EGM/GPLVAW/2008/EP.12 22 August 2008 ENGLISH only United Nations Nations Unies United Nations Office on Drugs and Crime United Nations Division for the Advancement of Women Expert Group Meeting on good practices in legislation on violence against women United Nations Office at Vienna, Austria 26 to 28 May 2008 Laws on Violence against Women in the Philippines Expert Paper prepared by: Rowena V. Guanzon* Professor, University of the Philippines College of Law Steering Committee Member, Asia Cause Lawyers Network * The views expressed in this paper are those of the author and do not necessarily represent those of the United Nations. 1 EGM/GPLVAW/2008/EP.12 22 August 2008 ENGLISH only Background: Since 1995, violence against women (VAW) has captured the attention of the government and legislators in the Philippines, propelled by the demand of a growing women’s human rights movement and the Convention on the Elimination of All Forms of Discrimination Against Women, its Optional Protocol1 as well as other international conventions. The Beijing Conference on Women in 1995 heightened the demand of women’s rights advocates for laws protecting women from violence. Progressive reforms in laws protecting women was brought about by several factors beginning with the democratization process that began in the 1986 People Power Revolution after the fall of the Marcos dictatorship, the 1987 Constitution2 that has specific provisions on the rights of women and fundamental equality before the law of men and women, the increasing number of women’s organizations in the provinces with links to Metro Manila based women’s rights organizations,3 and the participation of women legislations who are becoming increasingly aware of the need for gender equality and the elimination of VAW. This period marks the contribution of women legislators who were elected in the 1988 elections and thereafter4 . Laws on VAW before the 1987 Constitution In Criminal law: 1 Ratified by the Philippine Senate on November 12, 2003. 2 The 1987 Constitution was formulated by a Constitutional Commission composed of sectoral representatives appointed by former President Corazon C. Aquino. 3 Such as Kalayaan, Pilipina, Women’s Crisis Center, Inc., SIBOL, Likhaan and Kalakasan. 4 Women legislators comprise only about 10% of total members of the House of Representatives and at present, (2008) there are only four women senators out of twelve (12). 2 EGM/GPLVAW/2008/EP.12 22 August 2008 ENGLISH only Before special laws addressing VAW were passed, women could only resort to the Revised Penal Code5 for offenses committed against them by their husbands such as physical injuries or attempted or frustrated parricide. If committed by their intimate partners, they could be charged for physical injuries, attempted or frustrated homicide, or rape. A woman could not charge her husband with rape. There was no offense of “battering,” so that the offense would fall under “physical injuries.” There was no offense called “sexual harassment,” and instead, such acts would fall under “Acts of Lasciviousness.” 6 Other forms of violence, e.g., verbal, emotional, psychological, or economic abuse (such as deprivation of support) were not punishable under the Revised Penal Code or any special law before the Anti-Violence Against Women and Their Children Act of 2004 were passed. There was no recognition of crimes against women as gender- based violence. Rape was classified as a “crime against chastity,” until it was amended as a “crime against persons.” Its classification as a crime against chastity reflected the gender bias against women and stereotyping about rape, which required women to prove in court that they were chaste or “virgins” so that the judges could believe that they were indeed raped, even though “chastity” is not an element of the crime. In Civil Law: Before the Family Code of the Philippines (August 1988), there were provisions in New Civil Code that treated the wife as a subordinate subject of the 5 Enacted on January 1, 1932 6 Punishable with imprisonment of 6 months and 1 day to 6 years. For offenses with penalty of less than (6) years imprisonment, the first –time offender can apply for probation and avoid imprisonment. 3 EGM/GPLVAW/2008/EP.12 22 August 2008 ENGLISH only husband. For example, the husband was the sole administrator of the conjugal partnership. Under the Family Code, the husband and the wife now have joint administration of the conjugal or community property. In reality, the husband controls the conjugal or community property, although the law provides that in case of disagreement, the husband’s decision shall prevail but the wife can go to court to void the contract entered into by the husband within five (5) years from his action7 . Battered women have no easy recourse because there is no divorce law in the Philippines.8 Instead, the Family Code provides for “psychological incapacity” as the only ground for nullity of marriage.9 It provides for legal separation on the grounds of repeated physical abuse, grossly abusive conduct, abandonment for at least one year and attempt on the life of the spouse. A woman has to prove physical abuse committed at least two times before she can be granted legal separation and forfeit the share in the conjugal or community property of the guilty husband in favor of common children. The 1987 Constitution There are provisions on women in the 1987 Constitution which were absent in the previous Constitution. These, as well as UN Conventions, are the basis for the special laws protecting the rights of women. They are as follows: ART II. Declaration of State Principles and State Policies PRINCIPLES 7 FAMILY CODE OF THE PHILIPPINES, Art. 124. 8 The Philippines is the only country in Asia that has no divorce law, and the only other country aside from Malta that has no divorce law all over the world. 9 Art. 36 of the Family Code of the Philippines was patterned after Art. 39 of the Cannon Law. 4 EGM/GPLVAW/2008/EP.12 22 August 2008 ENGLISH only Sec. 2. The Philippines renounces war as an instrument of national policy, and adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. STATE POLICIES Sec. 11. The State values the dignity of every human person and guarantees full respect for human rights. Sec. 14. The State recognizes the role of women in nation- building, and shall ensure the fundamental equality before the law of women and men. 5 EGM/GPLVAW/2008/EP.12 22 August 2008 ENGLISH only ART XIII Social Justice and Human Rights Sec. 14 The State shall protect working women by providing safe and healthful working conditions, taking into account their maternal functions, and such facilities and opportunities that will enhance their welfare and enable them to realize their full potential in the service of the nation. Laws on Violence Against Women (VAW) Since 1995 there are six (6) laws on VAW in the Philippines, and a Family Courts Act10 that provides for the jurisdiction of Family Courts in cases involving domestic violence, violence against women, and cases wherein the complainant or defendant is a child. These are the Anti-Sexual Harassment Act of 1995, the Anti-Rape Act of 1997, the Rape Victims Assistance Act, An Act Declaring Unlawful the Matching of Filipino Mail Order Brides to Foreigners, Anti- Trafficking in Persons Act of 2003, and Anti-Violence Against Women and Their Children Act of 2004. 10 Republic Act No.8369, (1997). 6 EGM/GPLVAW/2008/EP.12 22 August 2008 ENGLISH only The Anti –Sexual Harassment Act of 1995 or Republic Act No. 7877 (February 14,1995) The Anti-Sexual Harassment Act of 1995 covers work, education or training-related sexual harassment. It requires employers in the public and private sector to create a committee on decorum and investigation of cases on sexual harassment, and to promulgate policies and rules on sexual harassment. However, it has a restricted definition of the offense, which requires that the offender has to have authority, influence or moral ascendancy over the victim, thus excluding peer sexual harassment. The penalty of imprisonment of one month to six months or a fine or both fine and imprisonment is too light and does not deter offenders. Because the penalty is less than six years imprisonment, a first-time offender can escape jail term by applying for probation. The Civil Service Commission has a more progressive Administrative Disciplinary Rules on Sexual Harassment (hereafter referred to as the “Administrative Disciplinary Rule”) which applies to all officials in government, including presidential appointees and elective officials, state colleges and universities, including government–owned or controlled corporations. This Administrative Disciplinary Rule defines sexual harassment as “an act, or a series of acts, involving any unwelcome sexual advance, request or demand for a sexual favor, or other verbal or physical behavior of a sexual nature, committed by a government employee or official in a work-related training or education related environment of the person complained of.” It includes sexual harassment by a peer, by a person of lower rank, or of the same sex. It provides a procedure which is easy to use, and imposes appropriate penalties for grave, less grave, and light offenses, ranging from suspension to dismissal. 7 EGM/GPLVAW/2008/EP.12 22 August 2008 ENGLISH only The Supreme Court also has its administrative rule on sexual harassment covering all employees but excluding judges. The latter are covered by the New Code of Conduct for the Judiciary. The Supreme Court has dismissed judges who were found guilty of sexual harassment.