Days of Reckoning for Rapists
Was it rape or an extortion attempt?
For the past two months, social media has been abuzz with speculation about the Vhong Navarro-Deniece Cornejo case. He raped her, the self-described model and stylist said of the TV host and comedian. She and her friends set him up, mauled him and demanded P2 million in damages, Navarro countered.
A month or so later, a former beauty pageant contestant surfaced, similarly accusing Navarro of raping her four years ago.
But why did it take her four years to come out? And wasn’t she disqualified from the pageant allegedly because she worked for an escort service? Was she, like Cornejo, out to make a quick buck off the TV celebrity?
The questions and speculations have kept the issue on the news; they also reflect the common perceptions about rape that have persisted despite changes in the law.
Before RA. 8353, or the Anti-Rape Law of 1997, introduced amendments to the Revised Penal Code’s definition of rape, it was considered a crime against chastity. This made it easy for defendants to attack the character of their accuser, on the premise that if she were no longer chaste, she could not been raped. Such legal maneuvers also made it difficult for women to come out for fear that their past indiscretions would be dug up and exposed.
But the Anti-Rape Law of 1997 changed its definition into a “crime against persons,” which now allows anyone, from family members to police, to file a case on behalf of the victim. Prior to the revision, only victims were allowed to file and pursue cases, a powerful deterrent given the stigma attached to the crime.
According to RA 8353, rape is committed when a man has “carnal knowledge of a woman” and the victim is either forced, threatened or intimidated; unconscious or deprived of reason; under 12 years old, or demented or suffering from a mental disability, emotional disorder or physical handicap.
Unlike in the previous definition of rape, the crime is no longer limited to the male organ’s penetration of a woman’s genitalia. According to the Anti-Rape Law, rape is committed when either genitalia or an instrument or object is inserted into another person’s mouth, genitals or anal orifice. This definition of rape is also termed “sexual assault,” which now makes it possible for males to be considered rape victims.
If convicted on the first definition of rape (the use of male genitals to penetrate another person’s genitalia), the perpetrator is sentenced to “reclusion perpetua,” equivalent to 40 years’ imprisonment and the inability to run for public office.
If convicted of sexual assault, the offender’s sentence can range from “prision mayor,” or 6 to 12 years’ imprisonment, to “reclusion temporal,” or 12 to 20 years’ imprisonment.
Lawyer Katrina Legarda, who specializes in family law, said the current anti-rape law is a marked improvement from the law’s 1935 definition of the crime.
“In the olden days, you really had to defend your chastity in court at all costs,” she said, adding that before the revision, a woman’s virginal image and virtue were essential to convict a rapist.
With the inclusion of sexual assault under the new law, same-sex rape can now be tried.
Marital rape, or rape between spouses, is also punishable by law.
Seventeen years after the revised anti-rape law was enacted, the Supreme Court used it to issue “record-making,” and notable decisions on convicting rapists, according to lawyer Rowena Guanzon, a known advocate against gender discrimination.
One such landmark decision was the 1995 Supreme Court case People v. Rivera, when it stated that as long as a victim’s testimony is inherently credible, a person charged with rape can be convicted.
“When a woman says that she had been raped, she says in effect all that is necessary to show that she had indeed been raped,” the decision said.
The Supreme Court also stated in recent decisions that medical certification is no longer needed to prove rape; there was rape when the tip of the penis touches the woman’s labia (the outer folds found around either side of the vagina). Penetration, contrary to popular belief, is no longer the ultimate proof or requirement for a rape case.
According to those decisions, medical records cannot prove rape, as they cannot prove that a penis has touched the labia. Neither can it prove that a victim was forced into performing oral sex, or that a finger had grazed a victim’s private parts.
Guanzon, co-author of “The Davide Court: Its Contributions to Gender and Women’s Rights” and “Engendering the Philippine Judiciary,” also cited former Chief Justice Hilario Davide for convicting rapists in 90 out of the 103 cases under his term.
But cases that reach the Supreme Court are only a fraction of the total cases filed in the justice system. Skepticism is still present in the lower courts today despite the law, skepticism that Legarda and Guanzon, who are both prominent advocates of women’s and children’s rights, noted comes from preconceived notions and biases.
It is difficult to fully eliminate sexist biases, said Legarda.
“The bias comes from society, not just the judicial system,” she added. How judges were raised and how prosecutors view the opposite sex are just some of the factors that determine how a rape case is tried.
But while the Supreme Court readily accepts child rape as “gospel truth,” inherently siding with a child, Legarda said that “when it comes to adult rape, the woman still has to prove in the lower courts that some kind of force had been used and that she said no.”
In Cornejo’s case, such assumptions are prevalent even during the preliminary investigation. On social media alone, many have been quick to assume that Navarro could not have raped her because of his good image, her less than-pristine reputation, and the timeframe of the CCTV footage obtained by the National Bureau of Investigation.
For Guanzon, who neither supports nor defends Cornejo, none of this should matter. “I will not conclude [on the case]. But it is wrong to say that a man cannot rape a woman in three minutes,” she said, referring to the CCTV footage and the netizens’ conclusions. “How many minutes does it take a man to forcibly undress a woman… and insert his penis? In less than three minutes, it (can be) done.”
The model’s latest counter-affidavit, submitted on Feb. 21, also cited this defense.
Cornejo is not the first woman to encounter such misconceptions and difficulties in proving her case, according to the Women’s Legal Bureau (WLB), a non-government organization (NGO) that promotes women’s legal rights and trains them to become legal advocates or paralegals.
And while the WLB has suspended handling cases since the mid-2000s, its recent studies conducted separately in 2005 and 2010 on women’s access to justice for VAW crimes, show that the same legal problems from the 1990s still exist.
Today, WLB trustee and lawyer Twyla Rubin said there still exist barriers that “filter out” rape cases, reducing the actual number of cases that reach the courts.
First, the victim has to recount the rape to the women’s desk in a police station, a prosecutor, family members and a doctor, among others, before he or she can reach a judge.
Women’s desks in every police station, usually the first responders to rape, do not all have rape kits. Prosecutors, too, do not always have proper training to handle such a sensitive crime.
Then there’s the stigma and shame shared by even the victim’s family members and friends, who are bound to be saddled by guilt as they ask themselves: “What will people say about me, that I had neglected my child? How could I let it happen?”
“If the victim does not have a support group or support system when he or she files a case, most likely the case would not be pursued,” said WLB executive director Jelen Paclarin.
Legarda agreed that the lack of support is one major reason that “very few women can handle the [legal] process.” By her estimate, it can take up to ten years before a rape case is resolved, and only after the victim has relived the trauma countless times.
Even when a case reaches the courtroom, it does not guarantee smooth sailing for the victim, Rubin said. Among the barriers the victim has to hurdle are the judges’ insensitivity, as well as the small courtrooms that can be very uncomfortable for victims who have to sit very close to their attackers.
Rubin added that English and legal jargon also alienate victims and that translating these to Filipino can cause confusion during trial.
“In Filipino culture, we do not refer to private parts directly. We substitute. We say, for example, ‘Hinawakan ba niya ang flower mo (Did he/she touch your vagina)?’” she said. Such vague substitution of terms and the resulting confusion can sometimes cause the dismissal of a case.
Well-meaning efforts that are supposed to complement RA 8353 don’t always pan out, Paclarin said. A case in point is the Rape Victim Assistance and Protection Act that mandates the government, police and NGOs to collaborate in establishing rape crisis centers in every city and province. For now, that law remains an “unfunded mandate” due to lack of budget allocation, she said.
Paclarin added that such cases only highlight the discrepancy between what Philippine law states and how it is implemented.
“Even though we have a very progressive [anti-rape] law and a strong women’s movement in the country, [there is a gap] when it comes to implementation and practice,” she said. “We are not yet at a point that when a woman is raped, she thinks, ‘I will go to the police station because I can get justice.’ She still thinks, ‘If I go, will I really get justice?’ The mere fact that a woman has to think about it shows that it’s not that easy, even if the law is good.”
In fact, Filipinos need only look at how the courts handled the case of Karen Vertido, whose trial lasted eight years and resulted in an acquittal, to see how difficult it is to get through a rape trial.
On March 29, 1996, Vertido hitched a ride with her boss, former Davao City Chamber of Commerce and Industry president Jose Custodio, and another businessman after an official board meeting. After the associate was dropped off, Custodio brought Vertido to a motel and subsequently raped her, she said.
After monumental delays and a reshuffling of judges, Custodio was finally acquitted in 2005. According to sources, two major factors helped clear the man: he was a prominent Davao businessman (and therefore presumed to be of good moral character) and the fact that Vertido hardly fit the usual profile of a young and naïve rape victim.
Being a fairly accomplished career woman backfired on her, Vertido recalled in a 2001 interview with the Sunday Inquirer Magazine. When the rape happened, the media in Davao described her as being “too assertive, worldly and highly educated to have been raped.”
Recalled Vertido with a shudder: “I was called a whore, an extortionist, an adulteress, an immoral woman.”
It was only in the United Nations Committee on the Elimination of All Forms of Discrimination against Women (CEDAW) that Vertido found support and remedy. In a July 16, 2010, decision, CEDAW said the Philippines had failed to protect Vertido’s rights as a woman.
Vertido’s was the first Asian Pacific case brought to CEDAW. In its decision, CEDAW recommended further revisions to the 1997 anti-rape law to address legal roadblocks and discrimination against rape victims in the courts.
On July 1, 2013, the Gabriela party-list filed a bill in the 16th Congress seeking to revise RA 8353. The bill is pending as of this writing.
Clara Rita Padilla, founder and executive director of the NGO EnGendeRights Inc., and a consultant during the bill’s drafting, noted that in some cases that were dismissed, “the judges tended to believe the respondent over the complainant, especially on the issue of consent.”
Gabriela, Padilla, and CEDAW said that “lack of consent” should automatically constitute rape, dispelling the need for the complainant to prove that he or she was forced, threatened or intimidated.
In the earlier SIM interview, Vertido explained her lack of “tenacious resistance to prove the use of force,” a widely-accepted presumption to indicate lack of consent.
“What was foremost in my mind when I realized I was trapped in that motel room was that I had to survive. I had to live. If I were found dead in that room, who would have been able to tell my husband and my children that I did not go willingly to that motel? You try not to die, you try not to get hurt. You do everything to live.”
Lack of consent, according to CEDAW, should cover “all coercive circumstances” and not just those stated in the anti-rape law.
“We are looking for a law that should not be subject to interpretation,” Padilla said. “If you have lack of consent as a recognition of coercive circumstances, [the burden is placed] on the respondent or the accused who then has to prove that the victim actually consented to the advances, whether this was verbal or via other means.”
Included in Gabriela’s bill is the need to raise the age consent to sex from the current 12, to 15 years old.
Legarda is among those who favor this change, arguing that a 12-year-old child should not have to prove that he or she was coerced into rape for the perpetrator to be convicted.
Under the current law, statutory rape only applies to children aged 12 and below.
Guanzon said the age of consent should be raised further to18. Only in the Special Protection of Children Against Abuse, Exploitation and Discrimination Act are minors defined as children under 18 years old, and such cannot be applied to the anti-rape law.
Another suggestion is to make equal the punishment for both definitions of rape. As it stands, those convicted for sexual assault can still post bail under the current anti-rape law.
“Rape is rape, however they do it,” Guanzon said. “Inserting an object into the vagina or the rectum is just as cruel, inhuman and painful, and the victim feels just as violated as if a penis had been used.”
Fortunately, according to Guanzon, the public need not wait for Gabriela’s bill to pass to see changes in how rape is perceived. She is very optimistic, she said, because there is now more awareness about the issue.
“We (the government, private prosecutors and NGOs) are all coming from a different perspective. But there is a consensus that we can do away with this discrimination and biases against rape victims as well as the myths and stereotypes that perpetuate them,” she said.
And the change, Legarda added, may lie in the youth who are growing up in a culture that has benefitted from the increased awareness against rape stereotypes.
“The younger generation has less rigid concepts of ‘things as they should be,’” she said. “They are more willing to think that ‘anything can be.’”