LAW EACH WEEK
The anti-rape law
by Atty. Karissa Tolentino

Rape is governed by Article 335 of the Revised Penal Code (RPC), which was amended by Republic Act No. 8353, also known as the “Anti-Rape Law of 1997”. Rape is now a crime against persons and no longer a private crime, which means that anyone who has knowledge of the crime of rape may file a case on the victim’s behalf. Prosecution continues even if the victim drops the case or pardons the offender, except when the victim marries the accused. A woman or a man can now commit rape and both genders can be victims too. The new law also provides that the subsequent valid marriage between the offender and the offended party shall extinguish the criminal action or the penalty imposed.

Rape is committed under the following circumstances:

1. When a man has sexual intercourse with a woman: (a) through force, threat or intimidation; ((b) when the victim is deprived of reason or is unconscious; ((c) through fraudulent machination or grave abuse of authority; ((d) when the victim is under 12 years of age or is demented, even if none of the above conditions are present (statutory rape).

2. When any person (a man or a woman) who, under any of the above conditions, commits an act of sexual assault through oral or anal sex or by inserting an instrument or object into the anal or genital orifice of another person.

WHAT IS RAPE BY SEXUAL INTERCOURSE?

There is a contact of the male penis with the woman’s vagina.

WHAT IS RAPE BY SEXUAL ASSAULT?

It is committed by inserting a man’s penis into another person’s mouth or anal orifice; or by inserting any instrument or object into the genital or anal orifice of another person.

HOW RAPE IS COMMITTED WHEN THE OFFENDED PARTY IS A MAN?

It is committed by inserting a man’s penis into his mouth or anal orifice; or by inserting any instrument or object into his anal orifice.

HOW IS THE CRIME OF RAPE PUNISHED?

The penalty varies depending on the act itself and the circumstances surrounding it.

a) Reclusion perpetua or imprisonment from 20 years and 1 day to 40 years is imposed on the offender if rape is committed through sexual intercourse, also known as “traditional rape”.

(b) Prision mayor or imprisonment from 6 years and 1 day to 12 years is imposed on the offender if rape was committed through oral or anal sex or through the use of any object or instrument that was inserted into the mouth or anal orifice of the woman or a man, also known as “object rape” this may also be elevated to reclusion temporal (imprisonment from 12 years and 1 day to 20 years) or reclusion perpetua depending on the circumstances surrounding the crime.

IF ONE WOULD LIKE TO FILE A CASE OF RAPE, WHAT ARE THE STEPS INVOLVED AND WHAT PROCESSES WOULD THE VICTIM HAVE TO GO THROUGH?

A survivor of rape can go to the police who will give him/her a referral form to go to the medico-legal for an examination. Ideally, the victim would get the examination within 24 hours and is usually advised not take a bath between the time of the rape and of the filing of a complaint because it may destroy evidence. The medico-legal will take a swab of the mouth and the genital area of the victim and will check for injuries and bruises, and may also examine the fingernails to see if there are skin sediments of the perpetrator under the fingernails in case the victim scratched the perpetrator.

The victim is also advised to bring the soiled clothes and other garments worn from the rape incident in order to be admitted as evidence. After that, the police will take a sworn statement from the complainant which will be filed with the Prosecutor’s Office. A preliminary investigation will be conducted to establish probable cause. If probable cause is established, a warrant of arrest will be issued by the court and a trial will ensue.


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