Sexual consent

Last week, a hearing was conducted by the Senate Committee on Public Information and Mass Media in relation to an allegation of sexual harassment in the media industry. During the hearing, a family law practitioner and women’s rights advocate stated that rape can happen even between married individuals.

Both fortunately and unfortunately, this led to some questions about one of the most intimate acts that occurs among couples. It was fortunate because it provided a public forum to discuss and clarify some novel issues about rape, especially about its expanded coverage; but it was also unfortunate in that it exposed a lamentable ignorance on the part of many of what rape really is and what it does to its victim.

There is no need to go into the exchange of opinions and comments made at the hearing, as these are freely available from other articles in social media. Let’s provide context instead on the crime of rape to contribute to the education of everyone and provide further context to the exchange.

Republic Act 8353, also known as The Anti-Rape Law of 1997, defines and enumerates when and how rape may be committed.

And here the law says it may be committed by a man who shall have carnal knowledge of a woman under any of the following circumstances: (a) through force, threat or intimidation, (b) when the offended party is deprived of reason or unconscious, (c) when committed by means of fraudulent machination or grave abuse of authority; and (d) when the victim is under 12 years of age or is demented, even if none of the above circumstances is present.

Looking at the definition, it is clear that being married to each other does not remove the qualifying factors from the picture. All four may be present between married individuals.

RA 8353 redefines rape as a public, and no longer a mere private, crime. This means a rape case may be filed by anyone, such as a relative or a policewoman, when the raped individual is unwilling or afraid or ashamed to file one.

RA 8353 also discusses the effects of a pardon. It stipulates that in case it is the legal husband who is the offender, the subsequent forgiveness given by the wife as the offended party shall extinguish the criminal action or the penalty.

It is clear from the law (which actually expanded the concept of rape found in the Revised Penal Code) that rape may indeed be committed between spouses and not just between strangers or unrelated individuals, contrary to the common misconception held by many.

This leads me to the next point, and the most important factor in ensuring there is no rape committed.

This is consent. Sexual consent, to be specific, since there are many types of consent in the law.

Sexual consent is an acknowledgement to participate in a sexual activity. Before being sexual with someone, you need to know if he or she is willing to be sexual with you, too. It’s also crucial to be transparent with your partner about what you want and don’t want during sexual activity.

Sexual consent must be freely given. It is a choice one makes without pressure, manipulation, or under the influence of drugs or alcohol. This is aligned with RA 8353. Sexual consent is never assumed by factors such as past behavior; what somebody is wearing; where someone is going; or how someone is acting. Sexual consent should always be clearly communicated and never only implied. There should be no question or doubt about whether it was given.

Silence is not consent. And lest we get carried away, it’s not just important the first time you are with someone. Couples who have had sex with one another before or even ones who’ve been together for a long time also need to consent before sex. Let me reiterate: the consent must be there each time, and this applies to married couples as well.

In closing, I wish to encourage everyone to always practice these principles in your sexual life. No, it is not easy, especially when physical urges and emotions are running high. But nothing is lost in pausing to ensure that sexual consent is present.

The issue of rape is never a trivial matter. In the Senate hearing mentioned at the beginning of this article, there were some participants who reacted with laughter to the questions tossed to the floor.

That attitude should never be present in any discussion about rape. Rape is too serious a subject to be laughed at!