Sexuality & Law in the Philippines
Table of Contents/Page
1. Introduction/2
11. The Meaning Of Sexuality/2
111 Laws Related to Sexuality/4
1. Child Rights & Age of Consent/4
2. Penalized Sexual Offenses/6
a)Adultery/Concubinage/6
b)Crime of Passion/8
c)Rape/9
d)Abortion/10
3. Sexual Commerce/11
Prostitution/ Anti-Trafficking Law/11
4. Sexual Expression/15
1V Recommendations for Policy/16
V Concluding Remarks/18
Acknowledgments/20
END NOTES
References/22
This paper [1] is about issues in sexuality and law in the Philippines. The discussion of law will focus on penalized sexual offenses in heterosexual relations and will use the content of particular Philippine national laws as written and a few comparative notes such as age of consent laws in the sexual generation divide, crimes related to marriage and penal provisions relating to sexual commerce and sexual expression. The first part of the paper introduces a sampling of laws on sexuality in the context of whether such laws promote bodily autonomy and integrity. The rest of the paper will be about proposals for legal reform on current laws & policies on sexuality. The proposals will be useful both for a project to challenge various current laws and international standards of human rights that are not informed by discourses on bodily autonomy and integrity and as a contribution to the current debate on human rights and sexuality.
The Meaning of Sexuality
In a workshop on “Sexuality & Social Justice” that was organized by the PILIPINA Legal Resources Center (PLRC) in 2002, the participants who were predominantly well-educated professionals from various communities in Mindanao, Philippines related “sexuality” to words like “love,” “sexual intercourse,” and “sexual organs” but the group could not find a direct translation of the terminology in the national language or their dialects.[2] Historical writings about sex and sexuality are “about such topics as marriage and the family, prostitution and homosexuality, the forms of legal and medical regulation, pre-Christian and non- Christian moral codes, and women’s bodies and health, illegitimacy and birth control, rape and sexual violence, the evolution of sexual identities, and the importance of social networks and oppositional sexualities.”[3]
In another workshop on Culture and Sexuality convened by PLRC in 2002, the following concepts[4] were put forward as basic concepts in sexuality which in shorthand is called the five (5) P’s of sexuality, as follows:
1.Practices. Refers to what you do, who you do it with, and what bodily organ is involved as well as the specific nuance of every local cultural material practice;
2.Partners. If done with a partner and whether a partner is loving, responsible, and communicative or expressive;
3.Pressure. Refers to cultural, moral and legal regulation;
4.Pain or Pleasure. The ideal is the right to pleasure in sexuality, i.e., contraceptive development should be towards pleasure or how some religions like Islam talk about what is pleasurable except that sodomy is not indicated as part of this pleasure formula;
5.Power Relations. Refers to what extent the participation of a partner is important and how players or stakeholders bargain their positions. For example, across generations, the older generation is the generation in power as it usually has the upper hand in setting standards and norms. Power relations cut across races, ethnicity, regions, class, gender, gender identities, age, and generations.
Ultimately, the ethical concerns in sexuality are about “the way partners treat each other, the level of mutual consideration, the presence or absence of coercion and the quantity & quality of the pleasures provided.”[5]
At the community level, social development workers have developed tools for evaluating empowerment and well-being of communities through demography and population or even reproductive rights paradigms. But, sexuality is still largely an unmarked discourse here as the right to pleasure is deemed a luxury in the face of so much poverty and conflict. The challenge, therefore, is how to translate the basic concepts of sexuality such as bodily autonomy, sexual expression and bodily integrity into enforceable rights whose fulfillment can be demanded through the legal system.
Laws Related to Sexuality
Sexuality as a personal & social issue is laden with values. One of the most pervasive of these values is human right as enshrined in our international documents and national laws. The current wave of feminists are clear about their concepts of bodily autonomy or integrity despite the fact that some specific international human rights laws pertaining to age of marriage, sexual slavery, trafficking or sexual expression are not yet settled issues.[6] Feminists have also been in the forefront of advocacies against sexual coercion, sexual assault and rape. What is put at issue here are laws on age of consent, sexual offenses in heterosexual relations, sexual commerce and sexual expression and which will be discussed in the context of bodily autonomy and integrity.
1) Child Rights & Age of Consent
The United Nations Convention on the Rights of the Child has defined a child as every human being below the age of 18 years unless under the law applicable to the child, majority is attained earlier. A survey of various ages of marriage in twenty countries reveals that states do not, in fact, consider every one below 18 as a child. Cases in point are Muslim family laws and “courts in Bangladesh, Cameroon, and the Philippines which may grant permission for marriages involving spouses younger than 15 but not younger than 12, while courts in Algeria, Tunisia, Malaysia, Egypt, Sri Lanka, Sudan & Morocco grant permission for marriages involving spouses younger than marriageable age, but family laws are either silent regarding an absolute minimum age or specify a low absolute minimum age or specify a low absolute minimum age.”[7]
Under our present child rights convention, a five year old child is no different from a 17 year old. As there is an ideological & legal refusal of youth autonomy, the laws against legitimate employment for non-dependent youth, young workers are made illegal for working on their own and thus end up in criminal occupations and unprotected and underpaid work.[8] In the Philippines, seventeen year old women who want to work as entertainers, fake their ages in order to go to Japan as entertainers.[9] Gayle S. Rubin says the primary mechanism for the separation of sexual generations is age of consent laws and regards sex law and sex regulation as simply sexual apartheid.[10]
In the Philippines, the consent of everyone below 18 years old in acts of lasciviousness, seduction, abduction, carnal knowledge[11] in rape is legally impaired or vitiated. Thus, the consent of a supposed victim who is below 18 is vitiated because the age of legal consent is 18 years old. It is as though intelligence comes only at eighteen years old.
The UN Child Rights Convention (CRC) does not give absolute freedom of expression nor absolute freedom of information to the child and while it protects the child in many ways, the CRC is a hybrid between protectionism and evolution of sexuality.[12]
For example, Article 13 of the UN Child Rights Convention gives the child the “ right to freedom of expression “; however, the same article subjects the exercise of this right to the following restrictions[13]
a)for respect of the rights or reputation of others; or
b)for the protection of national security or of public order, or of public health or morals.
Similarly, the right of a child to access to information is qualified by the following
provision[14]:
State parties shall encourage the development of appropriate guidelines for the
protection of the child from information and material injurious to his or her well-
being bearing in mind the provisions of Articles 13 and Article 18.
In turn, article 3 and article 18 of the UN Child Rights Convention names the following persons and institutions who are deemed in charge to decide for the “best interests of the child.” :
1 Both parents or as the case may be, legal guardians have the primary responsibility
for the upbringing and development of the child. (Article 18 )
2. In all actions concerning children, whether undertaken by public or private social
welfare institutions, courts of law, administrative authorities or legislative bodies,
the best interests of the child shall be a primary consideration. ( Article 3 paragraph 1 )
Where is the child in this powerful, authoritarian older generation who are the institutions who will decide for the best interests of child whose ages range from age 0-17 years?
2. Penalized Sexual Offenses in Heterosexual Relations
a. Adultery and Concubinage
Under Philippine penal law, adultery and concubinage are crimes. The Philippine Revised Penal Code defines adultery and concubinage as:
“Adultery is punishable with imprisonment from two years to six years. It is committed by any married woman who shall have sexual intercourse with a man not her husband and the man who has carnal knowledge of her, knowing her to be married, even if the marriage be subsequently declared void…”
“Concubinage is committed by any husband who shall keep a mistress in the conjugal dwelling, or, shall have sexual intercourse, under scandalous circumstances, with a woman who is not his wife, or shall cohabit with her in any place.” [15]
Yet, students of sexuality will argue that such criminalization serves to regulate sexual behavior and social order and is opposed to notions of bodily autonomy. As romantics would say, why should falling in love be a crime? For a long time now, women’s groups & women’s political parties have proposed reform towards equality in the evidence required to prosecute both crimes as the law cited above makes a distinction between a crime of adultery committed by women & a crime of concubinage committed by men. But, now in the light of bodily autonomy & bodily integrity, some legislators have proposed for the de-criminalization of both adultery & concubinage.[16] Laws should not criminalize sexual behavior that is freely done or with consent and as such sexual infidelity should properly be just a ground for divorce as in other countries except that the Philippines does not have an absolute divorce law. At the moment, sexual infidelity is a ground for legal separation. Our legal separation law allows spouses to live separately but restricts them from remarrying. The remedy of persons who want to get out of marriage and remarry is to petition the court for annulment of marriage and there are many grounds[17] and among them is “ psychological incapacity to comply with the essential requisites of marriage….” [18]
Divorce bills filed in the 11th Congress (1998-2001) and 12th Congress (2001-2004) have not become laws yet. Of course, filing a bill towards passage can take ages. Those who are against divorce are saying that divorce is unconstitutional because our constitution says that marriage is an inviolable social institution and marriage is the foundation of the family and is protected by the state. Of course, we have recently heard the anti-divorce stance of President Gloria Macapagal that is in keeping with the stand of the Catholic religious hierarchy. Women activists are saying that we must separate the stand of the religious hierarchy from the divergent stand of the lay people or laity – like the Catholic lay who constitute the majority in the church or in the case of Muslims, to realize that the Umma includes women who are starting to challenge religious voices that violate fundamental Quranic concepts of justice and equality. Feminists are saying that we must not be afraid to challenge religious voices that are unjust and that women should not leave the sacred space to the unholy and women have a right to claim their own sacred space.
Except for the Vatican, the Philippines is the last state in the world which does not have absolute divorce for its majority population. Ireland and other small nations which were against absolute divorce and Italy, where the Vatican is based, and other Catholic majority countries – Spain, Brazil, Ireland, Mexico, Portugal and all of Latin America – have recognized divorce.[19] Of course, our Muslim communities in the Philippines have one of the most sophisticated laws on Divorce. For instance, a woman can orally divorce her husband – if she has demanded this in her marriage contract – or by just placing the delegated right of divorce in the pre-nuptial agreement. Unfortunately, most Muslim women are not aware that she can opt for this in the marriage contract.
The absence of a secular divorce law for majority of Filipinos is particularly oppressive for women trapped in violent marriages.
b. Crimes of Passion
Corollary to the laws on adultery and concubinage are the so called crimes of passion. The Philippine Revised Penal Code[20] exempts a person from the usual punishment, any legally married person who having surprised his (or her) spouse in the act of committing sexual intercourse with another person, shall kill any of them or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury, shall (just) suffer the penalty of destierro[21] …. (and) if he (or she) shall inflict upon them physical injuries of any kind, he (or she) shall be exempt from punishment (and) these rules shall be applicable, under the same circumstances, to parents with respect to their daughters under 18 years of age, & their seducers, while the daughters are living with their parents.
This is a bizarre example of a state condoning the harming or at worst the murder of a person who has committed adultery or concubinage. This law must be evaluated for its assumptions because it seems that the harm committed against an offended spouse is ideological, i.e., spouses have control of each other’s bodies and the state will condone the destruction of human life for its transgression.
Rape
The Philippine rape law passed in 1997 whose penalty ranges from six years imprisonment to life imprisonment to death amends and expands the definition of rape to include not only forced penile penetration of the vagina but the current law on rape now includes forced oral sex, forced anal sex, inserting an object into the genital or anal orifice of another person. Also, the crime of rape was removed from a group of penal offenses classified as crimes against chastity and reclassified as crime against persons because not only does rape has nothing to do with chastity but also making it a crime against persons means now that the People of the Philippines can prosecute a crime of rape as opposed to the old law that only a raped woman can file her case as it was thought that this is the remedy if she wants to hide the violence done against her or if she wants to suffer in silence.
A very interesting feature of the current Philippine rape law is the inclusion of marital rape even if its formulation privileges the husband, to wit:
In case it is the legal husband who is the offender, the subsequent forgiveness by the wife as the offended party shall extinguish the criminal action or the penalty. Provided, that the crime shall not be extinguished or the penalty shall not be abated if the marriage is void ab initio.[22]
Another feature of the rape law is that as far as penalty is concerned, it deems carnal knowledge[23] or sexual intercourse (penile penetration of the vagina) as more heinous than oral sex or anal sex or insertion of instrument or object into the genital or anal orifice of the offended party. The rape by penile penetration of the vagina is punishable by life imprisonment while the penalty for rape by oral, anal sex or object insertion of genitalia is imprisonment for 6 years and one day to 12 years in its entirety. This reinforces the traditional coital imperative in sexual relations and forgets that what are being punished are the act of violence and assault and not the methodology of the sexual act.
d. Abortion
Under Philippine law, abortion is a crime. Even as studies by PILIPINA, a national movement of Filipino women, show that large numbers of Filipino women continue to undergo induced abortion for a variety of reasons, using a number of methods – indigenous or sophisticated, some of them high risk and life- threatening, very few women are vocal about campaigning for the de-criminalization of abortion. A bill on Abortion was filed in the 11th Congress entitled “The Women’s Freedom of Choice Act of 1999” and talks about special cases of terminating a pregnancy i.e. when there is a documented medical evidence of a threat to a woman’s life or the fetus will be born with physical or mental deficiency; and when pregnancy results from rape or incest. The abortion bill filed in the 11th Congress has not been re-filed yet in the House of Congress, to date.
Many health conferences have urged the women’s health movement that advocacy towards de-criminalization of abortion must consider the issue not merely as a health or legal problem but also as an issue of gender and social justice. Should we address the issue of the increasingly medicalization of abortion? Some of our sisters in the women’s movement want to be assured that no woman who has to undergo abortion should be unsafe when undergoing abortion. A proposed bill on reproductive health care in the Philippines has included a provision on prevention and management and treatment of the complications of abortion as part of an integrated health services.[24] Vast empirical evidence around the world has shown that stringent legal restrictions do not guarantee a low abortion rate.[25]
Women’s groups are starting to document stories of women who have undergone abortion and their reasons, the histories and experiences of countries which have gone through the process of getting abortion legalized. But, given that abortion is a crime, any testimony can be incriminating, thus the stories of women who have undergone abortion and their reasons will have to remain anonymous for the time being.
3. Sexual Commerce
a.Prostitution and Anti-Trafficking Laws
The history of interventions on prostitution can be summarized in about four viewpoints:[26]
[a] The Abolitionists’ approach which lasted a 100 years is towards the prevention of trafficking and the UN instrument here is the 1949 Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others;
[b] the Neo-Abolitionists believe that “all prostitution is a human rights violation and prostitution is a form of sexual exploitation (or) a practice by which women are sexually subjugated through the abuse of women’s sexuality…” [27];
[c] Those who believe that sex work is a legitimate occupation makes a distinction between “voluntary” and “forced prostitution” and
[d] the new perspective which warns that the “voluntary” and “forced prostitution” divide “reinforces systems that abuse sex workers rights” and reminds us that “the campaign for sex workers’ rights began with challenging the myths surrounding prostitution and women’s sexuality.”
It is further reported that while the UN Special Rapporteur on Violence Against Women distinguishes between voluntary and forced prostitution,[28] the United Nations does not have a clear prostitution policy.[29]
A definition of trafficking that is faithful to the principle of bodily autonomy & integrity is one that is put forward by the Report from the Roundtable on the Meaning of “Trafficking in Persons” which has agreed on the following as elements of trafficking as follows:
“Within or across borders whether for financial or other gain or no and in which material deception, coercion, force, direct or indirect threats, abuse of authority, fraud, or fraudulent non-disclosure is used for the purpose of placing a person forcibly, against her/his will or without her/his consent in exploitative, abusive, or servile situations, such as forced prostitution, sweatshop labor, domestic servitude or other forms of labor or family relationship whether for pay or not. [30]
In turn, the very recent legislation in the Philippines on trafficking having been passed into law in year 2003 is similar to the above except for a major difference that the Philippine law does not distinguish between “with or without the victim’s consent or knowledge.” The Philippine Anti Trafficking in Persons Act of 2003 (R.A. 9208) defines
Trafficking in persons as the recruitment, transportation, transfer or harboring, or
receipt of persons with or without the victim’s consent or knowledge [31] , within or across
national borders by means of threat or use of force, or other forms of coercion,
abduction, fraud, deception, abuse of power or of position, taking advantage of the
vulnerability of the person, or, the giving or receiving of payments or benefits, to achieve
the consent of a person having control over another person for the purpose of
exploitation which includes at a minimum, the exploitation or the prostitution of others or
other forms of sexual exploitation, forced labor or services, slavery, servitude or the
removal or sale of organs.
The recruitment, transportation, transfer, harboring or receipt of a child for the purpose
of exploitation, shall be considered as “trafficking in persons” even if it does not involve any of the means set forth in the preceding paragraph.
Anti-trafficking legislation involves not only the prevention of material harm but also involves the notion of ideological harm which Pheterson describes as the “penetration of the nation” and the notion of “markets which requires borders.”[32] As Pheterson said:
“Laws…effectively exclude women stigmatized as prostitutes from legal protection by failing to distinguish between individual decision and coercion and by blaming prostitute – branded women themselves for violence committed against them.” [ 33]
The face of the trafficked person is a woman prostitute and, thus, anti-trafficking laws must be nuanced as legislations which regulate sex and sexuality in general. The woman is represented as a sexual victim who has to sell her valued good which is chastity. Thus, states make a distinction between the right to work and the right to sex work. This has informed how women’s groups have deployed interventions in anti-trafficking programs. Some women’s groups in the Philippines like the Coalition Against Trafficking of Women (CATW) are advocating for the amendment of the provision on Vagrants and Prostitutes in the Philippine Revised Penal Code.
Under the Philippine Revised Penal Code, the law which lumps vagrants with prostitutes is punishable with imprisonment from one month to more than two years ( 2 yrs & 4 mos. ) and which is found under the chapter on Offenses Against Decency and Good Customs defines vagrants and prostitutes as
1.Any person having no apparent means of subsistence, who has the physical ability to
work and who neglects to apply himself or herself to some lawful calling;
2.Any person found loitering about public or semi-public buildings or places or
tramping or wandering about the country or the streets without visible means of support;
3.Any idle or dissolute person who lodges in houses of ill-fame; ruffians or pimps and those who habitually associate with prostitutes;
4.Any person who,….shall be found loitering in any inhabited or uninhabited place belonging to another without any lawful or justifiable purpose;
5.Prostitutes ….(are) women who, for money of profit, habitually indulge in sexual intercourse or lascivious conduct….[34]
CATW is advocating for the repeal of this provision on Vagrants and prostitutes because this law, among others, defines a vagrant as a prostitute and as such the law is deemed anti – prostitute, anti poor and anti homeless.[35] Like the CATW, the women’s political party Abanse ! Pinay believes that “ the prostitute is a victim caught in an exploitative situation rather than a criminal out to exploit his/her client.” [36] A proposed bill by the party list Akbayan on anti prostitution defines prostitution as
Any act, transaction, scheme or design involving the use of a person, whether woman,
man, or child, for the sexual gratification, exploitation or pleasure of another in
exchange for cash, profit, or other consideration, or any act that promotes or facilitates
the accomplishment of the said act, transaction, scheme or design….
The proposed bill also defines “persons exploited in prostitution as victims” as follows,
Any woman, man or child used or employed for another person’s sexual gratification, pleasure, or exploitation and for the monetary gain or profit of others, ….shall be treated as victims of prostitution. As such, they shall not incur any criminal liability under this Act, except ….
As well, the bill treats the victim differently by imposing, for example, a different penalty for the offender who is a person also exploited or had been exploited in prostitution. The penalty is as follows :
First offense – the offender shall undergo three (3) mos. mandatory counselling and rehabilitation program with the Department of Social Welfare & Development.
Second Offense – imprisonment of one month and mandatory counseling and rehabilitation program with the DSWD for six (6) months,….
This kind of sexual exchange is stigmatized in many places, and in one project, for instance, a “recovered” sex worker must be returned to her family.[37] In the Philippines, the stigma of sex work has both a religious and historical narrative and this has also informed current anti-prostitution campaigns deployed by women’s groups and religious organizations.
The Philippine government officially deploys its citizens to work as entertainers to Japan. It is common knowledge in the Philippines that entertainers also do sex work or prostitution even as prostitution is a crime in the Philippines. Of course, the Philippines has no jurisdiction over alleged crimes committed abroad. Many Filipinos are sad and ashamed about the fact that our women are using sex labor to serve the men of Japan, a former colonizer. Women’s bodies symbolize the national body. In this imagined source of continuing hegemony and domination, the agency of the Filipino woman who wants to be autonomous to decide for her body and life is not part of the discourse and analysis. Based on testimonies, Japayuki Filipino women[38] have appropriated for themselves the image of entertainer for their own ends – whether as a repudiation of their culture of poverty in the Philippines or as an escape from non-egalitarian gender relations at home. They have come back to the Philippines to invest their money as entrepreneurs. They are proud to have explored their autonomy and to have claimed a space to experience other cultures.
In the example from a study in Southwest Uganda, girls negotiate for sex and their perception is one of reciprocity which is more than just buying and selling but girls gaining rather than losing.[39]
4. Sexual Expression
Pornography is a heavily invested issue here. As in most jurisdictions, the right to information is guaranteed in the Philippine Constitution, to wit:
No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.[40]
The Philippines still uses the Miller v. California[41] as the obscenity test, as follows:
(a) Whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest … (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work taken as a whole lacks serious literary, artistic, political, or scientific value.
In the workshop by PILIPINA-Davao convened for the purpose of my sharing the highlights of the University of Amsterdam (UVA) 2004 Summer Institute on Sexuality, Culture and Society, pornography was discussed in the context of the right to expression and participants remarked that the obscenity test is very arbitrary and very subjective as what is prurient to one may not be prurient to the others. And a query was put forward :
“ What is wrong with being prurient, anyway? “
The right to expression should properly include the right to sexual expression. The right to pursue a particular sexual orientation is part of the right to sexual expression. Under the current Family Code of the Philippines, lesbianism or homosexuality is a ground for legal separation.[ 42] This reinforces heterosexuality as the norm in marriage as opposed to marriages among homosexuals practiced in other jurisdictions. In the 11th Congress of the Philippines (1998-2001), the Anti-Discrimination Bill (House Bill 2784) was filed under the auspices of the Committee on Human Rights. There is hope that this will be filed anew in the current Congress. Our women’s political party, Abanse! Pinay has included in its advocacy agenda the following statement:
…to support upholding the basic human rights of all, including lesbians and gays who should enjoy equal rights with the rest of humanity (and ) will support any legislative initiative that would penalize any form of discrimination against any citizen based solely on gender or sexual preference. [43]
Recommendations for Policy
Age of Consent & Child Rights
Our laws must recognize that not all below 18 years old are the same. Not everyone
below 18 years old is a child. Thus, any child rights convention must give absolute
freedom of expression without restrictions.
Four fundamental principles[44] or queries are put forward to inform age of consent
and child rights policy:
1. Who is deciding for the “ best interests of the child”[45] ?
2.A child has evolving capacity.
3. There should be non discrimination of children based on sexual orientation. Adolescents which are classified as children under the Child Rights Convention should be given absolute freedom of expression. There should be recognition of the evolution of sexuality.
4. Child survival must be ensured. What is it that children can do on their own? [46]
On Freedom of Expression
The right to sexual orientation is in keeping with the constitutional guarantee of freedom of expression and there should be no discrimination based on sexual orientation.
The prevailing obscenity test which uses the US v. Miller is anti –sex and violates freedom of expression.
On Sexual Offenses
Adultery and Concubinage should be removed from the penal statutes.
Rape is an act of violence and should not privilege one form of sexual act over another nor privilege anybody like the husband.
The state should not condone harm or murder committed by an enraged spouse against his/her spouse for transgression of exclusive sexual access to the wife.
In the spirit of bodily autonomy and self determination, a woman should be free to choose and decide for herself if and when she wants to get pregnant and should have access to the benefits of science and high quality information including safe termination of pregnancy.
The promotion of sex workers’ rights should not receive less attention than the prosecution of the perpetrators of forced prostitution.
Finally, the author wishes to promote the concept of sexual citizenship as developed by Jeffrey Weeks[ 47 ] which involves three dimensions:
First is a demand for control: we demand control over our bodies, over our feelings, and over our relationships.
Second is a demand for access: we demand access to representations, relationships, and public spaces.
Third is a demand for choice: we demand choices about identities, our lifestyles, our gender experiences.
Concluding remarks
Human rights laws, both international and local, are not yet settled on sexuality issues in the context of bodily autonomy and integrity. For the moment, even as the sexuality issues are very contentious, among Filipina feminists there is a willingness to go through a process of discussion and clearing the air- initially through reproductive and sexuality workshops, and hopefully, an informed analysis will translate into a political and policy agenda.
How do we promote sexuality for our own well-being as women and our communities? We are asking this amidst the following realities: women’s poverty, the great impact of structural adjustment on women’s health and lives, the fallacy of access to health services and quality care, the reality of HIV, women’s sexuality and identity politics such as ethnicity issues in Southern Philippines. The challenge is not only to use human rights instruments as a tool for demanding real change but also to influence the human rights discourse in international law which is still not clear on various sexuality issues such as age of consent, sexual expression, age of marriage, the hybrid position on “with or without consent” in sexual slavery and anti-trafficking legislations. Unfortunately, human rights are conceptualized solely in political terms. Given the marginalization and exclusion of the majority of women from the benefits of development, given the widespread poverty – social and economic rights are routinely violated.
Feminists have warned against the artificial separation of needs between the poor women and rich women, between first world and third world countries: namely, that the first world needs freedom for sexual pleasure while the third world like the Philippines needs freedom from poverty. Feminist politics must be linked to all aspects of development. Women’s position in the global economy must re-link to ethics to materiality of our bodies to the world. The feminist clamor of seeking redirection from contraceptive development to demand for pleasure should not be separated from the problem of how to access “free choice” if the woman has no money or has nothing to eat. As a feminist said, our need for love, affection and tenderness is intimately connected with sexuality which is felt by all women and men in all cultures. We are timid when asking for “positives” such as our demand for bodily autonomy and this perpetrates the image of women as victims only. Women must claim and be enabled and empowered by her sexual rights.
END NOTES
1. Based on the paper prepared for the Institute of Development Studies ( IDS) Alumni Reunion at the University of Sussex, Brighton, England on June 29-30, 2009
2.Quintillan, Emelina “Sexuality & Social Justice” in PILIPINA Legal Resources Center, Muslim Laws, Culture & Reproductive Rights. 2003 p. 15
3.Weeks, Jeffrey. Sexuality. Second Edition. London: Routledge, 2003 p.12
4.Based on the framework presented by Dede Oetomo, PhD of GAYa Nusantara Foundation in Surabaya, Indonesia during the PILIPINA Legal Resources Workshop in 2002
5.See Rubin, Gayle. Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality. In Carole Vance (Ed) Pleasure and Danger: Exploring Female Sexuality. Boston: Routhledge & Keagan Paul. 1984. Pp 267-319
6.Remarks of Alice Miller, JD at the University of Amsterdam during our 2004 Summer Institute on Sexuality, Culture & Society
7.Women Living Under Muslim Laws. KNOWING OUR RIGHTS: Women, family, & customs in the Muslim World. 2003 Pp 125-126
8.Pheterson, Gail. Street Kids, Migration, & Prostitution Pp 90-99.
9.Interview with women (from Nova Tierra, Davao City) bound for Japan (Japayuki) who have faked their ages
10.Rubin. 1999: 158-159
11.Carnal knowledge in Philippine jurisprudence means sexual intercourse
12.Based on the remarks of Alice Miller during our human rights & sexuality seminar in July 2004
13.Paragraph 2 of article 13 of the UN Child Rights Convention
14.Paragraph (e ) of Article 17 of the UN Child Rights Convention
15. Article 333-334 of the Revised Penal Code of the Philippines
16.Ana Leah Sarabia, Executive Director of Women’s Media Circle remarked that Representative Imee Marcos filed a bill amending the law on adultery & concubinage in the 12th Congress
17.Under the Family Code, marriages can be null & void if they do not comply with essential requisites (age, license, solemnization) or mistake of identity, incestuous marriages or can be voidable marriages due to lack of consent, insanity, consent obtained by fraud or force, physical incapacity impotency) or due to affliction of sexually – transmissible disease.
18. Article 36 of the Family Code of the Philippines
19. As discussed during a forum on divorce and family violence sponsored by Women’s Feature Service on Nov. 28, 2000 in Davao City
20.Art 247, The Revised Penal Code.
21.Under Article 87 of the Philippine Revised Penal Code, any person sentenced to destierro shall not be permitted to enter the place or places designated in the sentence, nor within the radius therein specified which shall be not more than 250 and not less than 25 kilometers from the place designated.
22.Article 266 C of R.A. No. 8353 or the Anti-Rape Law of 1997
23.Supra Note 12
24.House Bill 4110 called the Reproductive Health Care Bill
25.As discussed during one of the satellite workshops on Abortion during the 8th International Women Health Meeting in 1997 at Rio de Janeiro, Brazil
26.See Jo Doezema. FORCED TO CHOOSE: Beyond the Voluntary v. Forced Prostitution Dichotomy Pp 42-47
27. Ibid citing the Coalition Against Trafficking of Women (CATW) Convention on the Elimination of All Forms of Sexual Exploitation of Women.
28.Ibid
29.Ibid citing Alice Miller, 1991
30.Report From the Roundtable on the Meaning of “Trafficking in Persons” : A Human Rights Perspective which was chaired by Alice Miller, JD
31.Underscoring is by the author
32. Pheterson, Gail. Right to Asylum, Migration & Prostitution. In G. Pheterson. The Prostitution Prism: Amsterdam University Press, 1996 p. 106
33.Ibid
34.Article 202 Vagrants & prostitutes, penalty of the Revised Penal Code
35.Remarks of Ms. Jean Enriquez from the Coalition Against Trafficking of Women ( CATW) in the Philippines
36.from an unpublished paper of Abanse ! Pinay on standard answers on various issues like Family Planning, Abortion, Divorce, Lesbian & Gay Rights, Prostitution, among other issues.
37.Sharing of Yuyun Wahyuningrum from Terre des Hommes of Jakarta, Indonesia
38.Interviews with Filipina women entertainers working in Japan (Japayuki women) who are clients of the Marconi Recruitment Agency which holds office in the residential village (Nova Tierra, Lanang, Davao City) where the writer resides.
39.Nyanzi, Stella, Barbara Nyanzi, Bessie Kalina, and Robert Pool. 2004. Mobility, Sexual Networks and Exchange among Bodabodamen in Southwest Uganda. Culture, Health & Sexuality 6:239-254
40.Sec 4, Art. 111, The Phillippine Constitution
41.37 L. Ed.2nd 419, 431 1973 as cited in Bernas, Joaquin,S.J. The 1987 Philippine Constitution: A Reviewer – Primer 1997
42.Article 55, The Family Code of the Philippines
43.From an unpublished paper of Abanse! Pinay on standard answers on various issues like Family Planning, Abortion, Divorce, Lesbian & Gay Rights, Prostitution, among other issues.
44.These principles were shared by Alice Miller during our human rights & sexuality seminar in July 2004 inAmsterdam
45.Article 3 and Article 18 of the UN Convention of the Rights of the Child
46.Pheterson supra note 8
47.The concept was developed by Jeffrey Weeks and cited in Tom Shakespeare. Disability, & Sexuality: towards rights & recognition 2001 p. 12
Acknowledgements
The author wishes to acknowledge Alice Miller for her comments during the writing of this paper.
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