Published 28 March 2022, The Daily Tribune

Rape is an inherently violent crime that typically results in physical, social, emotional, and psychological harm. It remains one of the most heinous crimes that can be committed, a prevalent problem not just in the Philippines but throughout the world.

Republic Act (RA) 8353, otherwise known as the Anti-Rape Law of 1997, expanded the definition of the crime of rape in the Revised Penal Code (RPC) and reclassified it as a crime against persons instead of as a crime against chastity. As a crime against persons, the law no longer considers rape as a private crime. Thus, anyone who knows of the crime may file a case on the victim’s behalf, and prosecution may continue even if the victim decides to forgive the offender and/or decide not to pursue the complaint.

RA 11648, an act providing for stronger protection against rape and sexual exploitation and abuse, amended RA 8353 of 1997 by raising the age of sexual consent from 12 to 16 years to further shield minors from rape and other acts of sexual abuse.

Age of consent finds relevance in light of the principle that a person of tender age is presumed not to possess discernment and is incapable of giving intelligent consent to sexual act. In People of the Philippines vs Quinagoran, the Supreme Court ruled that “mere sexual congress with a woman below 12 years of age consummates the crime of statutory rape regardless of her consent to the act or the lack of it.”

In this case, even the absence of struggle or outcry of the victim or even her passive submission to the sexual act will not mitigate nor absolve the accused from liability. Thus, carnal knowledge of a child below 12 years old, under the old laws, is considered rape despite the child’s ostensible giving of consent to the act.

In simpler terms, the general rule now is that a person under 16 years of age, or a person who has not yet celebrated his or her 16th birthday, cannot validly give consent to sexual activities, such that any person who has any form of sexual relations with the former can be charged with rape.

Children are thus protected from being sexually abused and exploited by removing the defense of consensuality usually raised by the offender in such cases. Indeed, it is difficult to see how a minor who is not even old enough to consent to a contract, or to marriage, can validly consent to sexual intercourse and other sexual acts without raising suspicion as to the freedom, voluntariness, and intelligence of such consent.

The law provides harsher penalties for qualified seduction, child trafficking when the victim is under 16 years old, and obscene publications using a child (below 18 years old) as a performer, subject or seller/distributor. Minors are protected from other acts of neglect, abuse, cruelty or exploitation prejudicial to their development.

As such, any person who shall keep or have in his company a minor 16 years of age or under, or who is 10 years or more his junior in a surreptitious place such as a hotel, motel, beer joint, and the likes can be prosecuted under the law, except where there is any recognized bond or duty performed.

On the other hand, there shall be no criminal liability on the part of a person having sexual intercourse with another person under 16 years old but not younger than 13 years old when their age difference is not more than three years and the sexual act in question is proven to be consensual, non-abusive, and non-exploitative. Non-abusive means the absence of undue influence, intimidation, fraudulent machinations, coercion, or injury or maltreatment. Non-exploitative means there is no unfair taking advantage of the child’s position of vulnerability, differential power, or trust.

Because education is key, the Department of Education must include age-appropriate subjects concerning the rights and protection of the children in its basic curriculum.

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