Consent and rape still apply even in marriage. Here's what you need to know
Trigger warning: This article contains mentions of rape and abuse.
Sen. Robin Padilla sparked controversy and raised conversations on consent, marital rape, and the role of women in modern society.
During the Senate Committee on Public Information and Mass Media hearing on Aug. 15, Padilla asked Atty. Lorna Kapunan, a women's and children's rights advocate, about what husbands can do to demand sex from their wives "legally."
It ended up with Kapunan lecturing him about consent and mutual respect, even cheekily telling him to instead do non-sexual acts like praying or watching television shows. She also reminded him that the Family Code was amended to remove the obligation of obedience. Kapunan likewise warned him that rape applies the moment the husband forces her wife to have sex with him.
Padilla then became the subject of criticism and ridicule online for his pronouncements. He issued an apology on Aug. 17, but explained he was just doing an "inquiry." He also clarified that he doesn't agree with husbands forcing their wives to have sex with them. Instead, he said he's pushing for men's "sexual rights."
What is marital rape?
Atty. Jefferson Legado, who specializes in family and marital issues, told PhilSTAR L!fe that marital rape stems from the definition of rape under the Revised Penal Code and Republic Act No. 8353 or the Anti-Rape Law of 1997.
According to the law, rape is committed by a man who shall have carnal knowledge of a woman through force, threat, or intimidation; when the offended party is deprived of reason or otherwise unconscious; by means of fraudulent machination or grave abuse of authority; and when the offended party is under twelve years old or is demented.
Rape also happens once the man inserts his penis into another person’s mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person.
"Thus, it can be deduced that a man, whether a stranger, a boyfriend, a fling, or even a husband can be guilty of the crime of rape," Legado said. "Since the law does not qualify, neither do we, as long as the offender is a man who has carnal knowledge of a woman under the circumstances above, he is guilty of rape."
According to the National Demographic and Health Survey in 2022, about 2.3% of women underwent sexual violence from their spouses and partners. The World Health Organization, meanwhile, said one in three women have been subjected to either physical and/or sexual intimate partner violence or non-partner sexual violence in their lifetime.
What is consent?
Nathaniel Chua, a marriage counselor, told L!fe that a simple "No" can already mean non-consent. "Anything that is forced is not consensual," he said.
Chua reminded the public that in the workplace, inappropriate touching without consent could be deemed harassment already.
But consent isn't about a mere "yes" to the sexual act, according to Legado.
The lawyer noted that the yes must be obtained without threat or intimidation. There must also be no grave abuse of authority (like those from a position of power, i.e., bosses, seniors).
The consenting parties must also be both at least 16 years old. The moment the other party is underage, then that person cannot consent from the start and therefore automatically qualifies as rape (statutory rape).
Legado said it is consensual as long as everything is done voluntarily and both parties understand the consequences of their actions.
"However, in marital rape, lack of consent can be challenging especially if the woman believes that it is her 'duty' as a wife to comply with her husband’s sexual demands," he said.
Legado said offenders in rape, whether it's marital or not, should be held criminally liable. "The law does not distinguish who may be the offender or offended party," he noted.
Rights for remediation and couples therapy
If marital rape happens, Chua urged abused partners to know their rights for remediation and consult with legal experts. "There is no context wherein non-consensual sex (even intimate touching) can be allowed either legally or ethically," he said.
He also urged them to set limits and move to a separate place, especially if there are also verbal threats present.
Chua noted that couples therapy is an option despite the abuse, though reminded that no couple therapy can proceed under the threat of any violation of physical safety.
"Experiences such as rape can make it more challenging for the couple to repair the relationship," he said.
"Couples therapy is done in the context of an open and honest interaction wherein both parties feel safe enough to share their thoughts and feelings," he said. "Without this safety, couples therapy will not be able to address their issues as thoroughly, not to mention can prove dangerous for the abused partner."
Still, Chua noted that the couple can maintain contact as they go through their counseling work by meeting outside in public places where any form of abuse is highly unlikely. He also advised that the abusive partner seek individual therapy first before a couple session.
"If repetitive or if there is a perceived threat of repeating such behavior, I recommend that they live in separate places while going through either individual or couple therapy," he said.
More importantly, Chua advised the abused to seek help "to find better options to handle the challenge that your partner gives you."
"Just like the rest of our bodies, we need to also take care of our ways of coping with our thoughts or other inner experiences," he said, "so that we are able to manifest in our external behaviors, actions that indicate what had been there all along…the love and care that you professed to your respective partners."
Legado also echoed the importance of seeking counseling if warranted. "Sex is even more wonderful if both are onboard," he said.
