Opinion: How Sexist Are Our Laws?

How Sexist Are Our Laws

 

“The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.”
—Article II, Section 14, 1987 Constitution

One troubling aspect of the country’s legal approach to sex work is how the Revised Penal Code genderizes the activity. Republic Act 10158, passed in 2012 to amend Article 202 of the Revised Penal Code, retained the decades-old definition of prostitutes as “women who, for money or profit, habitually engage in sexual intercourse or lascivious conduct […]”1 Following this definition, a man who peddles sexual acts for profit is, in effect, invisible to the eyes of the law and therefore immune to punishment.

Criminalizing the activity is one thing but confining the operational definition of the actors as only being women raises serious questions about how our laws treat Filipino women.

Criminalizing the activity is one thing but confining the operational definition of the actors as only being women raises serious questions about how our laws treat Filipino women. 

Filipino Women and the Law: The Case of People v. Genosa

After a long day at work on November 15, 1995, Marivic Genosa, mother of two and eight months pregnant at the time, went home only to find out that her husband wasn’t there. It was payday. Hours later and after what would be the last of countless episodes of violence between the spouses, Marivic killed her husband while he was asleep.2 

Almost nine years later, in what was to be the landmark case People v. Genosa, the Supreme Court en banc brought up in its decision what it deemed a “novel theory”3—the “Battered Woman Syndrome” or BWS—by citing Canadian jurisprudence for the first time ever. Prior to this case, BWS as a form of self-defense had not been recognized under Philippine law.4

Unfortunately for Marivic, the Court held that she was not suffering from BWS. The Court only qualified Marivic as suffering from psychological paralysis brought about by episodic violence from her husband, entitling her to the mitigating factors under paragraphs 9 and 10 of Article 13 of the Revised Penal Code.5 

In her dissent, Justice Consuelo Ynares-Santiago argued that Marivic was indeed suffering from BWS and should have been afforded the benefits of the defense. Justice Ynares-Santiago was joined by three other justices in voting to acquit Marivic. Ten members of the Court, however, voted to affirm the lower court’s decision, ruling that Marivic was guilty beyond reasonable doubt for the crime of parricide.6 

The Genosa case illustrates how important it is to keep our laws relevant to the ever-changing social, cultural, and political milieux.

This decision sparked a turning point for a broader examination of women’s rights in the country. Just a few months after the Supreme Court decision in the Genosa case, Congress passed Republic Act No. 9262 or the Anti-Violence Against Women and Their Children Act of 2004. The law grants, among other provisions, that “victim-survivors who are found by the courts to be suffering from battered women syndrome do not incur any criminal and civil liability notwithstanding the absence of any of the elements for justifying circumstances of self-defense under the Revised Penal Code.”7

The Genosa case illustrates how important it is to keep legislation and our laws relevant to the ever-changing social, cultural, and political milieux. By acknowledging that the ideas of rights and liberties are as dynamic as the human spirit, justice becomes more just and more inclusive—regardless of an individual’s belief, affiliation, and gender. 

Closing the Gender Gap

In its latest Global Gender Gap Report, the World Economic Forum (WEF) ranked the Philippines as the seventh most gender-equal society among 144 countries, outranking all its neighbors in the Asia-Pacific region. The WEF estimates the gender gap index in each country by taking into account four fundamental subindices: economic participation and opportunity, educational attainment, health and survival, and political empowerment. The Philippines maintained its ranking from the previous year “despite a slight decline in its overall score.8

According to the report, while the Philippines continues to garner high scores in educational attainment and in health and survival, the slight decline in overall score is attributed to lower scores in economic participation and opportunity and in political empowerment—specifically due to fewer female legislators, senior officials, and managers.9 

A closer look at the WEF report would indeed reveal that the Philippines still has a long way to go in closing the gender gap despite the relatively high indexes. Although using different methodologies and measurements, these observations would validate the findings of the United Nations Development Programme’s (UNDP) 2015 Human Development Report. 

While the UNDP report includes the Philippines among the countries with the highest Gender Development Index values, it also pegs the Gender Inequality Index of the Philippines at 0.420 or 89th among 188 states and territories. The former index pertains to the ratio of female to male Human Development Index values, while the latter refers to the “composite measure reflecting inequality in achievement between women and men in three dimensions: reproductive health, empowerment, and the labour market.”10 

Towards Gender-equal Legislation

These indices paint a relatively positive, if guarded, outlook for gender equality in the country. What is even more apparent, however, is the need for more gender-progressive legislation like RA 9262. After all, the 1987 Constitution explicitly declares that “the State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.”11 

One crucial step in this direction is the passage of Republic Act No. 9710 or the Magna Carta of Women. Enacted in 2009, it builds on and affirms the constitutional mandate. It provides that “the State shall take steps to review and, when necessary, amend and/or repeal existing laws that are discriminatory to women.”12

This piece of legislation has already led to further legislative reforms toward making the justice system not just more accessible to all, but also more even-handed and fair regardless of an individual’s gender. One such change is the repeal of Article 351 of the Revised Penal Code through the passage of Republic Act No. 10655. Passed in 2015, the law decriminalized the act of “premature marriage” in the Philippines.13 Until its repeal, Article 351 considers “any widow who shall marry within three hundred and one days from the date of the death of her husband, or before having delivered if she shall have been pregnant at the time of his death” as a felon under the law.14 

Even more promising, the Philippine Commission on Women (PCW), the primary policy-making and coordinating government agency for women’s issues and gender equality, launched the Women’s Priority Legislative Agenda (WPLA), “a set of proposed topics of bills that seeks to amend or repeal the discriminatory provisions of existing laws and moves for the formulation and adoption of new legislations that promote women’s empowerment and gender equality.”15 Included in the WPLA is strengthening the amendments on the Anti-Rape Law (Republic Act No. 8353), as well as either amending or repealing certain provisions of the Revised Penal Code including those on prostitution (Articles 202 and 341), adultery and concubinage (Articles 333 and 334), and upholding the right to life and security of spouses and daughters (Article 247).16

Under the law, a married woman may be convicted of adultery for a single act of sexual intercourse with a man who is not her husband.

Lawmakers are now seeking to amend or repeal certain provisions viewed as discriminatory against women. House Bill No. 101 for instance, seeks to repeal the provisions on adultery and concubinage (Articles 333 and 334). Under the law, a married woman may be convicted of adultery for a single act of sexual intercourse with a man who is not her husband. Once found guilty, the adulteress and her lover may face up to six years of prison time.17 In its current form, however, the law is more permissive and benign for men. A married man may be found guilty of concubinage if found to have been either keeping a mistress in a conjugal dwelling, having sexual intercourse under scandalous circumstances with a woman who is not his wife, or cohabiting with her in any other place. The guilty husband may face up to four years and one day in prison, while the concubine is merely banished through destierro.18

In the explanatory note for HB 101, Gabriela party-list representatives Emmi A. de Jesus and Arlene D. Brosas note that in practice, Articles 333 and 334 are often utilized as “bargaining suits” to get the erring party to “cooperate” in petitions for nullity of marriage or for support negotiations. They further explain that “these suits, while pursued in the initial stages, are often withdrawn or dismissed. Worse, separated or abandoned wives, who have no remedy under the law in the absence of a divorce law, are always under a constant threat of suit from their estranged husbands through Article 333 of the RPC and while they also have a ground to file under Article 334, they face the difficulty of proving the crime due to the inherent difficulty in the standards set by the law.” They also note that in numerous cases, women facing such threats are then forced to forego claims in custodial proceedings for their children as well as proceedings involving conjugal properties.19

Blind Spots and Perspective Gaps 

These proposed policy measures suggest that there is an increasing acknowledgment among our legislators of the need for gender fairness and equality in our laws. However, there remain blind spots and perspective gaps in the ways gender-based legislative reforms are approached. 

Take for instance House Bill Nos. 98 and 1172, both of which seek to repeal provisions in the Revised Penal Code on prostitution (Articles 202 and 341), addressing both the criminalized nature of being a prostitute and the gender bias in the RPC’s definition of it. While progressive on the surface, these proposed measures fall prey to the dominant narrative that prostitutes are automatically exploited and are without agency. For example, HB 98’s explanatory note announces that “women in prostitution are powerless,”20 while HB 1172 states its intent to change the public’s view of prostitutes from criminals to “victims of the system.”21 Note that both measures come from progressive and feminist legislators—Gabriela Women’s Party representatives Emmi A. De Jesus and Arlene D. Brosas are the authors of HB 98 while former Senator and now Taguig representative Pia S. Cayetano is the author of HB 1172.

These policy positions reveal a lack of nuance in exploring the issue of prostitution, specifically, and of women’s rights, generally. In her book The Invisible Woman: Gender, Crime, and Justice, Joanne Belknap acknowledged the “invisibility” of women and girls in the study of crime. She explains that “studies with male-only samples rarely identified this in the title, while studies with female-only or female and male samples almost consistently reflected this in their titles.” Belknap also noted “the growing documentation that women prisoners have disproportionately high records of victimization, usually, incest, rape, and battering, before their incarceration.”22 These findings, however, rarely factor in the lawmaking process.

Overcoming these blind spots in policymaking would require meaningful participation of all stakeholders, specifically women. Our policymakers need to make sure that the Filipina is heard before she is legislated. Her experiences, her body, her choices, and her fears need to be made visible and understood. 

FOOTNOTES

1Philippines. Office of the President. Republic Act No. 10158. Official Gazette, 27 Mar 2012. Web. 10 Oct. 2016

2PEOPLE OF THE PHILIPPINES, appellee, vs. MARIVIC GENOSA, appellant. Supreme Court of the Philippines. 15 Jan. 2004. SC.Judiciary.gov. Supreme Court of the Philippines, n.d. Web. 15 Nov. 2016.

3Ibid. 

4Ibid.

5Philippines. Office of the President. Act No. 3815, s. 1930. Official Gazette, 8 Dec. 1930. Web. 15 Nov. 2016

6PEOPLE OF THE PHILIPPINES, appellee, vs. MARIVIC GENOSA, appellant. Supreme Court of the Philippines. 15 Jan. 2004. SC.Judiciary.gov. Supreme Court of the Philippines, n.d. Web. 15 Nov. 2016.

7Philippines. Arellano Law Foundation. Republic Act No. 9262. The LawPhil Project, 8 Mar 2004. Web. 15 Nov. 2016

8The Global Gender Gap Report 2016. Rep. World Economic Forum, 25 Oct. 2016. Web. 31 Oct. 2016

9Ibid.

10Human Development Report 2015: Work for Human Development. Rep. United Nations Development Programme, 14 Dec. 2015. Web. 31 Oct. 2016

11Philippines. Office of the President. Official Gazette. The Constitution of the Republic of the Philippines. Official Gazette, n.d. Web. 31 Oct. 2016.

12Philippines. Office of the President. Republic Act No. 9710. Official Gazette, 14 Aug. 2009. Web. 15 Nov. 2016

13Philippines. Office of the President. Republic Act No. 10655. Official Gazette, 13 Mar. 2015. Web. 15 Nov. 2016

14Ibid.

15"Women's Priority Legislative Agenda." PCW.gov.ph. Philippine Commission on Women, n.d. Web. 15 Nov. 2016.

16Ibid.

17Philippines. Office of the President. Act No. 3815, s. 1930. Official Gazette, 8 Dec. 1930. Web. 15 Nov. 2016

18Ibid.

19An Act Decriminalizing Adultery and Concubinage, Amending for this Purpose Articles 333 and 334 of the Revised Penal Code, H.B. 101, 17th Cong. (2016). Web. 31 Oct. 2016

20An Act Repealing Articles 202 and 341 of the Revised Penal Code and Instituting a System of Protection for Victims of Prostitution, H.B. 98, 17th Cong. (2016). Web. 31 Oct. 2016

21An Act Addressing the System of Prostitution, Imposing Penalties on Its Perpetrators, Providing Protective Measures and Support Services for Its Victims, Repealing for the Purpose Article 202 and 341 of the Penal Code, H.B. 1172, 17th Cong. (2016). Web. 31 Oct. 2016

22Belknap, Joanne. The Invisible Woman: Gender, Crime, and Justice. 4th ed. Connecticut: Cengage Learning, 2014. Print.

GO BACK
Change the conversation
ABOUT US
OPPORTUNITIES
COMMISION
DONATE
EVENTS & ANNOUNCEMENTS
PAMPUBLIKO X SEX WORK