutiny of the public
that looks up to him as the epitome of integrity and justice.
Engendering the Philippine Judiciary
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See Vedaña vs. Judge Valencia, Adm. Matter No. RTJ-96-1351, September 3, 1998.
W ITNESS
T O THE SEXUAL HARASSMENT I S NOT REQUIRED
D AWA VS . D E ASA
A.M. NO. MTJ-98-1144, JULY 22, 1998
PER CURIAM
FACTS: While Lyn was on her way to the restroom, she saw Judge De
Asa, talking with a man at the backdoor of his chamber. Out of respect
for Judge De Asa, she nodded to him before entering the restroom. When
she left the restroom, she saw that Judge De Asa was already alone at
the backdoor of his office. Upon seeing her, Judge De Asa casually asked
her if the toilet was clean. She answered that it was dirty. Judge De Asa
called her and she approached him. When she was already near him,
Judge De Asa placed his arm on her shoulder and led her into his chamber.
There, Judge De Asa placed his arm around her shoulder. Suddenly, he
held her jaw and kissed her lips.
Lyn was taken by surprise and shocked. But before she could
recover, Judge De Asa once again held her shoulder and her chin, and
kissed her on the lips. She forcibly pushed him away. Judge De Asa
asked her where and with whom she lived but she hurriedly left his office.
Together with other court personnel, whom Judge De Asa also
sexually harassed, Lyn filed a complaint for sexual harassment against
Judge De Asa.
DECISION: The Supreme Court found Judge De Asa guilty of sexual
harassment and dismissed him from service. “There is sufficient evidence
to create a moral certainty that respondent committed the acts he is
charged with. The testimonies of the three complainants were not in any
manner emasculated by the lengthy and thorough cross examination
personally conducted by the respondent.”
Further, Judge De Asa has not proven any vicious motive for
complainants to invent their stories. It is highly improbable that the three
complainants would perjure themselves only to accommodate the Clerk
of Court who assisted the complainants in filing the case and who may
have had some real or imagined resentment against him. Moreover, Judge
De Asa’s allegation that the Clerk of Court had a grudge against him is too
superficial to genuinely cause such malevolence. It was not Judge de Asa
Engendering the Philippine Judiciary
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but another judge who insisted on the relocation of said Clerk of Court
to another office.
The negative observations of Judge De Asa’s witnesses do not
belie the complainants’ declarations. His witnesses merely attested that
they did not see him do anything obscene to the complainants nor to
others. This, however, is not proof that lewd acts did not occur, especially
so because they were all done in the privacy of Judge De Asa’s chambers.
Acts of Lasciviousness
D E L A C RUZ ET AL. VS. J UDGE CONCEPCION
A.M. NO. RTJ-93-1062, AUGUST 25, 1994
J. BELLOSILLO
FACTS: Judge Concepcion was administratively charged with gross
ignorance of the law and knowingly rendering an unjust judgment for
acquitting accused Estella of the crime of acts of lasciviousness. Estella,
a volleyball coach was charged with the said crime for touching the pubic
hair of his two 12-year-old students. Judge Concepcion accepted Estella’s
defense that his act was in accordance with an order of the Ministry of
Education Culture and Sports (MECS) which states that coaches may
check the presence of pubic hair in their students to ensure that the
players are below 13 years old. Judge Concepcion held that lewd designs
cannot be imputed against Estella as he was acting pursuant to a valid
order and touched only the pubic hair, and not the inner private parts nor
the breasts of the students. The students who reluctantly obeyed Estella’s
orders, however, reported that while Estella was stroking their private
parts several times, lasting for about five minutes each time, he appeared
elated with his eyes wide open in wild excitement.
DECISION: Judge Concepcion was absolved from the administrative charges.
The Supreme Court held that there was no law of which the judge was
ignorant and that any error in judgment is not tantamount to knowingly
rendering an unjust judgment, absent malicious intent. The Supreme Court
upheld Judge Concepcion’s decision of acquitting Estella. Lewd design cannot
be presumed and must be inferred from the surrounding circumstances.
Engendering the Philippine Judiciary
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Estella cannot be presumed to have lewd designs when he merely
followed the MECS Order.
J. R OMERO ,
DISSENTING :
Justice Romero, however, dissented and opined that Estella should
have been held guilty of acts of lasciviousness, thus:
The judge himself, in his decision dated January 8, 1993,
admitted that “touching the girls’ private parts was a repulsive way
of following the silly MEC guideline of determining the age
qualification of prospective athletes” for the girls’ volleyball team.
Indeed, is there no other, and certainly less “repulsive” way of
gauging the fitness of an aspiring athlete than the tactile?
Moreover, the respondent judge, in his attempt to disprove
any lewd designs on the part of the accused, stated: “Added to this,
as already noted, is the fact that he did not touch any of the girls on
any other part of her body, like her chest for example, to find out
if she already had enlarged breasts.” After having invaded the
most private, nay, the most sacred part of a girl’s body, any other
molestation pales into insignificance.
To my mind, any teacher who uses administrative guidelines
of the Ministry of Education as an excuse to satisfy his lust and
inflict his lecherousness on innocent girls deserves strong
condemnation from any judge worth the robe he dons and who is
regarded in the community as an upright, moral and just man.
That another case was brought against the accused on a similar
charge of acts of lasciviousness on another female aspirant to the
track and field team, even if another misguided judge saw fit to
deliver a judgment of acquittal, is strongly indicative of the propensity
of said accused to take advantage of chaste girls under his charge.
Such morally perverse officials from whom the public would expect
a higher standard of morality inasmuch as they stand as guardians of
young girls in loco parentis in the school premises should have received
more than just a figurative slap on the wrist (in this case moral
damages), from respondent judge. The latter had the opportunity to
mete out a penalty cum a resounding reminder on the accused with
respect to his moral responsibilities as a teacher. Sad to say, he passed
up this opportunity. Who is to say who is the worse transgressor, the
offender himself or the one who by virtue of his position of authority
could have induced the former to henceforth tread the path of
rectitude? We can only lament the fact that both share the same lax
moral standards to the detriment of the present and future crop of
prospective virginal athletes. The judiciary would undoubtedly
Engendering the Philippine Judiciary
134
be better off minus one judge of the questionable moral scruples
of respondent.
Anti-Child Abuse Law
(Republic Act No. 7610)
P EOPLE VS . L ARIN
G.R. NO. 128777, OCTOBER 7, 1998
J. PANGANIBAN
FACTS: Larin, a lifeguard at the university swimming pool, acted as the
trainor/swimming instructor of 14-year-old Gemma. Larin, shaved
Gemma’s pubic hair because the same shows whenever Gemma wears
her swimsuit. After shaving Gemma’s private parts, Larin licked her vagina
and breasts. He forced her to hold and squeeze his penis, and forcibly
kissed her on the cheeks and lips.
Gemma, assisted by her parents, filed a complaint against Larin for
taking advantage of his authority and moral ascendancy over her and
committing lascivious acts on her person, based on Republic Act No.
7610 or the Anti-Child Abuse Law. Larin denied the accusation. He
argued that there was no proof or allegation that he indulged in lascivious
conduct “for money, profit or consideration” or that he coerced or
influenced Gemma to indulge in lascivious conduct.
Larin questioned the credibility of Gemma. He further argued that
the penalty under the Anti-Child Abuse Law only covers victims who are
12 years old and below. Hence, he insisted that the applicable penalty in
his case is that found in the Revised Penal Code for acts of lasciviousness.
The trial court, however, convicted Larin of violation of Section 5(b)
of the Anti-Child Abuse Law. It sentenced him to suffer the penalty of
reclusion perpetua and to indemnify the victim P100, 000 as moral damages.
DECISION: The Supreme Court affirmed the conviction but reduced the
award of moral damages to P50,000 in view of prevailing jurisprudence.
The Supreme Court upheld the credibility of Gemma’s testimony.
Gemma’s testimony was given in a straightforward, categorical, and candid
manner worthy of faith and belief. The trial court’s evaluation of the credibility
Engendering the Philippine Judiciary
135
of a witness is entitled to the highest degree of respect. The defense
failed to prove any ill motive on Gemma’s part.
Larin’s acts cannot be interpreted in any other light other than
manifesting sexual perversity and lewd intentions. His acts constitute
lascivious conduct as defined by the Anti-Child Abuse Law. As to
Gemma’s alleged submissiveness, the Supreme Court explained that such
cannot exonerate Larin from criminal responsibility in view of the existence
of moral coercion or ascendancy.
As to the applicability of the Anti-Child Abuse Law, the Supreme
Court ruled that said law does not confine its protection to those below
12 years old, but protects all children, i.e., persons below 18 years old.
O LIVAREZ VS . C OURT OF A PPEALS
G.R. NO. 163866, JULY 29, 2005
J. YNARES-SANTIAGO
FACTS: BJ was a 16-year-old high school student. Sixty-year-old Olivarez
employed BJ and her brothers in making sampaguita garlands at his
residence every weekend. One morning, Olivarez asked BJ if she told
her mother that he gave her money. When she said that she did not, he
embraced her and held her breast. Thereafter, Olivarez pulled BJ to the
kitchen. He closed the kitchen door and kissed BJ on the lips. BJ pushed
him away and went back to her station. BJ’s brother saw her crying
when she came out of the house. She did not say a word, but went to
the faucet and washed her face.
Upon being charged, the trial court held Olivarez guilty of violating
Section 5 of the Anti-Child Abuse Law. The Court of Appeals affirmed
the decision of the lower court. Olivarez, however, alleged on appeal
that his right to be informed of the nature and cause of the accusation
against him was violated since the information failed to state essential
elements of the crime he allegedly transgressed.
DECISION: The Supreme Court upheld the Court of Appeals’ decision
and convicted Olivarez. The elements of sexual abuse under Section 5,
Article III of The Anti-Child Abuse Law are as follows: (1) the accused
commits the act of sexual intercourse or lascivious conduct; (2) said act
is performed with a child exploited in prostitution or subjected to other
sexual abuse; and (3) the child, whether male or female, is below 18
years of age. Section 32, Article XIII, of the Implementing Rules and
Regulations of said law defines lascivious conduct to wit:
Engendering the Philippine Judiciary
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[T]he intentional touching, either directly or through clothing,
of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the
introduction of any object into the genitalia, anus or mouth, of any
person, whether of the same or opposite sex, with an intent to
abuse, humiliate, harass, degrade, or arouse or gratify the sexual
desire of any person, bestiality, masturbation, lascivious exhibition
of the genitals or pubic area of a person.
All the aforesaid elements of sexual abuse are present in this case.
It was established beyond reasonable doubt that Olivarez kissed BJ and
touched her breasts with lewd designs as inferred from the nature of the
acts themselves and the surrounding circumstances. It is inconsequential
that the sexual abuse occurred only once. As expressly provided in Section
3 (b) of The Anti-Child Abuse Law, abuse may be habitual or not. Article
III of said law is captioned as “Child Prostitution and Other Sexual Abuse”
because Congress really intended to cover a situation where the minor
may have been coerced or intimidated into lascivious conduct, not
necessarily for money or profit. The law covers not only child prostitution
but also other forms of sexual abuse.
The Supreme Court dismissed Olivarez’s contention that the
information was insufficient and that he was deprived of his right to be
informed of the nature and cause of the accusation against him. The
missing averment in the information was supplied by the complaint, a
copy of which was given to Olivarez. Thus, the alleged defect in the
information was effectively cured. Moreover, although the information
did refer to specific sections of the law, the body of the information
contained an averment of the acts alleged to have been performed by
Olivarez which unmistakably refers to acts punishable under Section 5 of
The Anti-Child Abuse Law. The section violated is inconsequential. What
is determinative of the offense is the recital of the ultimate facts and
circumstances in the complaint or information.
Engendering the Philippine Judiciary
137
Labor
CEDAW
AS BASIS FOR
P HILIPPINE
LABOR LAWS ON GENDER EQUALITY
P HILIPPINE T ELEGRAPH AND T ELEPHONE C OMPANY
VS . N ATIONAL L ABOR R ELATIONS C OMMISSION AND D E G UZMAN
G.R. NO. 118978, MAY 23, 1997
J. REGALADO
F ACTS: PT&T hired De Guzman as a reliever. In the employment
application form, De Guzman indicated that she was single although she
had contracted marriage months earlier. PT&T had a policy of not
accepting married women for employment. Hence, when PT&T
discovered that she was married, it terminated De Guzman on ground of
dishonesty, i.e., for concealing her true civil status. De Guzman challenged
her dismissal as illegal as it was solely due to her marriage.
DECISION: De Guzman was illegally dismissed. The company’s policy of
not accepting married women for employment contravenes the Article 138
of the Labor Code which prohibits stipulations against marriage. In upholding
the right of de Guzman as a woman worker, the Supreme Court explained:
1. Decreed in the Bible itself is the universal norm that
women should be regarded with love and respect but,
through the ages, men have responded to that injunction
with indifference, on the hubristic conceit that women
constitute the inferior sex. Nowhere has that prejudice
against womankind been so pervasive as in the field of
labor, especially on the matter of equal employment
opportunities and standards. In the Philippine setting,
women have traditionally been considered as falling within
the vulnerable groups or types of workers who must be
safeguarded with preventive and remedial social
legislation against discriminatory and exploitative practices
in hiring, training, benefits, promotion and retention.
The Constitution, cognizant of the disparity in rights
between men and women in almost all phases of social
and political life, provides a gamut of protective provisions.
To cite a few of the primordial ones, Section 14, Article II
on the Declaration of Principles and State Policies,
expressly recognizes the role of women in nation-
Engendering the Philippine Judiciary
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building and commands the State to ensure, at all times,
the fundamental equality before the law of women and
men. Corollary thereto, Section 3 of Article XIII (the
progenitor whereof dates back to both the 1935 and
1973 Constitution) pointedly requires the State to afford
full protection to labor and to promote full employment
and equality of employment opportunities for all, including
an assurance of entitlement to tenurial security of all
workers. Similarly, Section 14 of Article XIII mandates
that the State shall protect working women through
provisions for opportunities that would enable them to
reach their full potential.
2. Corrective labor and social laws on gender inequality
have emerged with more frequency in the years since
the Labor Code was enacted on May 1, 1974 as
Presidential Decree No. 442, largely due to our country’s
commitment as a signatory to the United Nations
Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW).
Principal among these laws are Republic Act No.
6727, which explicitly prohibits discrimination against
women with respect to terms and conditions of
employment, promotion, and training opportunities;
Republic Act No. 6955 which bans the “mail-order-bride”
practice for a fee and the export of female labor to
countries that cannot guarantee protection to the rights of
women workers; Republic Act No. 7192, also known as
the “Women in Development and Nation Building Act,”
which affords women equal opportunities with men to act
and to enter into contracts, and for appointment,
admission, training, graduation, and commissioning in
all military or similar schools of the Armed Forces of the
Philippines and the Philippine National Police; Republic
Act No. 7322 increasing the maternity benefits granted
to women in the private sector; Republic Act No. 7877,
which outlaws and punishes sexual harassment in the
workplace and in the education and training environment;
and Republic Act No. 8042, or the ”Migrant Workers
and Overseas Filipinos Act of 1995,” which prescribes
as a matter of policy, inter alia, the deployment of migrant
workers, with emphasis on women, only in countries
where their rights are secure. Likewise, it would not be
amiss to point out that in the Family Code, women’s rights
in the field of civil law have been greatly enhanced and
expanded.
Engendering the Philippine Judiciary
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In the Labor Code, provisions governing the rights of
women workers are found in Articles 130 to 138 thereof.
Article 130 involves the right against particular kinds of
night work while Article 132 ensures the right of women
to be provided with facilities and standards which the
Secretary of Labor may establish to ensure their health
and safety. For purposes of labor and social legislation, a
woman working in a nightclub, cocktail lounge, massage
clinic, bar or other similar establishments shall be
considered as an employee under Article 138. Article
135, on the other hand, recognizes a woman’s right
against discrimination with respect to terms and conditions
of employment on account simply of sex. Finally, and this
brings us to the issue at hand, Article 136 explicitly
prohibits discrimination merely by reason of the marriage
of a female employee.
xxx
xxx
xxx
In the case at bar, petitioner’s policy of not accepting
or considering as disqualified from work any woman
worker who contracts marriage runs afoul of the test of,
and the right against, discrimination, afforded all women
workers by our labor laws and by no less than the
Constitution. Contrary to petitioner’s assertion that it
dismissed private respondent from employment on
account of her dishonesty, the record discloses clearly
that her ties with the company were dissolved principally
because of the company’s policy that married women
are not qualified for employment in PT&T, and not merely
because of her supposed acts of dishonesty.”
Engendering the Philippine Judiciary
140
Other Decisions
R IGHT
TO PROPERTY
M AXEY VS . C OURT OF A PPEALS
G.R. NO. L-45870, MAY 11, 1984
J. GUTIERREZ, JR.
FACTS: Melbourne and Regina lived together as husband and wife starting
1903. They begot six children. During their cohabitation, Melbourne
purchased certain parcels of land. In 1919, Melbourne and Regina were
legally married. When Regina died, however, Melbourne married Julia
who sold the parcels of land as his attorney-in-fact. Melbourne and
Regina’s children thereafter claimed their share in the land sold by Julia,
arguing that the said parcels were common properties of their parents,
having been acquired during their lifetime and through their joint effort
and capital, and that the sale was made without their consent.
The trial court nullified the sale because the subject properties were
commonly owned by Melbourne and Regina. The Court of Appeals,
however, overturned such ruling as it found Melbourne to be the exclusive
owner of the parcels of land. The Court of Appeals held that it was
through Melbourne’s efforts alone that these properties were acquired
since Regina, a housewife, had no means at all to have contributed in any
manner to all its acquisition.
DECISION: The Supreme Court reversed the Court of Appeal’s ruling as
regards one-half of the properties sold and ordered that said one-half
portion be returned to Regina’s heirs. It considered Regina as co-owner
of the properties acquired during her cohabitation with Melbourne,
recognizing her contribution as homemaker, even if she did not give any
financial contribution in the purchase of the properties.
The Supreme Court retroactively applied Article 144 of the Civil
Code which
... recognizes that it would be unjust and abnormal if a woman
who is a wife in all aspects of the relationship except for the
requirement of a valid marriage must abandon her home and
children, neglect her traditional household duties, and go out to
Engendering the Philippine Judiciary
141
earn a living or engage in business before the rules on coownership would apply. … The provisions of the Civil Code are
premised on the traditional and existing, the normal and customary
gender roles of Filipino men and women. No matter how large
the income of a working wife compared to that of her husband,
the major, if not the full responsibility of running the household
remains with the woman. She is the administrator of the household.
The fact that the two involved in this case were not legally married
at the time does not change the nature of their respective roles. It
is the woman who traditionally holds the family purse even if she
does not contribute to filling that purse with funds. As pointed out
by Dean Irene R. Cortes of the University of the Philippines, “in
the Filipino family, the wife holds the purse, husbands hand over
their pay checks and get an allowance in return and the wife
manages the affairs of the household. x x x” And the famous
statement attributed to Governor General Leonard Wood is
repeated: In the Philippines, the best man is the woman.” (Cortes,
“Women’s Rights Under the New Constitution.” Woman and the
Law, UP Law Center, p. 10)
The “real contribution” to the acquisition of property mentioned
in Yaptinchay vs. Torres (28 SCRA 489) must include not only the
earnings of a woman from a profession, occupation, or business
but also her contribution to the family’s material and spiritual good
through caring for the children, administering the household,
husbanding scarce resources, freeing her husband from household
tasks, and otherwise performing the traditional duties of a
housewife.
R IGHT
TO DOMICILE OF A WIFE
R OMUALDEZ -M ARCOS V S . C OMMISSION
E LECTIONS AND R OY M ONTEJO
G.R. NO. 119976, SEPTEMBER 18, 1995
J. KAPUNAN
ON
F ACTS : Respondent Montejo questioned Marcos’ candidacy as
representative of the first district of Leyte on the ground that she is not
a resident thereof as required by the Constitution. Montejo contended
that Tacloban was not Marcos’ domicile of origin because she did not
live there until she was eight years old. Moreover, Marcos resided and
used to be a registered voter in San Juan and in Manila.
Engendering the Philippine Judiciary
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D ECISION: Marcos is domiciled in Tacloban, hence she meets the
Constitutional requirement on residency. Residence and domicile are
synonymous in election law. Mere absence of an individual from his
permanent residence without the intention to abandon it does not result
in a loss or change of domicile. Also, when she married the former
President in 1954, she kept her domicile of origin and merely gained a
new home, not a domicilium necessarium. The Supreme Court held that
even the matter of a common residence between the husband and the
wife during the marriage is not an iron-clad principle. In cases applying
the Civil Code on the question of a common matrimonial residence, our
jurisprudence has recognized certain situations where the spouses could
not be compelled to live with each other such that the wife is either
allowed to maintain a residence different from that of her husband or,
for obviously practical reasons, revert to her original domicile (apart
from being allowed to opt for a new one). In De la Vina vs. Villareal (41
Phil. 13 [1920]), “[a] married woman may acquire a residence or domicile
separate from that of her husband during the existence of the marriage
where the husband has given cause for divorce.” Note that the Supreme
Court allowed the wife either to obtain new residence or to choose a
new domicile in such an event. In instances where the wife actually opts,
under the Civil Code, to live separately from her husband either by taking
new residence or reverting to her domicile of origin, the wife could not
be compelled to live with her husband on pain of contempt. In Arroyo
vs. Vasques de Arroyo (42 Phil. 54 [1921]) the Court held that “that it
is not within the province of the courts at this country to attempt to
compel one of the spouses to cohabit with, and render conjugal rights to
the other.”
J. P UNO ,
CONCURRING OPINION :
Justice Puno concurred that Marcos is a resident of the district
where she was running. He reasoned that Marcos reacquired her domicile
in Tacloban upon her husband’s death. He explained this position in the
light of Marcos’ rights as a woman, to wit:
Taking the lead in Asia, our government exerted efforts,
principally through legislations, to eliminate inequality between men
and women in our land. The watershed came on August 3, 1988
when our Family Code took effect which, among others, terminated
the unequal treatment of husband and wife as to their rights and
responsibilities.
Engendering the Philippine Judiciary
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The Family Code attained this elusive objective by giving new
rights to married women and by abolishing sex-based privileges of
husbands. Among others, married women are now given the joint
right to administer the family property, whether in the absolute
community system or in the system of conjugal partnership; joint
parental authority over their minor children, both over their persons
as well as their properties; joint responsibility for the support of the
family; the right to jointly manage the household; and, the right to
object to their husband’s exercise of profession, occupation, business
or activity. Of particular relevance to the case at bench is Article
69 of the Family Code, which took away the exclusive right of the
husband to fix the family domicile and gave it jointly to the husband
and the wife …
xxx
xxx
xxx
In light of the Family Code which abrogated the inequality
between husband and wife as started and perpetuated by the
common law, there is no reason in espousing the anomalous rule
that the wife still retains the domicile of her dead husband.
xxx
xxx
xxx
Aside from reckoning with the Family Code, we have to consider
our Constitution and its firm guarantees of due process and equal
protection of law. It can hardly be doubted that the common law
imposition on a married woman of her dead husband’s domicile
even beyond his grave is patently discriminatory to women. It is a
gender-based discrimination and is not rationally related to the
objective of promoting family solidarity. It cannot survive a
constitutional challenge. Indeed, compared with our previous
fundamental laws, the 1987 Constitution is more concerned with
equality between sexes as it explicitly commands that the state “...
shall ensure fundamental equality before the law of women and
men.” To be exact, Section 14, Article II provides: “The State
recognizes the role of women in nation building, and shall ensure
fundamental equality before the law of women and men.” We
shall be transgressing the sense and essence of this constitutional
mandate if we insist on giving our women the caveman’s treatment.
Prescinding from these premises, I respectfully submit that the
better stance is to rule that petitioner reacquired her Tacloban
domicile upon the death of her husband in 1989. x x x x x x x x
x The law disabling her to choose her own domicile has been
repealed. Considering all these, common law should not put the
burden on petitioner to prove she has abandoned her dead
husband’s domicile There is neither rhyme nor reason for this
gender-based burden.
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J. R OMERO ,
CONCURRING OPINION :
Justice Romero, on the other hand, penned a separate opinion
maintaining that a widow, like Marcos and others similarly situated, can
no longer be bound by the domicile of the departed husband, if at all she
was before. Her opinion was based on the social, civil and political rights
of women embodied in no less than the Convention on the Elimination of
All Forms of Discrimination Against Women (CEDAW), thus:
It is bad enough to interpret the law as empowering the husband
unilaterally to fix the residence or domicile of the family, as laid
down in the Civil Code, but to continue giving obeisance to his
wishes even after the rationale underlying the mutual duty of the
spouses to live together has ceased, is to close one’s eyes to the
stark realities of the present.
xxx
xxx
xxx
Admittedly, the notion of placing women an par with men,
insofar as civil, political, and social rights are concerned, is a
relatively recent phenomenon that took seed only in the middle of
this century. It is a historical fact that for over three centuries, the
Philippines had been colonized by Spain, a conservative Catholic
country, which transplanted to our shores the Old World culture,
mores, attitudes and values through the imposition on our
government of the Spanish Civil Code in 1889. The people, both
men and women, had no choice but to accept such concepts as
the husband’s being the head of the family and the wife’s
subordination to his authority. In such role, his was the right to
make vital decisions for the family. Many instances easily come to
mind, foremost being what is related to the issue before us, namely,
that the husband shall fix the residence of the family. Because he
is made responsible for the support of the wife and the rest of the
family, he is also empowered to be the administrator of the conjugal
property, with a few exceptions and may, therefore, dispose of
the conjugal partnership property for purposes specified under
the law; whereas, as a general rule, the wife cannot bind the
conjugal partnership without the husband’s consent. As regards
the property pertaining to the children under parental authority,
the father is the legal administrator and only in his absence may
the mother assume his powers. Demeaning to the wife’s dignity
are certain strictures on her personal freedoms, practically
relegating her to the position of minors and disabled persons. To
illustrate a few: The wife cannot, without the husband’s consent,
acquire any property by gratuitous title, except from her ascendants,
descendants, parents-in-law, and collateral relatives within the
fourth degree. With respect to her employment, the husband wields
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a veto power in the case the wife exercises her profession or
occupation or engages in business, provided his income is sufficient
for the family, according to its social standing and his opposition is
founded on serious and valid grounds. Most offensive, if not
repulsive, to the liberal minded is the effective prohibition upon a
widow to get married till after three hundred days following the
death of her husband, unless in the meantime, she has given birth
to a child. The mother who contracts a subsequent marriage loses
the parental authority over her children, unless the deceased
husband, father of the latter, has expressly provided in his will that
his widow might marry again, and has ordered that in such case
she should keep and exercise parental authority over their children.
Again, an instance of a husband’s overarching influence from
beyond the grave.
All these indignities and disabilities suffered by Filipino wives
for hundreds of years evoked no protest from them until the concept
of human rights and equality between and among nations and
individuals found hospitable lodgment in the United Nations Charter
of which the Philippines was one of the original signatories. By
then, the Spanish “conquistadores” had been overthrown by the
American forces at the turn of the century. The bedrock of the U.N.
Charter was firmly anchored on this credo: “to reaffirm faith in
fundamental human rights, in the dignity and worth of the human
person, in the equal rights of men and women.”
It took over thirty years before these egalitarian doctrines bore
fruit, owing largely to the burgeoning of the feminist movement.
What may be regarded as the international bill of rights for women
was implanted in the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW) adopted by the U.N.
General Assembly which entered into force as an international
treaty on September 3, 1981. In ratifying the instrument, the
Philippines bound itself to implement its liberating spirit and letter,
for its Constitution, no less, declared that “The Philippines ... 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.” One such
principle embodied in CEDAW is granting to men and women “the
same rights with regard to the law relating to the movement of
persons and the freedom to choose their residence and domicile.”
CEDAW’s pro-women orientation, which was not lost on
Filipino women, was reflected in the 1987 Constitution of the
Philippines and later, in the Family Code, both of which were
speedily approved by the first lady president of the country, Corazon
C. Aquino. Notable for its emphasis on the human rights of all
individuals and its bias for equality between the sexes are the
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following provisions: “The State values the dignity of every human
person and guarantees full respect for human rights” and “The
State recognizes the role of women in nation-building, and shall
ensure the fundamental equality before the law of women and
men.”
A major accomplishment of women in their quest for equality
with men and the elimination of discriminatory provisions of law
was the deletion in the Family Code of almost all of the unreasonable
strictures on wives and the grant to them of personal rights equal to
that of their husbands. Specifically, the husband and wife are now
given the right jointly to fix the family domicile; concomitant to the
spouses’ being jointly responsible for the support of the family is
the right and duty of both spouses to manage the household; the
administration and the enjoyment of the community property shall
belong to both spouses jointly; the father and mother shall now
jointly exercise legal guardianship over the property of their
unemancipated common child and several others.
Aware of the hiatus and continuing gaps in the law, insofar as
women’s rights are concerned, Congress passed a law popularly
known as “Women in Development and Nation Building Act.” Among
the rights given to married women evidencing their capacity to act
in contracts equal to that of men are:
(1) Women shall have the capacity to borrow and obtain loans
and execute security and credit arrangements under the
same conditions as men;
(2) Women shall have equal access to all government and
private sector programs granting agricultural credit, loans
and non material resources and shall enjoy equal
treatment in agrarian reform and land resettlement
programs;
(3) Women shall have equal rights to act as incorporators
and enter into insurance contracts; and
(4) Married women shall have rights equal to those of married
men in applying for passports, secure visas and other
travel documents, without need to secure the consent of
their spouses.
As the world draws the curtain on the Fourth World Conference
of Women in Beijing, let this Court now be the first to respond to its
clarion call that ”Women’s Rights Are Human Rights” and that “All
obstacles to women’s full participation in decision-making at all
levels, including the family” should be removed. Having been
herself a member of the Philippine Delegation to the International
Women’s Year Conference in Mexico in 1975, this writer is only
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too keenly aware of the unremitting struggle being waged by women
the world over, Filipino women not excluded, to be accepted as
equals of men and to tear down the walls of discrimination that
hold them back from their proper places under the sun.
In light of the inexorable sweep of events, local and global,
legislative, executive and judicial, according more rights to women
hitherto denied them and eliminating whatever pockets of
discrimination still exist in their civil, political and social life, can it
still be insisted that widows are not at liberty to choose their domicile
upon the death of their husbands but must retain the same,
regardless?
B ATTERED
WOMAN SYNDROME
P EOPLE VS . G ENOSA
G.R. NO. 13591, JANUARY 15, 2004
J. PANGANIBAN
FACTS: Pat’s husband, who was a habitual drinker, had been beating her
on several occasions. One night, Pat’s husband came home drunk. He
was irate at the fact that earlier that evening, Pat went to search for him.
He hit her and attempted to strangle her despite her pregnancy. Pat ran
to the other room to escape her husband’s wrath. That evening, Pat
proceeded to pack her husband’s belongings. Upon seeing the packed
clothes, Pat’s husband assaulted her. As Pat’s husband attempted to
wield a blade cutter on her, Pat smashed a pipe at her husband’s nape.
Later, Pat shot her husband while he was sleeping with a gun which she
got from the drawer in their room.
Pat was convicted of parricide for killing her husband while he was
sleeping. The trial court sentenced her to death. On appeal, Pat admitted
killing her husband but prayed for acquittal on the ground that she suffered
from the “battered woman syndrome” (BWS), which constitutes selfdefense.
DECISION: The Supreme Court found the appeal to be partly meritorious.
It affirmed Pat’s conviction of parricide, but reduced the penalty imposed
after appreciating two mitigating circumstances, without any aggravating
circumstance. Since Pat had been detained for more than the minimum
penalty, the Supreme Court suggested that the director of the Bureau of
Corrections look into the possibility of placing Pat on parole.
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The Supreme Court noted the novel concept of BWS in our
jurisprudence. The existence of the BWS in a relationship does not itself
establish the legal right of the woman to kill her abusive partner. “Evidence
must still be considered in the context of self-defense.” The Court stated
that “crucial to the BWS defense is the state of mind of the battered
woman at the time of the offense—she must have actually feared
imminent harm from her batterer and honestly believed in the need to kill
him to save her life.” In this case, Pat explained that her husband was
about to cause her and her unborn baby imminent harm. To this the
Supreme Court replied that “unlawful aggression is the most essential
element of self-defense, [that] it presupposes actual, sudden and
unexpected attack—or imminent danger thereof—on the life of the
person.” In Pat’s case, there was sufficient time interval between her
husband’s unlawful aggression and her fatal attack on him. The unlawful
aggression or the imminent threat has accordingly ceased. “[A]ggression,
if not continuous, does not warrant self-defense.” Hence, without such
aggression, Pat’s killing of her husband was not completely justified.
The Supreme Court, however, qualified that it is not discounting
the possibility of self-defense as a result of the battered woman syndrome.
It referred to a definition of battered woman as “one who is repeatedly
subjected to any forceful physical or psychological behavior by a man in
order to coerce her to do something he wants her to do without concern
for her rights. Battered women include wives or women in any form of
intimate relationship with men. Furthermore, in order to be classified as
battered woman, the couple must go through the cycle at least twice.
Any woman may find herself in an abusive relationship with a man once.
If it occurs a second time, and she remains in the situation, she is defined
as a battered woman.”
The Supreme Court summed up the main points vis-à-vis cases
relating to BWS, as follows:
[F]irst, each of the phases of the cycle of violence must be
proven to have characterized at least two battering episodes
between the appellant and her intimate partner. Second, the final
acute battering episode preceding the killing of the batterer must
have produced in the battered person’s mind an actual fear of an
imminent harm from her batterer and an honest belief that she
needed to use force in order to save her life. Third, at the time of
the killing, the batterer must have posed probable—not necessarily
immediate and actual—grave harm to the accused, based on a
history of violence perpetrated by the former against the latter.
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Taken together, these circumstances could satisfy the requisites of
self-defense.
Unfortunately, in this case, the Supreme Court found that all these
elements were not duly established.
DNA
TESTING
P EOPLE VS . A LBA
G.R. NO. 148220, JUNE 15, 2005
J. CARPIO
FACTS: Jon was 13 years old when he, represented by his mother, filed a
petition for compulsory recognition, support and damages against Alba.
Alba denied that he is the father of Jon. He claimed that he never had
any physical contact with Jon’s mother. Jon, thus, filed a motion to subject
Alba to DNA paternity testing. Alba opposed. He contended that DNA
testing has not gained acceptability in court and that such procedure
violates his right against self-incrimination. The trial court granted Jon’s
motion to conduct DNA paternity testing. On appeal, the Court of
Appeals affirmed the questioned order of the trial court.
DECISION: The Supreme Court affirmed the decision of the Court of
Appeals, allowing DNA testing. It explained that the purpose of filiation
proceedings is not just to determine paternity, but also to establish the
legal relations associated with paternity such as citizenship, support or
inheritance. The burden of proving paternity is on the person who alleges
that the putative father is the biological sire of the child. Accordingly,
there are four significant procedural aspects of a traditional paternity
action, namely: (1) a prima facie case, (2) affirmative defenses, (3)
presumption of legitimacy, and (4) physical resemblance between the
putative father and child. The trial court found three of the four aspects
present in this case. Jon’s mother put forward a prima facie case when
she asserted that Alba is Jon’s biological father. She corroborated her
assertion with proof in the form of letters and pictures. Although Alba
insisted that Jon is his mother’s child with another man, Jon’s mother
presented pictures of Alba and Jon side by side to show their resemblance.
On the matter of admissibility of DNA analysis as evidence, the
Supreme Court cited the case of People vs. Vallejo (G.R. No. 144656,
May 9, 2002), where it discussed the probative value of DNA evidence
and established the validity of the use of DNA analysis as evidence. It also
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noted that the issue has evolved from “according official recognition” to
DNA testing to the issue of procedures that must be observed in conducting
DNA analysis. Citing the Vallejo case, the Supreme Court held that:
In assessing the probative value of DNA evidence, the courts
should consider …: how the samples were collected, how they
were handled, the possibility of contamination of the samples, the
procedure followed in analyzing the samples, whether the proper
standards, and procedures were followed in conducting the tests,
and the qualification of the analyst who conducted the tests.
The Supreme Court also explained that despite the liberal rules on
admissibility, trial courts should exercise caution in giving credence to
DNA analysis as evidence. “[I]t is not enough … that the child’s DNA
profile matches that of the putative father.” That while the DNA test
results may show a 99.9% match, this only creates a refutable presumption
of paternity. The aforesaid Vallejo standards must still be met. DNA
results are conclusive as to non-paternity, but not paternity.
On the matter of Alba’s right against self-incrimination, the Supreme
Court reiterated the rule that the cited constitutional privilege is applicable
only to testimonial evidence—that “the right against self-incrimination is
just a prohibition on the use of physical or moral compulsion to extort
communication (testimonial evidence) from a defendant, not an exclusion
of evidence taken from his body … .”
USE
OF SEXIST AND VULGAR LANGUAGE
H ADAP VS . L EE
G.R. NO. 1665, JUNE 29, 1982
J. CONCEPCION, JR.
FACTS: Judge Lee, a Municipal Trial Court judge, was administratively
charged for dishonesty and conduct unbecoming a judge, partiality in the
administration of justice, using prisoners/detained persons for personal
purposes, using his residence as Municipal Judge’s, habitual use of vulgar
and obscene words and phrases, and willful refusal to attend regular flag
ceremonies. Anent the charge of habitual use of vulgar words and phrases
in courts, complainants alleged that Judge Lee used lewd words in
promulgating a judgment in a rape case. He has also been advising newly
weds in his court about sex. In one marriage ceremony, he even said,
“You woman, you should satisfy sexually your husband otherwise your
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husband will look for another woman because the husband is sexually
hot (oragon) and you man, you should continuously satisfy your wife
otherwise your wife will look for another man.”
In defense, Judge Lee explained that in the rape case before his
sala, he merely translated in Bicolano the Order of Dismissal (as the
accused did not understand English), which necessarily and unavoidably
contained words about sexual intercourse. He qualified that he did not
make the translation in a vulgar manner as portrayed by complainant. He
further denied enjoying the use of vulgar words in solemnizing marriages.
He admitted that whenever he solemnizes marriage, he lectures to the
newly weds about sex, explaining that vasectomy, as part of family
planning, does not affect the sexual desire and performance of the
husband. He likewise forewarns couples on the common cause of marital
failure, which is sexual maladjustment.
D ECISION: The Supreme Court was not convinced by Judge Lee’s
explanations. Hence, it dismissed Judge Lee. His off-rostrum comments
in the rape case and advice during weddings are not expected from a
judge. Such gutter-language is even rarely heard in the slums. When used
by a judge, respect for the entire judiciary plummets to levels where
people begin to doubt the moral standard of judges and their capacity
and fitness to dispense justice. The Canons of Judicial Ethics, particularly
Canon No. 3 provides: “3. Avoidance of appearance of impropriety.—
A judge’s official conduct should be free from appearance of impropriety,
and his personal behavior, not only upon the bench and in the performance
of judicial duties, but also in his everyday life, should be beyond reproach.”
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Appendices
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APPENDIX A
CONVENTION ON THE ELIMINATION OF ALL FORMS
OF DISCRIMINATION AGAINST WOMEN
G.A. RES. 34/182, 34 U.N. GAOR SUPP.
(NO. 46) AT 193, U.N. DOC. A/34/46, ENTERED INTO FORCE SEPT. 3, 1981.
T H E S TATES P ARTIES
T O THE PRESENT
C ONVENTION ,
Noting that the Charter of the United Nations reaffirms faith in
fundamental human rights, in the dignity and worth of the human person
and in the equal rights of men and women,
Noting that the Universal Declaration of Human Rights affirms the principle
of the inadmissibility of discrimination and proclaims that all human beings
are born free and equal in dignity and rights and that everyone is entitled
to all the rights and freedoms set forth therein, without distinction of any
kind, including distinction based on sex,
Noting that the States Parties to the International Covenants on Human
Rights have the obligation to ensure the equal rights of men and women
to enjoy all economic, social, cultural, civil and political rights,
Considering the international conventions concluded under the auspices
of the United Nations and the specialized agencies promoting equality of
rights of men and women,
Noting also the resolutions, declarations and recommendations adopted
by the United Nations and the specialized agencies promoting equality
of rights of men and women,
Concerned, however, that despite these various instruments extensive
discrimination against women continues to exist,
Recalling that 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,
Concerned that in situations of poverty women have the least access to
food, health, education, training and opportunities for employment and
other needs,
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Convinced that the establishment of the new international economic order
based on equity and justice will contribute significantly towards the
promotion of equality between men and women,
Emphasizing that the eradication of apartheid, all forms of racism, racial
discrimination, colonialism, neo-colonialism, aggression, foreign occupation
and domination and interference in the internal affairs of States is essential
to the full enjoyment of the rights of men and women,
Affirming that the strengthening of international peace and security, the
relaxation of international tension, mutual co-operation among all States
irrespective of their social and economic systems, general and complete
disarmament, in particular nuclear disarmament under strict and effective
international control, the affirmation of the principles of justice, equality
and mutual benefit in relations among countries and the realization of the
right of peoples under alien and colonial domination and foreign occupation
to self-determination and independence, as well as respect for national
sovereignty and territorial integrity, will promote social progress and
development and as a consequence will contribute to the attainment of
full equality between men and women,
Convinced that the full and complete development of a country, the
welfare of the world and the cause of peace require the maximum
participation of women on equal terms with men in all fields,
Bearing in mind the great contribution of women to the welfare of the
family and to the development of society, so far not fully recognized, the
social significance of maternity and the role of both parents in the family
and in the upbringing of children, and aware that the role of women in
procreation should not be a basis for discrimination but that the upbringing
of children requires a sharing of responsibility between men and women
and society as a whole,
Aware that a change in the traditional role of men as well as the role of
women in society and in the family is needed to achieve full equality
between men and women,
Determined to implement the principles set forth in the Declaration on
the Elimination of Discrimination against Women and, for that purpose,
to adopt the measures required for the elimination of such discrimination
in all its forms and manifestations,
Have agreed on the following:
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PART I
A RTICLE I
For the purposes of the present Convention, the term “discrimination
against women” shall mean any distinction, exclusion or restriction made
on the basis of sex which has the effect or purpose of impairing or nullifying
the recognition, enjoyment or exercise by women, irrespective of their
marital status, on a basis of equality of men and women, of human rights
and fundamental freedoms in the political, economic, social, cultural, civil
or any other field.
ARTICLE 2
States Parties condemn discrimination against women in all its forms,
agree to pursue by all appropriate means and without delay a policy of
eliminating discrimination against women and, to this end, undertake:
(a) To embody the principle of the equality of men and women in
their national constitutions or other appropriate legislation if not
yet incorporated therein and to ensure, through law and other
appropriate means, the practical realization of this principle;
(b) To adopt appropriate legislative and other measures, including
sanctions where appropriate, prohibiting all discrimination against
women;
(c) To establish legal protection of the rights of women on an equal
basis with men and to ensure through competent national tribunals
and other public institutions the effective protection of women
against any act of discrimination;
(d) To refrain from engaging in any act or practice of discrimination
against women and to ensure that public authorities and
institutions shall act in conformity with this obligation;
(e) To take all appropriate measures to eliminate discrimination
against women by any person, organization or enterprise;
(f) To take all appropriate measures, including legislation, to modify
or abolish existing laws, regulations, customs and practices which
constitute discrimination against women;
(g) To repeal all national penal provisions which constitute
discrimination against women.
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ARTICLE 3
States Parties shall take in all fields, in particular in the political, social,
economic and cultural fields, all appropriate measures, including legislation,
to ensure the full development and advancement of women, for the
purpose of guaranteeing them the exercise and enjoyment of human rights
and fundamental freedoms on a basis of equality with men.
ARTICLE 4
1. Adoption by States Parties of temporary special measures aimed
at accelerating de facto equality between men and women shall
not be considered discrimination as defined in the present
Convention, but shall in no way entail as a consequence the
maintenance of unequal or separate standards; these measures
shall be discontinued when the objectives of equality of
opportunity and treatment have been achieved.
2. Adoption by States Parties of special measures, including those
measures contained in the present Convention, aimed at
protecting maternity shall not be considered discriminatory.
ARTICLE 5
States Parties shall take all appropriate measures:
(a) To modify the social and cultural patterns of conduct of men
and women, with a view to achieving the elimination of
prejudices and customary and all other practices which are based
on the idea of the inferiority or the superiority of either of the
sexes or on stereotyped roles for men and women;
(b) To ensure that family education includes a proper understanding
of maternity as a social function and the recognition of the
common responsibility of men and women in the upbringing and
development of their children, it being understood that the
interest of the children is the primordial consideration in all cases.
ARTICLE 6
States Parties shall take all appropriate measures, including legislation, to
suppress all forms of traffic in women and exploitation of prostitution of
women.
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PART II
ARTICLE 7
States Parties shall take all appropriate measures to eliminate discrimination
against women in the political and public life of the country and, in
particular, shall ensure to women, on equal terms with men, the right:
(a) To vote in all elections and public referenda and to be eligible
for election to all publicly elected bodies;
(b) To participate in the formulation of government policy and the
implementation thereof and to hold public office and perform
all public functions at all levels of government;
(c) To participate in non-governmental organizations and
associations concerned with the public and political life of the
country.
ARTICLE 8
States Parties shall take all appropriate measures to ensure to women,
on equal terms with men and without any discrimination, the opportunity
to represent their Governments at the international level and to participate
in the work of international organizations.
ARTICLE 9
1. States Parties shall grant women equal rights with men to
acquire, change or retain their nationality. They shall ensure in
particular that neither marriage to an alien nor change of
nationality by the husband during marriage shall automatically
change the nationality of the wife, render her stateless or force
upon her the nationality of the husband.
2. States Parties shall grant women equal rights with men with
respect to the nationality of their children.
PART III
A R T I C L E 10
States Parties shall take all appropriate measures to eliminate discrimination
against women in order to ensure to them equal rights with men in the
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field of education and in particular to ensure, on a basis of equality of
men and women:
(a) The same conditions for career and vocational guidance,
for access to studies and for the achievement of diplomas in
educational establishments of all categories in rural as well
as in urban areas; this equality shall be ensured in pre-school,
general, technical, professional and higher technical education,
as well as in all types of vocational training;
(b) Access to the same curricula, the same examinations, teaching
staff with qualifications of the same standard and school
premises and equipment of the same quality;
(c) The elimination of any stereotyped concept of the roles of
men and women at all levels and in all forms of education by
encouraging coeducation and other types of education which
will help to achieve this aim and, in particular, by the revision
of textbooks and school programmes and the adaptation of
teaching methods;
(d) The same opportunities to benefit from scholarships and other
study grants;
(e) The same opportunities for access to programmes of
continuing education, including adult and functional literacy
programmes, particulary those aimed at reducing, at the
earliest possible time, any gap in education existing between
men and women;
(f) The reduction of female student drop-out rates and the
organization of programmes for girls and women who have
left school prematurely;
(g) The same Opportunities to participate actively in sports and
physical education;
(h) Access to specific educational information to help to ensure
the health and well-being of families, including information
and advice on family planning.
A R T I C L E 11
1. States Parties shall take all appropriate measures to eliminate
discrimination against women in the field of employment in
order to ensure, on a basis of equality of men and women,
the same rights, in particular:
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(a) The right to work as an inalienable right of all human beings;
(b) The right to the same employment opportunities, including
the application of the same criteria for selection in matters
of employment;
(c) The right to free choice of profession and employment, the
right to promotion, job security and all benefits and
conditions of service and the right to receive vocational
training and retraining, including apprenticeships, advanced
vocational training and recurrent training;
(d) The right to equal remuneration, including benefits, and to
equal treatment in respect of work of equal value, as well
as equality of treatment in the evaluation of the quality of
work;
(e) The right to social security, particularly in cases of
retirement, unemployment, sickness, invalidity and old age
and other incapacity to work, as well as the right to paid
leave;
(f) The right to protection of health and to safety in working
conditions, including the safeguarding of the function of
reproduction.
2. In order to prevent discrimination against women on the grounds
of marriage or maternity and to ensure their effective right to
work, States Parties shall take appropriate measures:
(a) To prohibit, subject to the imposition of sanctions, dismissal
on the grounds of pregnancy or of maternity leave and
discrimination in dismissals on the basis of marital status;
(b) To introduce maternity leave with pay or with comparable
social benefits without loss of former employment, seniority
or social allowances;
(c) To encourage the provision of the necessary supporting
social services to enable parents to combine family
obligations with work responsibilities and participation in
public life, in particular through promoting the establishment
and development of a network of child-care facilities;
(d) To provide special protection to women during pregnancy
in types of work proved to be harmful to them.
3. Protective legislation relating to matters covered in this article
shall be reviewed periodically in the light of scientific and
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technological knowledge and shall be revised, repealed or
extended as necessary.
A R T I C L E 12
1. States Parties shall take all appropriate measures to eliminate
discrimination against women in the field of health care in order
to ensure, on a basis of equality of men and women, access to
health care services, including those related to family planning.
2. Notwithstanding the provisions of paragraph I of this article,
States Parties shall ensure to women appropriate services in
connection with pregnancy, confinement and the post-natal
period, granting free services where necessary, as well as
adequate nutrition during pregnancy and lactation.
A R T I C L E 13
States Parties shall take all appropriate measures to eliminate
discrimination against women in other areas of economic and social life in
order to ensure, on a basis of equality of men and women, the same
rights, in particular:
(a) The right to family benefits;
(b) The right to bank loans, mortgages and other forms of financial
credit;
(c) The right to participate in recreational activities, sports and all
aspects of cultural life.
A R T I C L E 14
1. States Parties shall take into account the particular problems
faced by rural women and the significant roles which rural women
play in the economic survival of their families, including their
work in the non-monetized sectors of the economy, and shall
take all appropriate measures to ensure the application of the
provisions of the present Convention to women in rural areas.
2. States Parties shall take all appropriate measures to eliminate
discrimination against women in rural areas in order to ensure,
on a basis of equality of men and women, that they participate
in and benefit from rural development and, in particular, shall
ensure to such women the right:
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(a) To participate in the elaboration and implementation of
development planning at all levels;
(b) To have access to adequate health care facilities, including
information, counselling and services in family planning;
(c) To benefit directly from social security programmes;
(d) To obtain all types of training and education, formal and
non-formal, including that relating to functional literacy, as
well as, inter alia, the benefit of all community and extension
services, in order to increase their technical proficiency;
(e) To organize self-help groups and co-operatives in order to
obtain equal access to economic opportunities through
employment or self employment;
(f) To participate in all community activities;
(g) To have access to agricultural credit and loans, marketing
facilities, appropriate technology and equal treatment in land
and agrarian reform as well as in land resettlement schemes;
(h) To enjoy adequate living conditions, particularly in relation
to housing, sanitation, electricity and water supply, transport
and communications.
PART IV
A R T I C L E 15
1. States Parties shall accord to women equality with men before
the law.
2. States Parties shall accord to women, in civil matters, a legal
capacity identical to that of men and the same opportunities to
exercise that capacity. In particular, they shall give women equal
rights to conclude contracts and to administer property and shall
treat them equally in all stages of procedure in courts and
tribunals.
3. States Parties agree that all contracts and all other private
instruments of any kind with a legal effect which is directed at
restricting the legal capacity of women shall be deemed null and
void.
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4. States Parties shall accord to men and women the same rights
with regard to the law relating to the movement of persons and
the freedom to choose their residence and domicile.
A R T I C L E 16
1. States Parties shall take all appropriate measures to eliminate
discrimination against women in all matters relating to marriage
and family relations and in particular shall ensure, on a basis of
equality of men and women:
(a) The same right to enter into marriage;
(b) The same right freely to choose a spouse and to enter into
marriage only with their free and full consent;
(c) The same rights and responsibilities during marriage and at
its dissolution;
(d) The same rights and responsibilities as parents, irrespective
of their marital status, in matters relating to their children;
in all cases the interests of the children shall be paramount;
(e) The same rights to decide freely and responsibly on the
number and spacing of their children and to have access to
the information, education and means to enable them to
exercise these rights;
(f) The same rights and responsibilities with regard to
guardianship, wardship, trusteeship and adoption of children,
or similar institutions where these concepts exist in national
legislation; in all cases the interests of the children shall be
paramount;
(g) The same personal rights as husband and wife, including
the right to choose a family name, a profession and an
occupation;
(h) The same rights for both spouses in respect of the
ownership, acquisition, management, administration,
enjoyment and disposition of property, whether free of
charge or for a valuable consideration.
2. The betrothal and the marriage of a child shall have no legal
effect, and all necessary action, including legislation, shall be
taken to specify a minimum age for marriage and to make the
registration of marriages in an official registry compulsory.
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PART V
A R T I C L E 17
1. For the purpose of considering the progress made in the
implementation of the present Convention, there shall be
established a Committee on the Elimination of Discrimination
against Women (hereinafter referred to as the Committee)
consisting, at the time of entry into force of the Convention, of
eighteen and, after ratification of or accession to the Convention
by the thirty-fifth State Party, of twenty-three experts of high
moral standing and competence in the field covered by the
Convention. The experts shall be elected by States Parties from
among their nationals and shall serve in their personal capacity,
consideration being given to equitable geographical distribution
and to the representation of the different forms of civilization
as well as the principal legal systems.
2. The members of the Committee shall be elected by secret ballot
from a list of persons nominated by States Parties. Each State
Party may nominate one person from among its own nationals.
3. The initial election shall be held six months after the date of the
entry into force of the present Convention. At least three months
before the date of each election the Secretary-General of the
United Nations shall address a letter to the States Parties inviting
them to submit their nominations within two months. The
Secretary-General shall prepare a list in alphabetical order of all
persons thus nominated, indicating the States Parties which have
nominated them, and shall submit it to the States Parties.
4. Elections of the members of the Committee shall be held at a
meeting of States Parties convened by the Secretary-General at
United Nations Headquarters. At that meeting, for which two
thirds of the States Parties shall constitute a quorum, the persons
elected to the Committee shall be those nominees who obtain
the largest number of votes and an absolute majority of the votes
of the representatives of States Parties present and voting.
5. The members of the Committee shall be elected for a term of
four years. However, the terms of nine of the members elected
at the first election shall expire at the end of two years;
immediately after the first election the names of these nine
members shall be chosen by lot by the Chairman of the Committee.
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6. The election of the five additional members of the Committee
shall be held in accordance with the provisions of paragraphs 2,
3 and 4 of this article, following the thirty-fifth ratification or
accession. The terms of two of the additional members elected
on this occasion shall expire at the end of two years, the names
of these two members having been chosen by lot by the
Chairman of the Committee.
7. For the filling of casual vacancies, the State Party whose expert
has ceased to function as a member of the Committee shall
appoint another expert from among its nationals, subject to the
approval of the Committee.
8. The members of the Committee shall, with the approval of the
General Assembly, receive emoluments from United Nations
resources on such terms and conditions as the Assembly may
decide, having regard to the importance of the Committee’s
responsibilities.
9. The Secretary-General of the United Nations shall provide the
necessary staff and facilities for the effective performance of
the functions of the Committee under the present Convention.
A R T I C L E 18
1. States Parties undertake to submit to the Secretary-General of
the United Nations, for consideration by the Committee, a report
on the legislative, judicial, administrative or other measures
which they have adopted to give effect to the provisions of the
present Convention and on the progress made in this respect:
(a) Within one year after the entry into force for the State
concerned;
(b) Thereafter at least every four years and further whenever
the Committee so requests.
2. Reports may indicate factors and difficulties affecting the degree
of fulfilment of obligations under the present Convention.
A R T I C L E 19
1. The Committee shall adopt its own rules of procedure.
2. The Committee shall elect its officers for a term of two years.
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A R T I C L E 20
1. The Committee shall normally meet for a period of not more
than two weeks annually in order to consider the reports
submitted in accordance with article 18 of the present
Convention.
2. The meetings of the Committee shall normally be held at
United Nations Headquarters or at any other convenient
place as determined by the Committee.
A R T I C L E 21
1. The Committee shall, through the Economic and Social
Council, report annually to the General Assembly of the
United Nations on its activities and may make suggestions
and general recommendations based on the examination of
reports and information received from the States Parties.
Such suggestions and general recommendations shall be
included in the report of the Committee together with
comments, if any, from States Parties.
2. The Secretary-General of the United Nations shall transmit
the reports of the Committee to the Commission on the
Status of Women for its information.
A R T I C L E 22
The specialized agencies shall be entitled to be represented at the
consideration of the implementation of such provisions of the present
Convention as fall within the scope of their activities. The Committee
may invite the specialized agencies to submit reports on the
implementation of the Convention in areas falling within the scope of
their activities.
PART VI
A R T I C L E 23
Nothing in the present Convention shall affect any provisions that
are more conducive to the achievement of equality between men
and women which may be contained:
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(a) In the legislation of a State Party; or
(b) In any other international convention, treaty or agreement in
force for that State.
A R T I C L E 24
States Parties undertake to adopt all necessary measures at the national
level aimed at achieving the full realization of the rights recognized in the
present Convention.
A R T I C L E 25
1. The present Convention shall be open for signature by all States.
2. The Secretary-General of the United Nations is designated as
the depositary of the present Convention.
3. The present Convention is subject to ratification. Instruments
of ratification shall be deposited with the Secretary-General of
the United Nations.
4. The present Convention shall be open to accession by all States.
Accession shall be effected by the deposit of an instrument of
accession with the Secretary-General of the United Nations.
A R T I C L E 26
1. A request for the revision of the present Convention may be
made at any time by any State Party by means of a notification
in writing addressed to the Secretary-General of the United
Nations.
2. The General Assembly of the United Nations shall decide upon
the steps, if any, to be taken in respect of such a request.
A R T I C L E 27
1. The present Convention shall enter into force on the thirtieth day
after the date of deposit with the Secretary-General of the United
Nations of the twentieth instrument of ratification or accession.
2. For each State ratifying the present Convention or acceding to
it after the deposit of the twentieth instrument of ratification or
accession, the Convention shall enter into force on the thirtieth
day after the date of the deposit of its own instrument of
ratification or accession.
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A R T I C L E 28
1. The Secretary-General of the United Nations shall receive and
circulate to all States the text of reservations made by States at
the time of ratification or accession.
2. A reservation incompatible with the object and purpose of the
present Convention shall not be permitted.
3. Reservations may be withdrawn at any time by notification to
this effect addressed to the Secretary-General of the United
Nations, who shall then inform all States thereof. Such notification
shall take effect on the date on which it is received.
A R T I C L E 29
1. Any dispute between two or more States Parties concerning
the interpretation or application of the present Convention which
is not settled by negotiation shall, at the request of one of them,
be submitted to arbitration. If within six months from the date
of the request for arbitration the parties are unable to agree on
the organization of the arbitration, any one of those parties may
refer the dispute to the International Court of Justice by request
in conformity with the Statute of the Court.
2. Each State Party may at the time of signature or ratification of
the present Convention or accession thereto declare that it does
not consider itself bound by paragraph I of this article. The
other States Parties shall not be bound by that paragraph with
respect to any State Party which has made such a reservation.
3. Any State Party which has made a reservation in accordance
with paragraph 2 of this article may at any time withdraw that
reservation by notification to the Secretary-General of the
United Nations.
A R T I C L E 30
The present Convention, the Arabic, Chinese, English, French, Russian
and Spanish texts of which are equally authentic, shall be deposited with
the Secretary-General of the United Nations.
IN WITNESS WHEREOF the undersigned, duly authorized, have signed
the present Convention.
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APPENDIX B
DECLARATION ON THE ELIMINATION
OF VIOLENCE AGAINST WOMEN
GENERAL ASSEMBLY
RESOLUTION 48/104
OF
20 DECEMBER 1993
THE GENERAL ASSEMBLY,
Recognizing the urgent need for the universal application to women of
the rights and principles with regard to equality, security, liberty, integrity
and dignity of all human beings,
Noting that those rights and principles are enshrined in international
instruments, including the Universal Declaration of Human Rights, 1/ the
International Covenant on Civil and Political Rights, 2/ the International
Covenant on Economic, Social and Cultural Rights, 2/ the Convention on
the Elimination of All Forms of Discrimination against Women 3/ and the
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, 4/ Recognizing that effective implementation
of the Convention on the Elimination of All Forms of Discrimination against
Women would contribute to the elimination of violence against women
and that the Declaration on the Elimination of Violence against Women,
set forth in the present resolution, will strengthen and complement that
process,
Concerned that violence against women is an obstacle to the achievement
of equality, development and peace, as recognized in the Nairobi
Forward-looking Strategies for the Advancement of Women, 5/ in which
a set of measures to combat violence against women was recommended,
and to the full implementation of the Convention on the Elimination of All
Forms of Discrimination against Women,
Affirming that violence against women constitutes a violation of the rights
and fundamental freedoms of women and impairs or nullifies their
enjoyment of those rights and freedoms, and concerned about the longstanding failure to protect and promote those rights and freedoms in the
case of violence against women,
Recognizing that violence against women is a manifestation of historically
unequal power relations between men and women, which have led to
domination over and discrimination against women by men and to the
prevention of the full advancement of women, and that violence against
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women is one of the crucial social mechanisms by which women are
forced into a subordinate position compared with men,
Concerned that some groups of women, such as women belonging to
minority groups, indigenous women, refugee women, migrant women,
women living in rural or remote communities, destitute women, women
in institutions or in detention, female children, women with disabilities,
elderly women and women in situations of armed conflict, are especially
vulnerable to violence,
Recalling the conclusion in paragraph 23 of the annex to Economic and
Social Council resolution 1990/15 of 24 May 1990 that the recognition
that violence against women in the family and society was pervasive and
cut cross lines of income, class and culture had to be matched by urgent
and effective steps to eliminate its incidence,
Recalling also Economic and Social Council resolution 1991/18 of 30
May 1991, in which the Council recommended the development of a
framework for an international instrument that would address explicitly
the issue of violence against women,
Welcoming the role that women’s movements are playing in drawing
increasing attention to the nature, severity and magnitude of the problem
of violence against women,
Alarmed that opportunities for women to achieve legal, social, political
and economic equality in society are limited, inter alia, by continuing and
endemic violence,
Convinced that in the light of the above there is a need for a clear and
comprehensive definition of violence against women, a clear statement
of the rights to be applied to ensure the elimination of violence against
women in all its forms, a commitment by States in respect of their
responsibilities, and a commitment by the international community at
large to the elimination of violence against women,
Solemnly proclaims the following Declaration on the Elimination of
Violence against Women and urges that every effort be made so that it
becomes generally known and respected:
ARTICLE 1
For the purposes of this Declaration, the term “violence against women”
means any act of gender-based violence that results in, or is likely to
result in, physical, sexual or psychological harm or suffering to women,
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including threats of such acts, coercion or arbitrary deprivation of liberty,
whether occurring in public or in private life.
ARTICLE 2
Violence against women shall be understood to encompass, but not be
limited to, the following:
(a) Physical, sexual and psychological violence occurring in the family,
including battering, sexual abuse of female children in the
household, dowry-related violence, marital rape, female genital
mutilation and other traditional practices harmful to women,
non-spousal violence and violence related to exploitation;
(b) Physical, sexual and psychological violence occurring within the
general community, including rape, sexual abuse, sexual
harassment and intimidation at work, in educational institutions
and elsewhere, trafficking in women and forced prostitution;
(c) Physical, sexual and psychological violence perpetrated or
condoned by the State, wherever it occurs.
ARTICLE 3
Women are entitled to the equal enjoyment and protection of all human
rights and fundamental freedoms in the political, economic, social, cultural,
civil or any other field. These rights include, inter alia:
6
(a) The right to life ;
7
(b) The right to equality ;
8
(c) The right to liberty and security of person ;
7
(d) The right to equal protection under the law ;
7
(e) The right to be free from all forms of discrimination ;
(f) The right to the highest standard attainable of physical and mental
9
health ;
10
(g) The right to just and favourable conditions of work ;
(h) The right not to be subjected to torture, or other cruel, inhuman
11
or degrading treatment or punishment.
ARTICLE 4
States should condemn violence against women and should not invoke
any custom, tradition or religious consideration to avoid their obligations
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with respect to its elimination. States should pursue by all appropriate
means and without delay a policy of eliminating violence against women
and, to this end, should:
(a) Consider, where they have not yet done so, ratifying or acceding
to the Convention on the Elimination of All Forms of Discrimination
against Women or withdrawing reservations to that Convention;
(b) Refrain from engaging in violence against women;
(c) Exercise due diligence to prevent, investigate and, in accordance
with national legislation, punish acts of violence against women,
whether those acts are perpetrated by the State or by private
persons;
(d) Develop penal, civil, labour and administrative sanctions in
domestic legislation to punish and redress the wrongs caused
to women who are subjected to violence; women who are
subjected to violence should be provided with access to the
mechanisms of justice and, as provided for by national legislation,
to just and effective remedies for the harm that they have
suffered; States should also inform women of their rights in
seeking redress through such mechanisms;
(e) Consider the possibility of developing national plans of action to
promote the protection of women against any form of violence,
or to include provisions for that purpose in plans already existing,
taking into account, as appropriate, such co-operation as can be
provided by non-governmental organizations, particularly those
concerned with the issue of violence against women;
(f) Develop, in a comprehensive way, preventive approaches and
all those measures of a legal, political, administrative and
cultural nature that promote the protection of women against
any form of violence, and ensure that the revictimization of
women does not occur because of laws insensitive to gender
considerations, enforcement practices or other interventions;
(g) Work to ensure, to the maximum extent feasible in the light
of their available resources and, where needed, within the
framework of international co-operation, that women
subjected to violence and, where appropriate, their children
have specialized assistance, such as rehabilitation, assistance
in child care and maintenance, treatment, counselling, and
health and social services, facilities and programmes, as well
as support structures, and should take all other appropriate
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measures to promote their safety and physical and psychological
rehabilitation;
(h) Include in government budgets adequate resources for their
activities related to the elimination of violence against women;
(i) Take measures to ensure that law enforcement officers and
public officials responsible for implementing policies to prevent,
investigate and punish violence against women receive training
to sensitize them to the needs of women;
(j) Adopt all appropriate measures, especially in the field of education,
to modify the social and cultural patterns of conduct of men and
women and to eliminate prejudices, customary practices and all
other practices based on the idea of the inferiority or superiority
of either of the sexes and on stereotyped roles for men and women;
(k) Promote research, collect data and compile statistics, especially
concerning domestic violence, relating to the prevalence of
different forms of violence against women and encourage
research on the causes, nature, seriousness and consequences
of violence against women and on the effectiveness of measures
implemented to prevent and redress violence against women;
those statistics and findings of the research will be made public;
(l) Adopt measures directed towards the elimination of violence
against women who are especially vulnerable to violence;
(m) Include, in submitting reports as required under relevant human
rights instruments of the United Nations, information pertaining
to violence against women and measures taken to implement
the present Declaration;
(n) Encourage the development of appropriate guidelines to assist
in the implementation of the principles set forth in the present
Declaration;
(o) Recognize the important role of the women’s movement and
non-governmental organizations world wide in raising awareness
and alleviating the problem of violence against women;
(p) Facilitate and enhance the work of the women’s movement and
non-governmental organizations and cooperate with them at
local, national and regional levels;
(q) Encourage inter-governmental regional organizations of which
they are members to include the elimination of violence against
women in their programmes, as appropriate.
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ARTICLE 5
The organs and specialized agencies of the United Nations system should,
within their respective fields of competence, contribute to the recognition
and realization of the rights and the principles set forth in the present
Declaration and, to this end, should, inter alia:
(a) Foster international and regional co-operation with a view to
defining regional strategies for combating violence, exchanging
experiences and financing programmes relating to the elimination
of violence against women;
(b) Promote meetings and seminars with the aim of creating and
raising awareness among all persons of the issue of the elimination
of violence against women;
(c) Foster co-ordination and exchange within the United Nations
system between human rights treaty bodies to address the issue
of violence against women effectively;
(d) Include in analyses prepared by organizations and bodies of the
United Nations system of social trends and problems, such as
the periodic reports on the world social situation, examination
of trends in violence against women;
(e) Encourage co-ordination between organizations and bodies of
the United Nations system to incorporate the issue of violence
against women into ongoing programmes, especially with reference
to groups of women particularly vulnerable to violence;
(f) Promote the formulation of guidelines or manuals relating to
violence against women, taking into account the measures
referred to in the present Declaration;
(g) Consider the issue of the elimination of violence against women,
as appropriate, in fulfilling their mandates with respect to the
implementation of human rights instruments;
(h) Cooperate with non-governmental organizations in addressing
the issue of violence against women.
ARTICLE 6
Nothing in the present Declaration shall affect any provision that is more
conducive to the elimination of violence against women that may be
contained in the legislation of a State or in any international convention,
treaty or other instrument in force in a State.
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NOTES
1. Resolution 217 A (III).
2. See resolution 2200 A (XXI), annex.
3. Resolution 34/180, annex.
4. Resolution 39/46, annex.
5. Report of the World Conference to Review and Appraise the Achievements of the
United Nations Decade for Women: Equality, Development and Peace, Nairobi, 15–26 July
1985 (United Nations publication, Sales No. E.85.IV.10), chap. I, sect. A.
6. Universal Declaration of Human Rights, article 3; and International Covenant on Civil
and Political Rights, article 6.
7. International Covenant on Civil and Political Rights, article 26.
8. Universal Declaration of Human Rights, article 3; and International Covenant on Civil
and Political Rights, article 9.
9. International Covenant on Economic, Social and Cultural Rights, article 12.
10. Universal Declaration of Human Rights, article 23; and International Covenant on
Economic, Social and Cultural Rights, articles 6 and 7.
11. Universal Declaration of Human Rights, article 5; International Covenant on Civil and
Political Rights, article 7; and Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment.
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APPENDIX C
PROFILES
OF THE
AWARDEES
JUDGE MA. NIMF
A P ENA
CO- S IT
ACA has served since 1990 as Presiding
IMFA
ENACO
ITA
Judge of the Regional Trial Court (RTC) Branch 13 of Oroquieta City.
She was in Ozamis City as Assisting Judge of RTC Branch 15 and as
Acting Presiding Judge of Branch 35. She has been a recipient of several
citations including the best written Decisions Award in 1991 and 1993
from the Philippine Women Judges Association. A native of Baliangao,
Misamis Occidental, Judge Penaco-Sitaca finished her Bachelor of Laws
at the Colegio de San Jose Recoletos in Cebu City in 1972 and her
Bachelor of Arts major in English at the Immaculate Concepcion College,
Ozamis City, in 1968.
JUDGE ELOID
A PATRICIA R. DE LEON-DIAZ is the Presiding Judge of RTC
OIDA
Branch 58 +of Lucena City since June 2002. She obtained her Bachelor
of Laws from the University of Santo Tomas in 1981 and her A.B. major
in Sociology from the same school in 1977. Judge Diaz was appointed to
the Judiciary in 1993 and has served in various Municipal Trial Courts in
Quezon Province and in the Metropolitan Court of Makati City.
JUDGE CLIFT
ON U
Y is the Executive Judge at RTC Branch 31 of
LIFTON
U.. GANA
ANAY
Agoo, La Union. He has received numerous awards in recognition of his
excellent performance. He was named Outstanding RTC Executive Judge
of the Year and Excellent Dispenser of Justice in 2000. The Supreme
Court and the Foundation for Judicial Excellence also chose Judge Clifton
Ganay as the Regional Centennial Judge in 2001.
J UDGE T EODORO A
A.. B AY obtained his Bachelor of Laws from the
University of San Carlos, Cebu City. He has been Presiding Judge of
RTC Branch 86 (Family Court) of Quezon City since 1995. Judge Bay
has also served as Presiding Judge in San Fernando, Pampanga, and in
Makati City. He was also appointed Assistant Prosecutor of Quezon
City in 1980.
JUDGE EDGAR G. GARVILLES is a top graduate of his class in the University
of San Agustin. He is the Presiding Judge of RTC Branch 47 of Bacolod
City. The native of Guimbal, Iloilo, has received numerous citations
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including the 2001 Award for Judicial Excellence as Centennial RTC Judge
for Region VI given by the Supreme Court and the Foundation for Judicial
Excellence. He has served the government for 33 years.
JUDGE JACOB TT.. MALIK is Presiding Judge of RTC Branch 21 in Kapatagan,
Lanao del Norte, from February 1987 up to the present. He was Acting
Presiding Judge of RTC Branch 7 in Tubod, Lanao del Norte, from
February 2001 to January 2002.
J UDGE B ENSAUDI I. A RABANI, S R. is a known expert on the Code of
Muslim Personal Laws. He was given an Special Citation for his scholarship
and understanding of the situation of Muslim women.
JUDGE ANTHONY E
OS is a retired RTC judge of Cagayan de Oro
E.. SANT
ANTOS
City. He wrote the first decision convicting a businessman of two counts
of marital rape under Republic Act No. 8353 or the Anti-Rape Act of
1997.
JUDGE EDGARDO DEL
OS SANT
OS of the RTC Branch 45 of Bacolod City
DELOS
ANTOS
wrote the first decision on Republic Act No. 6955, the law making it
unlawful for anyone to match Filipino women with foreigners as mail
order brides. He was given a Novel Decision Citation.
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APPENDIX D
PROFILES
OF
PARTNER ORGANIZATIONS
U NIVERSITY O F T H E P HILIPPINES C ENTER FOR W O M E N’ S S T U D I E S
FOUND
ATION, I NC. (UPCWSFI) was founded in 1992. It is composed
OUNDA
of women and men dedicated to help the UP Center for Women’s Studies
in its efforts to raise the status of women in Philippine society through
research, training, conferences, outreach, and dissemination of significant
information about women.
N ATIONAL C OMMISSION ON THE R OLE OF F ILIPINO W OMEN (NCRFW)
is the Philippines’ national machinery for the advancement of women.
NCRFW is an advisory body to the President and cabinet on policies
and programmes to advance the women’s agenda. It conducts policy
studies and lobbying for the issuance of executive and legislative measures
pertaining to women’s issues and concerns. It also manages a clearinghouse
and information center on women.
C OMMISSION ON H UMAN R IGHTS (CHR) is an external advisor and
“prescriber” of human rights protection standards. It is also an independent
monitor, evaluator and position advocate on human rights in relation to
proposed and existing national/ local laws and legislations, and government
policies, programs, actions and performance. On the basis of its vision
and mission statements, the Commission seeks to adhere to the following
core values in the performance of all aspects of its mandate and work:
independence and pluralism, participation, equality, accessibility,
accountability, and openness and sincerity.
THE ZONT
A INTERNA
TIONAL is a worldwide service organization of business
ONTA
NTERNATIONAL
executives and professionals working together for the advancement of
the status of women and their children. It has around 34,000 members in
at least 65 countries.
UNIFEM S OUTH E AST A SIA R EGIONAL O FFICE (UNIFEM) works to
promote gender equality between women and men and to advance the
status of women. It focuses on implementing the Beijing Platform for
Action and other UN global commitments through political and economic
empowerment of women, and through the full realization of women’s
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human rights. UNIFEM works with governments, NGOs, community
and other organizations, as well as individuals. The East and Southeast
Asia Regional Office cover 13 countries.
UNITED NATIONS DEVEL
OPMENT PROGRAMME (UNDP) is the UN’s global
EVELOPMENT
development network, advocating for change and connecting countries
to knowledge, experience and resources to help people build a better
life. It is involved in 166 countries, working with them on their own
solutions to global and national development challenges. UNDP helps
developing countries attract and use aid effectively. In all activities, UNDP
encourage the protection of human rights and the empowerment of
women.
INTEGRA
TED BAR OF THE PHILIPPINES (IBP) is the official organization of
NTEGRATED
all Philippine lawyers whose names appear in the Roll of Attorneys of
the Supreme Court. The IBP came into being when the Supreme Court
created on October 5, 1970 the Commission on Bar Integration which
was tasked “not only to ascertain the advisability of integration of the
Bar, but even more, to serve as a common vehicle of the Court and the
Bar in fashioning a blueprint for integration and putting same into actual
operation.”
PHILIPPINE BAR ASSOCIA
TION (PBA) is the oldest and biggest voluntary
SSOCIATION
association of lawyers in the Philippines. It has a legal aid program and
advocacy projects on the environment, children’s rights, and women’s
rights.
L EGAL A D V OCA
TES FOR W OMEN N ETWORK (LA
OCATES
(LAWNET)
WNET) is a national
network of women lawyers and law students addressing violence against
women and children through various forms of legal advocacy.
ALLAS) was organized in
D A V A O L A DDYY L A W Y E R S A S S O C I AATT I O N (D
(DALLAS)
September 1990 by ten distinguished women lawyers in Davao committed
to protecting women and children and advancing their interests. Its
membership is open to all women lawyers residing or holding office in
Davao City, Davao del Sur, Davao del Norte and Davao Oriental. At
present, it has a total of about 100 members.
A SIAN CENTER FOR WOMEN’S HUMAN RIGHTS (ASCENT) was set up to
respond to the training needs of women’s organizations in Asia on human
rights standards. ASCENT uses the human rights system to monitor,
Engendering the Philippine Judiciary
181
investigate, document, report and enforce women’s human rights. It has
developed a women’s human rights defenders program that gives women’s
rights training, including understanding of and access to the UN system
and international human rights standards and mechanisms.
P I L I P I N A L E G A L R E S O U R C E C E N T E R (PLRC) is a non-profit, nongovernmental organization that uses the law for the empowerment and
development of women and disadvantaged communities. It conducts
legal literacy in the form of the Women’s Paralegal Institute for grassroots
women and the Women’s Institute for Law and Development (WILD)
for those in various professions. PLRC undertakes various researches on
the issues of women’s rights, development, and social justice.
S ENTRO NG A LTERNA
TIBONG L INGAP P ANLEGAL (SALIGAN) is a legal
TERNATIBONG
resource non-governmental organization doing developmental legal work
with farmers, workers, the urban poor, women, and local communities.
SALIGAN’s partnerships with the marginalized sectors and local
communities are vast and deep. It has more than one hundred partnerorganizations all over the country, from Luzon, Visayas and Mindanao.
Founded in 1987, SALIGAN is one of the oldest and biggest members of
the Alternative Law Groups, Inc. (ALG), a coalition of around twentyfour (24) law groups in the Philippines engaged in the practice of alternative
or developmental law.
CHILD JUSTICE LEAGUE, INC. (CJL) is a non-governmental organization
dedicated to the protection and promotion of the rights of children.
L EGAL A LTERNA
TIVES FOR W OMEN , Inc. is a Cebu-based NGO that
TERNATIVES
advocates for women’s rights and provides legal aid to VAW survivors.
G ENDER W ATCH C OALITION is composed of lawyers, advocates, and
women’s groups in Negros Occidental who are advocating for gender
justice, judicial reform and women’s rights.
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182
APPENDIX E
THE PRIME MOVERS
OF THE
PROJECT
The Review Team
Atty. Milagros Isabel Cristobal-Amar
ASCENT
Atty. Flora C. Atilano
Commission on Human Rights
Atty. Charmaine M. Calalang
CATW-AP
Atty. Sally D. Escutin
Director, Legal Service,
DSWD
Atty. Ana Luz Cristal
LAWNET
Atty. Sheila Bazar
UP Office of Legal Aid
Atty. Joan Mosatalla
SALIGAN
Atty. Michael Vincent Gaddi
SALIGAN
Atty. Editha Arciaga Santos
LAWNET
Atty. Ricardo Sunga III
Dep. Regional Coordinator for MM,
FLAG
Atty. Lady Rochelle S. Saymo
Child Justice League, Inc.
Atty. Maria Lorenza I. Barias
Child Justice League, Inc.
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183
The Board of Judges
Justice Leonor I. Luciano
Associate Justice
Court of Appeals (Retired)
Atty. Lorna P. Kapunan
Women’s Business Council
Ms. Sheila S. Coronel
2003 Magsaysay Awardee for Journalism
Executive Director
Philippine Center for Investigative Journalism
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184
The Book Project Committee
Dr. Carolyn I. Sobritchea
Director
UP Center for Women’s Studies
Ms. Emmeline L. Verzosa
Executive Director
National Commission on the Role of Filipino Women
Judge Nimfa Cuesta Vilches
Branch 48, Regional Trial Court
Manila
Ms. Rosalina de la Paz Magat
President (2002–2004)
Zonta Club of Metro Pasig
Prof. Aurora Javate-de Dios
Chairperson (2001–2004)
National Commission on the Role of Filipino Women
Ms. Sheila S. Coronel
2003 Magsaysay Awardee for Journalism
Executive Director
Philippine Center for Investigative Journalism
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185
The Research Team
Atty. Milagros Isabel Cristobal-Amar
ASCENT
Atty. Ana Luz Cristal
LAWNET
Atty. Editha Arciaga Santos
LAWNET
Atty. Lady Rochelle S. Saymo
Child Justice League, Inc.
Atty. Maria Lorenza I. Barias
Child Justice League, Inc.
Atty. Sheila Bazar
UP Office of Legal Aid
Atty. Angel Ojastro
Pro-Active Legal Advocates, Naga City
Atty. Honorata Victoria
Kanlungan Center Foundation, Inc.
Atty. Imelda Gidor
Gender Watch Coalition
Atty. Romeo Sta. Ana
Gender Watch Coalition
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186
The Contributors
ANNU QUAGGIO
TT
O is an English qualified lawyer who
GGIOTT
TTO
has practised in the areas of civil liberties, children’s
law and domestic violence cases. She completed her
LL.M. in human rights in developing countries, law and
development and environmental law at Kings College,
London.
JUDGE NIMF
A CUEST
A VILCHES was appointed Presiding
IMFA
UESTA
Judge, Regional Trial Court, Branch 48, Manila in 1999.
She has completed many training courses on children’s
rights, juvenile law, people trafficking and forensic and
judicial studies in the UK and USA.
A TTY . A DORA
CION C RUZ A VISADO is the Executive
DORACION
Director of Avisado Advocacy Consultancy,
Counseling and Training Services (AACCTS) Center and
the Transformative Justice Institute. She is a multiawarded former RTC judge and one of the 27 Filipino
women included in the Project 1000 Women for the
Nobel Peace Prize 2005.
JUDGE EDGARDO DEL
OS SANT
OS of the Regional Trial
DELOS
ANTOS
Court of Bacolod City, Branch 45, wrote the first
decision on Republic Act 6955, which makes it unlawful
for anyone to match Filipino women with foreigners as
mail order brides and was given the Novel Decision
Award in 2004 for his contribution to jurisprudence
on gender and women’s rights.
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187
Glossary of Terms
Discrimination. ”Discrimination against women” shall mean any distinction,
exclusion or restriction made on the basis of sex which has the effect
or purpose of impairing or nullifying the recognition, enjoyment or
exercise by women irrespective of their marital status, on a basis of
quality of men and women, of human rights and fundamental freedoms
in the political, economic, social, cultural, civil or any other field. [1]
Empowerment is about power and changing the unequal distribution of power
in society—i.e. the rights, resources, opportunities and responsibilities
of individuals and social groups in relation to one another in a given
society. Empowerment is aimed at creating change at an individual
level and at the social level in attaining both equality (under the law)
and equity (equal access) between individuals and social groups.
Feminism. A perspective for understanding, from a marginal or boundarydwelling perspective, one’s own participation in socially constructed
realities, both politically and personally, both socially and cognitively.
Feminism involves questioning the very bases of socialization and
perception. [2]
Gender refers to the array of socially constructed roles and relationships,
personality traits, attitudes, behaviors, values, relative power and
influence that society ascribes to the two sexes on a differential basis.
Whereas biological sex is determined by genetic and anatomical
characteristics, gender is an acquired identity that is learned, changes
over time, and varies widely within and across cultures. Gender is
relational and refers not simply to women or men but to the relationship
between them. [3]
Gender Equality entails the concept that all human beings, both men and
women, are free to develop their personal abilities and make choices
without the limitations set by stereotypes, rigid gender roles, or
prejudices. [4]
Gender Equity is a related concept of distributive justice. Gender equity is
attained when social conditions are overcome to allow fair access and
control over resources to men and women. [5]
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Gender Analysis is a systematic way of looking at the different impacts of
development, policies, programs and legislation on women and men.
It entails, first and foremost, collecting sex-disaggregated data and
gender-sensitive information about the population concerned. Gender
analysis can also include the examination of the multiple ways in which
women and men, as social actors, engage in strategies to transform
existing roles, relationships, and processes in their own interest and in
the interest of others. [6]
Gender and Development focuses on social, economic, political and cultural
forces that determine how men and women participate in, benefit
from, and control project resources and activities differently. This
approach shifts the focus from women as a group to the socially
determined relations between women and men.
Gender Mainstreaming is the process of assessing the implications for women
and men of any planned action, including legislation, policies or
programmes, in any area and at all levels. It is a strategy for making
women’s as well as men’s concerns and experiences an integral
dimension in the design, implementation, monitoring and evaluation
of policies and programmes in all political, economic and social spheres,
such that inequality between men and women is not perpetuated. [7]
Gender stereotypes determine traditional gender roles and gender role
standards—masculinity for men and femininity for women.
Gender-based Violence (GBV) refers to violence targeting women or men,
girls or boys on the basis of their gender or sexual orientation. It includes,
but is not limited to, sexual violence, which is often used as an instrument
of terror and torture in armed conflict situations. [8]
Gender Justice refers “to the protection and promotion of civil, political,
economic and social rights on the basis of gender equality. It necessitates
taking a gender perspective on the rights themselves, as well as the
assessment of access and obstacles to the enjoyment of these rights for
women, men, girls and boys and adopting gender-sensitive strategies
for protecting and promoting them.” [9]
Reproductive Rights rest on the recognition of the basic right of all
couples and individuals to decide freely and responsibly the
number, spacing and timing of their children and to have the information
and means to do so, and the right to attain the highest standard of
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189
sexual and reproductive health. They also include the right of all to
make decisions concerning reproduction free of discrimination, coercion
and violence. [10]
Sex refers to the biological characteristics which define humans as female or
male. These sets of biological characteristics are not mutually exclusive
as there are individuals who possess both, but these characteristics
tend to differentiate humans as males and females.
Sexism. Any attitude, action or institutional structure which systematically
subordinates a person or group because of their sex. [11]
Sexual Harassment. Over the last twenty years, laws prohibiting sexual
harassment in the workplace have defined the term to include part or
all of the following conduct:
• unwelcome or unwanted verbal, non-verbal, physical or visual
conduct based on sex or of a sexual nature
• the acceptance or rejection of which affects an individual’s
employment
• which occurs with the purpose or effect of violating the dignity of a
person
• which unreasonably interferes with an individual’s work performance
• which creates an intimidating, hostile, degrading, humiliating or
offensive work environment, or
• which constitutes an abuse of authority
The following acts are examples of behavior which may, under certain
circumstances, be considered sexual harassment: sexual advances or
propositions, offensive questions or comments about physical
appearance or sex life, lewd comments, sexual jokes and insults, leering,
the display or pornographic material designed to embarrass or intimidate
an employee or student, inappropriate touching, pinching, or cornering,
sexual assault and rape. [12]
Stereotypes. Set of unexamined images people hold of certain groups.
Strategic Gender Interests (SGIs) are identified by women as a result of
their subordinate social status, and tend to challenge gender divisions
of labour power and control, and traditionally defined norms and roles.
SGIs vary according to particular contexts and may include such issues
as legal rights, domestic violence, equal wages, and women’s control
over their bodies. [13]
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Violence Against W
omen (VAW). Any act of gender-based violence that
Women
results in, or is likely to result, in physical, sexual or psychological
harm or suffering to women, including threats of such acts, coercion
or arbitrary deprivation of liberty, whether occurring in public or in
private life. [14]
1. Article 1, Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW).
2. Reinharz, Shulamit. Feminist Methods in Social Research. New York: Oxford University
Press, 1992.
3. Exploring Concepts of Gender and Health. Ottawa: Health Canada, 2003
http://www.hc-sc.gc.ca/english/women/exploringconcepts.htm.
4. ABC of Women Worker’s Rights and Gender Equality. Geneva: ILO, 2000.
5. Torres, Amaryllis T., et al. Gender and Development: Making the Bureaucracy GenderResponsive. United Nations Fund for Women and NCRFW, 1994.
6. Health Canada, 2003 and ILO 2000 and Gender and Biodiversity Research Guidelines.
Ottawa: International Development Research Centre, 1998. http://www.idrc.ca:8080/
biodiversity/tools/gender1_e.cfm ILO.
7. Agreed Conclusions on Gender Mainstreaming. Geneva: United Nations Economic
and Social Council, 1997. http://www.un.org/documents/ecosoc/docs/1997/e1997–66.htm.
8. INSTRAW 2004.
9. International Alert 2004.
10. Programme of Action of the International Conference on Population and Development.
Geneva: United Nations, 1994, para 7.3 http://www.unfpa.org/icpd/icpd_poa.htm#ch7.
11. Russel, Valerie. “Racism & Sexism—A Collective Struggle: A Minority Woman’s Point of
View.” Pittsburgh: Know, Inc. n.d.
12. UNIFEM.
13. Vainio-Mattila, A. “Navigating Gender: A Framework and a Tool for Participatory
Development.” Helsinki: Finland Ministry for Foreign Affairs, 1999. http://global.finland.fi/
julkaisut/taustat/nav_gender/glossary.htm.
14. Declaration on the Elimination of Violence Against Women, 1994.