Simultaneous and mutual act

(Part II)

Continuing from last Wednesday’s case about the issue of whether a husband can be held liable for the rape of his wife, the RTC found the straightforward testimonies of the prosecution witnesses led by Stella and her two daughters more credible than the inconsistent testimonies of Jimmy and his witness. Thus the RTC convicted Jimmy of the crime of rape on two counts and sentenced him to reclusion perpetua on each count. This was affirmed by the Court of Appeals which ruled that the physical evidence of external injuries is not indispensable to prosecute and convict a person of rape. What is necessary is that the victim was forced to have sexual intercourse. The CA also said that no wife in her right mind would accuse her husband of having raped her if it were not true.

But Jimmy still appealed to the Supreme Court and insisted that the two incidents of sexual intercourse which gave rise to the criminal charges for rape were theoretically consensual, obligatory even, because he and Stella were legally married and cohabiting couple. He argued that consent to copulation is presumed between cohabiting husband and wife unless the contrary is proved. He contended that sexual community between cohabiting husband and wife is a mutual right and obligation between husband and wife, so it should be viewed and treated differently from ordinary rape cases. Was Jimmy correct?

No. R.A. 8353 passed in 1997 reclassified rape as a crime against person and removed it from the ambit of crimes against chastity. Article 266-C thereof dealing with the effect of pardon mentions the husband as an offender in rape who can be subsequently pardoned by wife. Read together with Section 1 of the law which unqualifiedly uses the term “man”  in defining rape, it is unmistakable that said law penalizes the crime without regard to the rapist’s legal relationship with his victim. The paradigm shift on marital rape in this jurisdiction is further affirmed by R.A. 9262 which regards rape within the marriage as a form of sexual violence that may be committed by a man against his wife within or outside the family abode. Clearly, it is now acknowledged that rape, as a form of sexual violence, exists within marriage.

A husband who has sexual intercourse with his wife is not merely using a property, he is fulfilling a marital consortium with a fellow human being with dignity equal to that he accords himself. He cannot be permitted to violate this dignity by coercing her to engage in a marital act without her full and free consent.

It is true that the Family Code obligates the spouses to love one another but this rule sanctions affection and sexual intimacy, as expressions of love, that are both spontaneous and mutual and not the kind which is unilaterally exacted by force.

Further, the delicate and reverent nature of sexual intimacy between a husband and wife excludes cruelty and coercion. Sexual intimacy brings to spouses, wholeness and oneness. It is a deep sense of spiritual communion. It is a function which enlivens the hope of procreation and ensures the continuation of family relations. It is an expressive interest in each other’s feelings at a time it is needed by the other and it can go a long way in deepening marital relationship. It cannot be egoistically utilized to despoil marital union in order to advance a felonious urge for coitus by force, violence, or intimidation.

Moreover, to treat marital rape cases differently from non-marital rape cases in terms of elements that constitute the crime and in the rules for their proof, infringes on the equal protection clause. The posture advanced by Jimmy arbitrarily discriminates against married rape victims over unmarried rape victims because it withholds from the married women raped by their husbands the penal redress equally granted by law to all rape victims.

Further, a marriage license should not be viewed as a license for a husband to rape his wife with impunity. A married woman has the same right to control her own body, as does an unmarried woman. She can give or withhold her consent to a sexual intercourse with her husband and he cannot unlawfully wrestle such consent from her in case she refuses.

Lastly, the human rights of women include their right to have control over and decide freely and responsibly on matters related to their sexuality, including sexual and reproductive health, free of coercion, discrimination and violence. Women do not divest themselves of such right by contracting marriage for the simple reason that human rights are inalienable (People vs. Jumawan, G.R. 187495, April 21, 2014)

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