By Carolina S. Ruiz Austria

The word "Heresy"

was used by Irenaeus in Contra Haereses to discredit his opponents in the early Christian Church. It has no purely objective meaning without an authoritative system of dogma.

Monday, June 05, 2006

Of Legal Defenses (and Offenses) in Rape Trials: A Deconstruction

By Carolina S. Ruiz Austria, Senior Lecturer UP College of Law

"Naughty," and "Notorious," were descriptive words, which reportedly figured from the side of the defense in the recently concluded hearing of the Subic rape case, where two prosecution witnesses testified and in turn, were cross-examined.

The two words, "naughty," and "notorious," were used by the defense purportedly to describe the Neptune bar (and similar places like it) because it employs "hospitality girls," and offers VIP rooms.

Not surprisingly, the first move on the part of the defense is to allude to some image and character of "sexual immorality," on the part of the accusing complainant. Indeed, the defense lawyers lost no time framing the issue of rape in the manner it has been framed for so many (hundreds?) of years: "as an issue of female chastity." Notable as well is the source of this standard but we will come back to this later.

In current black letter law, that is, the literal text of the provisions of rape law, neither sexual inexperience nor the possession of some form of reputation of inexperience ( a.k.a "virginity") is an element, nor a legal pre-condition for the crime of rape. In fact, the set of amendments to the rape law contained a "rape shield" provision, which discourages the defense from making inquiries into the victim's sexual history.

The 1997 amendments to the rape law, which transposed the crime rape to the title of crimes against persons (removing it from its earlier classification as a crime against chastity) was also another move in this direction to literally re-frame rape as a crime against a person (women mostly), and not a crime only if the woman proved chaste under a given set of standards.

Yet the rape defense (that is primarily based on a notion of "unworthiness" on the part of women and girl victims lacking in a standard of "virtue" foisted upon us by religious edict) --- persists. Why the defense even managed to tote along a religious "symbol" that so powerfully evokes their "line" and "standards" of framing rape as chastity: a Catholic priest. (Not just a Catholic priest, but rather THE Father James Reuter).

Chastity Unpacked

One irony in most rape cases that goes unnoticed is the possibility that defense lawyers might actually believe (in all seriousness) that their clients are not guilty (or less guilty for "having sex," but not rape) because the victim consented to a date, drinks and in some cases, flirting or even heavy petting.

This is the reason why among rape cases, date rapes and marital rapes are the most likely not to be believed.

Therein of course lies the rub: if a woman has consented before with the same man (or even the same men), how can we be so sure that this particular time was against her will ? The answer of course is simple enough: she tells us so. She would know if something is with or without her consent, wouldn't she?

A good friend and former client who has had her own share of the sexism that law is capable of dishing out, told me once: "Having decided in the past how and when and with whom I want to sleep with, how can anybody doubt that I would know when it is something and someone I DO NOT WANT? "

But this of course isn't the way legal institutions work. Heck it isn't even the way most Filipinos think (Not yet anyway.)

"Chastity" of course as a legal (often mythical) standard is fully entrenched in legal institutions (even as it is also a long-standing cultural and religious norm). From the highly questionable manner and mode of using "medico-legal" evidence to purportedly prove or disprove rape, or worse the existence or inexistence of a hymen (whether intact or broken), right down to the attacks on credibility of a rape victim via her manner of dress, the amount of drinks she had as well as sexual history, "chastity," gets peddled as scientific, demonstrable and physical fact.

Reeducating Lawyers about Hymens

One passionate colleague in the advocacy for women’s rights took it upon herself to attempt reeducating the Judge in one of her rape cases by presenting as expert witnesses, a doctor from the Women and Children’s protection unit at the UP-PGH.

Her witness clarified and effectively debunked several legal myths around medical evidence in rape. First of all, the legal (and popularly held) belief (and that is all it is---a belief) that only so-called virgins have “HYMENS.” Medically speaking, the hymen is in fact tissue which is elastic. Elasticity also varies (apparently) and different women are differently elastic as it turns out. While there is every possibility of tearing during an initial vaginal penetration, or even a particularly vigorous or violent type of penetration, there is also a possibility that tearing may not always occur.

Second, the nature of vaginal lacerations and how they heal, is often affected by the circumstances of age and sexual experience or even frequency of contact. Children in fact heal better and faster than adults. Add to this the fact that a physical medico-legal examination for “injuries” or “lacerations,” in rape is at best only useful when the examination is done immediately after the fact of rape.

To this of course, the judge responded by at first refusing to change his mind about the nature of medico-legal evidence in rape. He even insisted that this was not the way he learned about these things in law school (which turned out to be over 50 years ago) and that “when a hymen is broken, not even ten angels from heaven could bring it back.” (Yes, he said that. According to my advocate friend, that is a direct quote)

And indeed, it is not so uncommon to hear about rape complaints being dismissed by prosecutors for allegedly lacking medico-legal evidence of rape. To this date, even as there are Supreme Court decisions already clear that medico-legal evidence is not an absolute necessity in rape cases, legal practitioners tend to equate such evidence as the “physical proof of rape” often even to the point of privileging it over the women’s testimony.

Yet what can physical evidence actually prove? If there is DNA available and DNA testing is utilized, it can prove substantial in terms of proving the identity of the rapist.

Yet DNA evidence is hardly ever what is presented in most rape cases by way of medico-legal reports. Instead, the report focuses on lacerations, signs of trauma (hematomas and welts or bruising). On the level of legal logic, such evidence is corroborating evidence which tends to establish the presence of force and penetration.

In fact, not all rapes produce welting or bruising. From our experience of handling cases involving young girl victims, experienced child abusers take extra effort not to leave telltale signs of abuse by managing to gratify themselves sexually through other things apart from penile penetration of the victim’s vagina.

Rape isn’t sex

"Judicial depiction of consummated rape has not been confined to the oft-quoted "touching of the female organ,"but has also progressed into being described as "the introduction of the male organ into the labia of the pudendum," or "the bombardment of the drawbridge." But, to our mild, the case at bar merely constitutes a "shelling of the castle of orgasmic potency," or as earlier stated, a "strafing of the citadel of passion."

Supreme Court Decision by Justice Bellosillo, People vs.Campuhan, G.R. No. 129433 March 30, 2000

But rape isn’t just about penetration neither is it about penile penetration. This is another branch altogether of the classic rape defense founded on the "chastity" pre-requisite. (Too) Often, defense lawyers will raise in defense, the lack of semen, the inability of the accused to ejaculate, or even the inability of the accused to sustain an erection to deny rape.

Again, when the rape law was being deliberated in Congress, one of the more controversial provisions proved to be that of the inclusion of non-penile penetration as sexual assault within rape law. Opponents in Congress raised issue on the provision (no doubt the lot of them were lawyers) because they could not abandon the legal standard of rape as it has always been framed, according to the experience of rape from the point of view of the apparent rapist.

Literally, when the rape lawyer’s defense raises the issue of the lack of semen (no ejaculation) or even the accused man’s inability to sustain an erection, we are drawn to look at the rape not only from the point of view of the perpetrator, but also asked to look at rape as sex.

Indeed, to the rapist, it looks like sex and to him, probably feels like the sex he expects and which is why rapists, for their defense, claim consent. Now if the rapist for some reason fails to "have sex," even if the victim has just experienced rape, guess whose experience of the violation is believed?

In one very popular Supreme Court case, the court even reduced liability in a rape case (modifying it to attempted rape)when it found no proof of "penetration," or evidence that the "touching" of the penis and labia was done "in the act of penetration," and even going as far to refer to the act as a "mere strafing of the citadel of passion." [People vs. Campuhan Y Bello, G.R. No. 129433 March 30, 2000]

The victim was a four-year old girl and it was her mother who testified having seen the rapist (his pants down, around his legs)and his hand on his penis, stradling her daughter whose jogging pants were removed.

Noting the prosecution's "failure" to even establish that the assailant has an erection or that the witness (mother) actually saw his penis and that it touched the child's vagina, alongside that of the lack of physical evidence of "injury," the court found it wasn't rape but only an attempted rape.

The four-year old of course testified that she did not like what happened to her and that she was shouting for him to stop. Having no notions of penetration or even rape itself, she could not categorically answer whether the rapist's penis touched her vagina.

At one point she said yes there was touching but when asked if there was penetration, she said no.At this point, the court turned to the "physical evidence," and despite the medical facts earlier noted, it continued to privilege so-called medical evidence (over testimonies of the witnesses) as factual basis to make a conclusive finding of whether rape did or did not occur!

Again, the broken (lacerated) hymen requisite, the erect penis touching the labia in the context and act of penetration (not just mere strafing or shelling!), right down to the attacks on the credibility of victims through an inquiry into sexual history, all point to the construction (or conception) of "rape" from the viewpoint of ANYBODY but the victim.

The Harm/Injury in Rape

To the victim, rape isn't "sex." It is clearly an act of violence although "sexual" in form and most certainly, it is sexual from the point of view of the rapist who seeks sexual gratification through dominance and violence.

Clearly, when law,legal standards (and lawyers) quibble over lacerated hymens ejaculated semen and erect penises, they do so because the harm or injury in rape is still commonly understood as a "loss" of innocence, virginity, or good reputation, on the part of the woman and not really because her will and bodily integrity were violated.

In fact, the earliest rape laws framed injury and loss in rape as that of the father's or husband's loss (akin to a depreciation of property!)

Often we have seen how even the families and friends of rape victims have attempted to "marry off" young girls to their rapists to allegedly "save" her reputation.


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