In Marital Sex, Consent Is Clear—"No Means No," Reminds Attorney

Trigger warning: Mentions of rape, sexual abuse

On Thursday, August 15, 2024, Atty. Lorna Kapunan lectured Senator Robin Padilla on the issue of marital rape during the Senate Committee on Public Information and Mass Media’s ongoing hearing on sexual harassment in the media industry.

ALSO READ: According to the Law: Rape and Marital Rape

"Paano kung sabi ng asawa, 'Masakit ang ulo ko, ayaw ko,' pinuwersa ng husband 'yung babae to have sex? Is that rape? Ang sagot po, yes," Atty. Kapunan told the panel.

Senator Padilla questioned whether the traditional notion that spouses are obligated to meet their partner's sexual demands still applies.

"Pag sinabing no, no means no. (It) applies to both genders. Hindi siya pwede iforce ng asawa," Kapunan firmly responded, highlighting the importance of consent.

When Padilla probed for solutions to satisfy a spouse's sexual urges, questioning whether it could justify infidelity, the family and women's rights lawyer replied that it is a psychosocial issue rather than a legal one.

Kapunan noted that sometimes, intoxicated or drugged individuals might resort to violence if their sexual advances are rejected. Padilla inquired, "Out of ano lang po, urge. Nandyan asawa mo to serve you, ayaw niya. [Anong gagawin] para 'di ako mareklamo ng asawa ko? Anong pwede kong sabihin sa kanya?"

Atty. Kapunan’s response was to the point: "Kailangan po ng counseling o magdasal na lang kayo. […] Manood po kayo ng Netflix, Korean telenovela."

Kapunan further clarified that serving one's partner is not an obligation. "We amended the Family Code to remove the obligation of obedience. That’s why mutual respect is crucial. If your spouse refuses, whether valid or not, we must respect their decision," she stated.

Marital Rape

Marital rape is defined as "forcible sexual assault or violence by one spouse towards the other," meaning it's engaging in sexual activity with a spouse without their consent.

Historically, many societies, much like Sen. Padilla’s perspective, regarded sexual relations between married couples as a "right." But there has been a growing recognition of the importance of consent within marriage, placing it on par with non-marital relationships.

Despite this progress, marital rape has often lingered in a legal gray area, outside the reach of criminal law and widely tolerated despite the severe consequences of forced sexual encounters.

Anti-Rape Law in the Philippines

The country's Anti-Rape Law of 1997 emphasizes that rape also violates an individual's well-being, not just merely their virginity or purity. Under this law, anyone can be a victim of rape, regardless of their sexual history—whether they are a "prostituted" person, a non-virgin, or someone with an active sexual life.

Additionally, the law states that rape occurs when a person engages in sexual intercourse with a victim under any of the following circumstances: by force, threat, or intimidation; when the victim is unconscious or incapacitated; through deceit or abuse of authority; or when the victim is under 12 years old or demented, regardless of other factors.

Marital rape is mostly experienced by women, but not exclusively. The ongoing hearings by the Senate Committee on Public Information and Mass Media are investigating complaints of abuse and sexual harassment involving Sandro Muhlach, a young actor. Muhlach has pressed charges against his network's independent contractors for sexual abuse.

Rape penalties vary by the offense. Sexual intercourse leads to Reclusion Perpetua (20 to 40 years). Rape involving oral or anal sex, or the use of objects, results in Prision Mayor (6 to 12 years). Depending on circumstances, the penalty may be increased to Reclusion Temporal (12 to 20 years) or Reclusion Perpetua.

Marital Rape Cases in the Philippines

In the Philippines, the 2022 National Demographic and Health Survey found that 2.3% of women experienced sexual violence from their partners, with the highest rates in Bicol, Ilocos, and Mimaropa regions.

But many cases go unreported, and victims often never reach the courtroom. The legal system tends to prioritize "righteous victim" cases—those involving strangers, weapons, and visible resistance. Unfortunately, victims who know their assailant often face skepticism and complex legal challenges. Proving resistance without visible injuries and distinguishing between regret and non-consent make securing a conviction particularly difficult.

Atty. Kapunan left a reminder, "Wag natin i-trivialize yung crime ng rape. Wag tayo magpilosopo kasi seryoso po yung allegations of rape. Even in this law, life imprisonment 'yan lalo na pag may qualifying circumstance."

Read this article to learn how to protect your child from sexual abuse.