We’ve heard stories about how some people were too stunned to do anything after being raped or sexually harassed. We can’t imagine their complete disbelief, horror, and disgust. Some are traumatized.
These victims can seek and reclaim justice. But how, exactly?
We asked three lawyers for basic advice on what sexual assault and harassment victims should do: Jenny Domino, a former associate for one of the Philippines’ biggest full-service law firms before joining the International Criminal Court’s internship program in The Hague, Netherlands, has assisted in giving legal aid to defendants charged with war crimes and crimes against humanity. Kathy Panguban, a member of Gabriela National Alliance of Women and Gabriela Women’s Party, gives paralegal and counselling services to abused women and children. Kim Samson, a Filipina lawyer practicing in Singapore, Australia, and Hong Kong, handles civil and criminal proceedings.
What are the forms of sexual harassment that are prosecutable?
Jenny Domino: Sexual harassment has a particular meaning under the law. The law considers sexual harassment as that committed in the context of a work, education, or training-related environment. In such contexts, the offender exercises authority, influence, or moral ascendancy over the victim. This leaves the victim under pressure to give in to the demand, request, or sexual favor from the offender.
As such, it may be committed by an employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainer, or any other person who, having authority, influence, or moral ascendancy over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor from the other.
It does not matter whether the demand, request, or requirement for submission is accepted by the victim of the sexual harassment.
In a work-related or employment environment, sexual harassment is committed when the sexual favor is made as a condition in the hiring or in the employment, re-employment, or continued employment of the victim. It is also committed when used to grant the victim favorable compensation, terms or conditions, promotions, or privileges. Likewise, if the refusal to grant the sexual favor results in limiting, segregating, or classifying the employee in order to discriminate, deprive, or diminish employment opportunities or otherwise adversely affect said employee, then sexual harassment may also occur. It may also be committed when the refusal to grant the demand, request, or sexual favor from the offender would impair the employee’s rights or privileges under existing labor laws or if such acts would result in an intimidating, hostile, or offensive environment for the employee.
In an education or training environment, sexual harassment is committed against one who is under the care, custody, or supervision of the offender or against one whose education, training, apprenticeship, or tutorship is entrusted to the offender.
It is also committed when the sexual favor is made a condition to the giving of a passing grade, or the granting of honors and scholarships, or the payment of a stipend, allowance or other benefits, privileges, or consideration.
There is also sexual harassment when the sexual advances result in an intimidating, hostile, or offensive environment for the student, trainee, or apprentice.
Kathy Panguban: The law, as it stands, limits the prosecution of sexual harassment under aforementioned circumstances. Unequal power relation between the perpetrator and his/her victim is an essential element so the case for sexual harassment can prosper. It does not cover peer-to-peer sexual harassment, or situations where the perpetrator is a person who occupies a lower position in employment or a student and the victim is a female teacher/professor or a lady boss, or situations where the act itself is committed outside the workplace.
If someone gropes you in your commute, that act is not prosecutable?
KP: If someone gropes you in your commute, the perpetrator cannot be held liable for sexual harassment under the law, but he may be held liable for unjust vexation, in my humble opinion. The vital question to be answered for the charge of unjust vexation to prosper is whether or not the act complained of caused irritation, annoyance, or disturbance to the mind of the complaining party.
If we are to look at the elements of the crime of unjust vexation, technically this contemplates/covers the abovementioned situation. Some authors and experts in criminal law would tell us that the term “is broad enough to include any human conduct which, although not productive of some physical or material harm, would unjustifiably annoy or irritate an innocent person.” (Nolledo, Jose N., Revised Penal Code Annotated, 2001.)
What counts as rape in the law?
JD: Under our penal laws, rape can be committed by both sexes. It is committed by a man who shall have sexual intercourse with a woman under any of the following circumstances:
- Through force, threat, or intimidation;
- When the offended party is deprived of reason or otherwise unconscious;
- By means of fraudulent machination or grave abuse of authority; and
- When the offended party is under 12 years of age or is demented, even though none of the circumstances mentioned above be present.
To be prosecuted for rape, it is not necessary that there be full penetration.
As long as the penis touches the labia of the victim under the abovementioned circumstances, this is already considered rape. However, mere epidermal contact does not suffice. Neither will stroking or grazing of the organs, a slight brush or a scrape of the penis on the external layer of the victim’s vagina. There must be sufficient and convincing proof that the penis indeed touched the labias or slid into the female organ, and not merely stroked the external surface thereof, for an accused to be convicted of consummated rape.
The courts have rationalized this requirement as such: “As the labias, which are required to be ‘touched’ by the penis, are by their natural situsor location beneath the mons pubisor the vaginal surface, to touch them with the penis is to attain some degree of penetration beneath the surface, hence, the conclusion that touching the labia majora or the labia minora of the pudendum constitutes consummated rape.”
For victims under 12 years of age or if demented, rape is committed even when there is no force, threat, intimidation, deprivation of reason, fraudulent machination, or grave abuse of authority.
Rape can be committed by any person who, under any of the abovementioned circumstances, sexually assaults another by inserting his penis into another person's mouth or anal orifice, or by inserting any instrument or object into the genital or anal orifice of another person. This contemplates oral and anal penetration.
If the offender commits any lascivious act or lewd act that falls short of rape, but under the same circumstances required in rape, then the offender may be prosecuted for acts of lasciviousness under the penal code.
KP: The Anti-Rape Law, as it now stands, does not distinguish between male or female victims. Men and women can be victims or perpetrators of rape with the recognition of rape by sexual assault—that is, the insertion of any object or instrument to the genital, mouth, or anal orifice of the victim.
What should the victim do as soon as the assault or harassment happens? What institutions should the victim go to?
KP: For victims of sexual harassment, they should report the same to the Committee on Decorum and Investigation (CODI) within their workplace, schools, or training institutions. The establishment of CODI by the employer-company, school, and training administrators is provided for by law. The victims may also opt to file criminal charges for the unlawful acts of sexual harassment or independent action for damages. For criminal charges, the victim may seek the help of the women’s desk in the nearest police station.
Filing a complaint for sexual harassment with the institution/company/school’s CODI serves to address the administrative aspect of the charge, which when proven, may warrant the reprimand, suspension, or even dismissal of the said person from service depending on the institution/company/school’s rules in disciplining erring employees.
The seeking of assistance from the women’s desk should serve to facilitate the filing of a formal complaint for sexual harassment in the hopes of holding the person charged criminally liable. The filing of a sexual harassment complaint with the CODI does not in any way preclude the victim from pursuing the prosecution of his/her case and other forms of relief.
For rape victims, they should seek the aid of the women’s desk in the nearest police station to report the matter. They can also approach the University of the Philippines Women and Children Protection Unit. Victims need to undergo medico-legal examination and counseling to help them establish their case and be emotionally ready to undergo the rigors of trial.
In a medico-legal examination, the victim is examined for physical manifestations of penetration in her genitals. Usually, the medico-legal examination is done after the filing of a police report. The medico-legal certificate forms part of the documentary evidence of the private complaint to be presented before the prosecutor and before the court, if probable cause is found.
For legal services, indigent victims may approach the Public Attorneys’ Office or the Integrated Bar of the Philippines Legal Aid. They may also seek legal service from law schools under their program of giving free legal assistance.
JD: After the rape occurs, the victim should report the matter to the police. When the police receives the rape complaint, he has a duty to immediately refer the case to the prosecutor for inquest/investigation if the accused is detained. The police must also arrange for counseling and medical services for the offended party. The police is required to immediately make a report on the action taken.
The police officer and physician assigned to examine the rape victim must be of the same gender as the victim. They must ensure that only persons expressly authorized by the rape victim shall be allowed inside the room where the investigation or medical or physical examination is being conducted.
Kim Samson: For sexual assault cases, the victim should report the incident to the police as soon as possible. He or she should report it on the same day that it happened.
For sexual harassment cases, the victim should inform the perpetrator that his or her actions are unacceptable and unwelcome. The victim should not be timid. If the harassment continues, the victim should keep a log of times, places, and dates of the relevant incidents so as to prepare for the day that the victim decides to file a report or complaint to the police or HR department. Otherwise, the victim can also decide to report the incident straight away.
What if the victim doesn’t go to the police/government hospital ASAP? Will it weaken his/her case if he/she decides to file it in court?
JD: No, but there’s a period after which the victim can’t file cases anymore. For rape, it depends how severe the penalty for the act is.
The period for filing a complaint is determined by the imposable penalty. The imposable penalty in turn is determined by certain circumstances. For example, rape of a person under 12 years old may incur a harsher penalty than oral sex of an adult.
KP: Not necessarily. But it would have been best for a victim to come and speak up of the crime that was committed against her person immediately after the commission thereof.
The law provides that for rape, since it is a crime punishable by reclusión perpetua, the State has 20 years to prosecute the offender or file a criminal action from the day of discovery of the crime—from the time of the commission of the offense. In a long line of cases, the Supreme Court has pronounced that the failure of the victim to immediately report the crime of rape is not automatically an indication that the charges were fabricated.
What does it take to convince the court that the accused is guilty?
KP: Prosecution and conviction of crimes, as a general rule, require proof beyond reasonable doubt, because it is the life and liberty of the accused that are put on the line.
JD: Proof beyond reasonable doubt does not mean such a degree of proof as, excluding possibility of error, produces absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind. Without this moral certainty, the presumption of innocence that the accused enjoys prevails and the accused will be acquitted.
What counts as evidence?
KS: Evidence can be oral or written testimony, CCTV footage, witness statements, and any other tangible items such as the victim’s stained clothing for example. The three main categories of evidence are 1) testimony, 2) documentary, and 3) tangible items.
KP: For rape and other cases of gender-based abuses to prosper, the statement of the private complainant is of primary importance since these crimes usually are not committed before the public’s eye. The private complainant’s statement, together with other pieces of evidence such as, but not limited to, the medico-legal certificate, birth certificate of the private complainant if alleged to be a minor at the time of the incident, can help establish the allegations of rape and abuses.
JD: There is no requirement under the law. The usual evidentiary standards and rules of procedure apply. Moreover, in prosecutions for rape, evidence of complainant's past sexual conduct, or any opinion about his or 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.
Are there victims who decide to no longer push through with a case? If yes, can you say why?
KS: Yes, it is common for a victim in Singapore to decide not to push through with a case or even file a report. In Australia, however, there are quite a number of complaints being filed by victims. The difference in attitude could perhaps be attributed to the Asian culture of “saving face” and avoiding confrontations.
There is a tendency for victims, in whatever jurisdiction, to fear backlash from other people or any sort of consequence (such as losing one’s job or a friend) that comes with filing a complaint. The perpetrator will definitely try to turn the table around by denying everything or fabricating an alibi.
KP: It is common to witness abused victims vacillate from time to time and later on, retract their complaints against their perpetrators. For one, they fear retaliation from their perpetrators, especially if they are persons in authority, of social, political and economic stature, of moral ascendancy, or men in uniform. Secondly, they fear the scrutiny of the public’s eye where they get blamed for what happened to them, as if they consciously placed themselves in that abusive situation. For rape and sexual harassment victims, they would often be questioned as to what they were wearing at that time the alleged incident happened, why did they not resist the aggression as if the only way to prove that she did not consent to the sexual act is to physically resist the same and end up in black and blue. Lastly, the need to rekindle, in court proceedings, the memory of that eventful moment disheartens many abused women from seeking justice. It’s as if the victim gets victimized again.
If there are victims who are too traumatized or afraid to report to the authorities, is there another way for them to seek justice? Is reporting the incident truly the best thing for them to do (when they're ready, of course)?
JD: Yes, [reporting is the best thing to do] because justice is about ensuring that there's no impunity, right? But it depends on the victim. One consideration would be: Is the victim willing to go through the legal process which could take years? Others just want to forget and move on. It may be hard to forget if you are asked to recount the harrowing experience at the investigation and litigation levels. On the other hand, some victims might regret not filing charges and doing something that could right the wrong did to them. Ultimately it depends on the victim—what she wants to achieve and what would ultimately contribute to her physical and emotional rehabilitation.
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