Laws that discriminate against women

MANILA, Philippines – Under Philippine law, a woman may be accused of adultery or having sexual relations with a man that is not her husband. Adultery may be substantiated with the presentation of circumstantial evidence. However, under the same law, a man may only be accused of concubinage.

The difference? There are three and they are not limited to what happens in between the sheets.

Concubinage requires evidence to prove that a man is having sex with a woman who is not his wife under scandalous circumstances, that he is keeping the woman [with whom he is carrying on sexual relationship with] in the conjugal home or that he is cohabiting with her in another dwelling.

Concubinage requires proof while adultery may be premised on circumstance.

The Philippine Commission on Women (PCW), the government agency tasked with championing gender equality, has included the amendment of the Infidelity Law in the Women’s Priority Legislative Agenda for the 16th Congress. The PCW is also calling for the amendment or repeal of other specific provisions of the Revised Penal Code and Family Code , an amendment to the Anti-Rape Law and Anti-Sexual Harassment Law and the enactment of the Magna Carta of Workers in the Informal Economy

“Certain laws really need to be amended, either they are updated to reflect the issues of the current times or they should be repealed altogether,” said Anette Baleda, PCW Chief of the Policy Development and Advocacy Division.

Archaic and outdated

The Infidelity Law is based on the Revised Penal Code issued in 1930.

The Revised Penal Code superseded the Spanish Legal Code, which was in place from 1886-1930.

“The rationale for this [infidelity] law was to protect the lineage of the family. Women who have sexual relations with a man who is not her husband may get pregnant and bring in foreign blood to the family,” said Baleda.

“This really needs updating because in this day and age, there are modern ways of proving paternity. Also, apart from the varying definitions of infidelity, the degree of punishment also discriminate against women,” added Baleda.

Under the Revised Penal Code, the penalty for women who commit adultery ranges from 2 years, 4 months and 1 day to a maximum of 6 years. The penalty for men who commit concubinage ranges from 6 months and 1 day to a maximum of 4 years and 2 months.

A policy note issued by the PCW proposes addressing the inequalities in this law while still protecting the institution of marriage by not distinguishing between the infidelity of a man from the infidelity of a woman, imposing the same penalties for offending parties, and barring an offended party from instituting a criminal prosecution if he or she is also guilty of committing infidelity.

But a women’s rights NGO has a different view and is calling for the complete repeal on the penal provision on adultery.

“Equalizing the penalty for marital infidelity does not promote equality of women. The provision on adultery infringes on one’s right to sexuality. Moreover, in reality, the batterer-husbands are the ones who file such adultery cases to harass their wives,” said Clara Padilla, executive director of EnGendeRights.

Discriminatory

Other similar provisions in the Revised Penal Code included in the Women’s Legislative Agenda that the PCW says discriminate against women is Article 247 on Death or Physical Injuries Inflicted Under Exceptional Circumstances.

Article 247 states that if any legally married spouse who unexpectedly catches his or her spouse having sex with another and shall kill or seriously harm one or both of them shall face the penalty of destierro, which prohibits the convicted person from entering court‐designated places or a specified radius of those places.

Article 247 also makes a direct reference daughters under 18: “These rules shall be applicable, under the same circumstances, to parents with respect to their daughters under eighteen years of age, and their seducer, while the daughters are living with their parents.”

“Our recommendation is to have this provision repealed all together. The provision on daughters discriminate against women and killing is killing; people should not be allowed to take the law into their own hands,” explained Baleda.

Another provision, Article 351 on Pre-Mature Marriage prohibits women to re-marry within 301 days from the death of her husband or prior to delivery if she was pregnant at the time of his death.

“The period 301 days is roughly equivalent to the nine months of pregnancy and is again linked with protecting the lineage of the family. With the modern scientific ways we now have to prove paternity, we are recommending that this provision be repealed,” said Baleda.

Why is it taking so long?

There have been a number of laws and international agreements the Philippines has entered into promising equality and the to promotion the rights of women.

The Magna Carta of Women, which was passed in 1999 provides for the amendment or repeal of laws that are discriminatory to women, as does the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Philippine Plan for Gender-Responsive Development (PPGD).

So why is it taking so long to have these laws amended or repealed?

“Unang – una na lang, tignan natin ang hystorical composisyon ng Congress, karamihan mga lalaki. Sinasabi nga natin ng macho ang Congresso,” said Rhoda Avila, secretary-general of the Democratic Socialist Women of the Philippines (DSWP). “Pangalawa, kahit na babae ang Congressista, hindi ibi sabibin pro-women ang pananaw nya sa mga batas.” [First of all, we have to look at the historical composition of Congress; they are mostly men. We say that we have a macho Congress. Secondly, even if we have female legislators, it doesn’t mean that they are automatically pro-women.”]

DSWP is a nationwide grassroots organization that has been lobbying for policies that will women’s empowerment, women’s sexual reproductive health rights, among others.

Kung titingin mo nga, kapag ang panukalang batas ay dudulot ng kabutihan sa sambayanan, lalong lalo na sa mga kababakihan, napakahirap ito ipasa. Hindi ito ang nagiging priority ng Congresso, said Avila citing the experience of policy activists in pushing for pro-women legislation. “The amendments in the Anti-Rape Law took 10 years, the VAWC (violence against women and their children) Law, 10 years din. Ang RH Law, 14 years na kasalukuyang pa din nakabinbin sa Courte Suprema.”

But the PCW remains positive that the Women’s Legislative Agenda will be given priority in the 16th Congress.

“The PCW is optimistic that the proposed measures will be passed in the 16th Congress, especially now that the House of Representatives has 79 women legislators and the Senate with six women senators, the highest in the history of Philippine politics,” said in a released statement. –Ana P. Santos, Rappler.com