The Subic Rape Case again puts the spotlight on the crime of rape. As comments on the merits of the case are not allowed, let’s just discuss the crime of rape.

Rape is governed by Article 335 of the Revised Penal Code (RPC), which was amended on 22 October 1997 by Republic Act No. 8353, also known as the “Anti-Rape Law of 1997”. Among the innovations under R.A. 8353 are the following:

1. Marital rape is impliedly recognized. Rape committed against the wife, also known as “marital rape”, is impliedly acknowledged under the new law, which provides that the subsequent forgiveness by the wife as the offended party, in case it’s the husband who is the offender, shall extinguish the criminal action or the penalty. (Article 266-C)

2. Reclassification of rape as a crime against persons. – The new law reclassified rape from crime against chastity to a crime against persons, which means that prosecution is commenced in court by the filing of an information by the public prosecutor, and no longer by a mere complaint filed by the offended party, parents, godparents or guardian.

3. Fourth mode of committing rape. – Prior to 1997, rape is considered committed by having carnal knowledge of a woman: (1) by using force or intimidation; (2) when the woman is deprived of reason or otherwise unconscious; or (3) when the woman is under twelve years of age or is demented. The new law added a fourth mode of committing rape on a woman – by fraudulent machination or grave abuse of authority.

4. Rape may now be committed against men, not only against women. Rape is committed by “any person who xxx shall commit an act of sexual assault by inserting his penis into another person’s mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person.”

5. Rape now includes acts other than penile penetration of the vaginal orifice. The provision quoted above means that, among other things, a woman may now be charged of raping another woman.

6. On statutory rape. – The new law provides that statutory rape may be committed even though none of the three other modes are present. RA 8353 provides that rape is committed by “a man who shall have carnal knowledge of a woman under any of the following circumstances:

a) Through force, threat, or intimidation;
b) When the offended party is deprived of reason or otherwise unconscious;
c) By means of fraudulent machination or grave abuse of authority; and
d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present.”

7. Kind of resistance and proof. Any physical overt act manifesting resistance against the rape in any degree from the victim is admissible as evidence of lack of consent. Tenacious resistance, however, is not required. Neither is a determined and persistent physical struggle on the part of the victim necessary. In drafting the new law, the legislators agreed that Article 266-D is intended to “soften the jurisprudence of the 1970’s” when resistance to rape was required to be tenacious. The lawmakers took note of the fact that rape victims cannot mount a physical struggle in cases where they were gripped by overpowering fear or subjugated by moral authority. Article 266-D tempered the case law requirement of physical struggle by the victim with the victim’s fear of the rapist or incapacity to give valid consent. Thus, the law now provides that resistance may be proved by any physical overt act in any degree from the offended party (People vs. Dulay).

8. Marriage extinguishes criminal liability. The new law also expressly provides (Article 266-C) that the subsequent valid marriage between the offender and the offended party shall extinguish the criminal action or the penalty imposed. However, this does not apply if the marriage is void ab initio or from the beginning.

Incidentally, the Anti-Rape Law of 1997 should be considered with R.A. 8505 (the “Rape Victim Assistance and Protection Act of 1998”), which provides for a “rape shield”. It simply means that in rape, evidence of complainant’s past sexual conduct, opinion thereof or of his/her reputation shall not be admitted unless, and only to the extent that the court finds, that such evidence is material and relevant to the case. (Sec. 6)