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RAPE
1/12/2008 5:13:53 AM


Saturday, January 12, 2008


Law And Philosophy Matter(s)
By Atty. Emmanuel Q. Fernando
Lessons from the Jalosjos
pardon and rape



CONSENT, in rape cases, is viewed from the perspective of the accused, not of the victim. This is consistent with the doctrine of mens rea. So long as the accused had the impression that the victim consented, he is innocent in the law’s eyes. He would not be possessed of the “guilty mind” or have the requisite criminal intent.

American jurisprudence distinguishes between subjective and objective intent. In subjective intent, the actual state of the mind of the accused during rape is controlling. If he believed there was consent, he must not be pronounced guilty.

The defect in this standard, apart from the uncertainty of knowing a man’s state of mind, is its unfairness. An accused may be acquitted so long as he believed that the woman wanted sex despite her manifest objection.

Hence, objective intent, based on the standard of the reasonable man, is the accepted doctrine. Was it reasonable, given the mores and customs of the times, for the accused to infer that there was consent?

In early Philippine jurisprudence, it did not matter whether the standard of subjective or objective intent was applied. This was because of the prevailing image of the ideal woman as a Maria Clara or as being chaste and modest.

No matter how much a woman protested, it would still be reasonable for a man to infer that she consented to sex. Modesty dictated that she play coy. Many a case was won by a skillful lawyer who argued that the louder the protestations and the fiercer the resistance, the more passionate the desire and the greater the willingness. “The lady doth protest too much, methinks.”

This led feminists to urge women to “Just say No!” and to insist that “No means no!” That is understandably fair. Feminists have gone too far, however, in introducing a new standard based on the victim’s perspective.

Handling the Mike Tyson case on appeal, Harvard criminal law professor Alan Dershowitz claimed precisely that in arguing lack of criminal intent.

Tyson invited the victim, a beauty pageant candidate, on a date. She accepted. They necked in his limousine. She reluctantly agreed to go to his hotel room. Fearful that he might beat her up if she declined to have sex, she meekly resisted. Given Tyson’s celebrity status and her passiveness, it was thus reasonable for him to conclude that she consented. Yet he was convicted.

The same judicial approach of viewing consent from the women’s perspective was also mistakenly used in our own “Nicole” rape case.

Lance Corporal Daniel Smith was convicted because the prosecution showed that Nicole was drunk. This supposedly satisfied the penal provision requiring the accused to have “carnal knowledge of a woman . . . when the offended party is deprived of reason or otherwise unconscious.”

According to Judge Pozon, “(Smith) admitted sexual intercourse with complainant whom he knew was intoxicated and rendered unconscious by the accumulated effects of the different alcoholic drinks she has taken in succession at the time of the felony. She could not have consented to the bestial act of the accused.”

Philippine jurisprudence has consistently determined guilt under that provision only to victims fully asleep. The case most directly controlling is People vs. Salarza (G.R. No. 117682).

The victim woke up when Salarza began removing her panties. Believing he was her boyfriend, she allowed him to continue only to discover too late that he wasn’t. Salarza was acquitted “since the victim was only half asleep and supposedly admitted to some degree of awareness when her panties were being removed.”




Comments



Imelda Alibuyog
1/12/2008 12:50:36 PM

so that was raped with consent!

Helloooo kabsat tenkyo iti yuumaymo panangsirip idiay abongko saliwamto ti umay ta agtungtong ta,naimbag nga oras mo kabsat innak pay.




Alexander Barut
1/12/2008 3:39:19 PM

It is really difficult to understand how laws are being applied.

Hello atorni and imee





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