NOTES: DISCUSSION OF ATTY.

ALEX ANDREW ICAO

MAY 21, 2014 10:34 AM
Marital rape and the defense of mistake of fact: People vs. Jumawan (GR 187495, 21 April 2014)
While a husband may be convicted for the deplorable act of having sexual intercourse with his wife
without her consent, the husband may be acquitted if he proves the defense of a mistake of fact that is,
he lacks criminal intent for rape if the circumstances justify a belief by the husband that his wife
consented to the act.
The Supreme Court in the case of People vs. Jumawan (GR 187495, 21 April 2014) En Banc Reyes J,
affirmed the conviction of a husband for marital rape, rejected the notion that a wife is a mans property,
and described the nature of the right of coition between spouses under our laws. A highlight of the
Supreme Courts reasoning is hereunder quoted:
A woman is no longer the chattel-antiquated practices labeled her to be. A husband who has sexual
intercourse with his wife is not merely using a property, he is fulfilling a marital consortium with a fellow
human being with dignity equal[120][Universal Declaration of Human Rights, Article I: All human beings are born free and equal in dignity and
rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.]
to that he accords himself. He
cannot be permitted to violate this dignity by coercing her to engage in a sexual act without her full and
free consent. Surely, the Philippines cannot renege on its international commitments and
accommodate conservative yet irrational notions on marital activities[121][UN Declaration on the Elimination of
Violence Against Women, Article 4: States should condemn violence against women and should not invoke any custom, tradition or religious consideration to avoid
their obligations with respect to its elimination. States should pursue by all appropriate means and without delay a policy of eliminating violence against women
xxx.]

that have lost their relevance in a progressive society.

It is true that the Family Code,[122][Article 68. - The husband and wife are obliged to live together, observe
mutual love, respect and fidelity, and render mutual help and support. (Emphasis ours)] obligates the spouses to love one another but
this rule sanctions affection and sexual intimacy, as expressions of love, that are both spontaneous and
mutual[123][See Tsai v. CA, 334 Phil. 294, 304 (1997).] and not the kind which is unilaterally exacted by force or
coercion.
Further, the delicate and reverent nature of sexual intimacy between a husband and wife excludes cruelty
and coercion. Sexual intimacy brings spouses wholeness and oneness. It is a gift and a participation in
the mystery of creation. It is a deep sense of spiritual communion.
It is a function which enlivens the hope of procreation and ensures the continuation of family relations. It
is an expressive interest in each others feelings at a time it is needed by the other and it can go a long
way in deepening marital relationship.[124][Id. at 304.] When it is egoistically utilized to despoil marital union
in order to advance a felonious urge for coitus by force, violence or intimidation, the Court
will step in to protect its lofty purpose, vindicate justice and protect our laws and State policies. Besides, a
husband who feels aggrieved by his indifferent or uninterested wifes absolute refusal to engage in sexual
intimacy may legally seek the courts intervention to declare her psychologically incapacitated to fulfill

an essential marital obligation.[125][Refusal to have sexual intercourse must be rooted on psychological incapacity which in tum must be established
Baccay v. Baccay, G.R. No. 173138, December 1, 2010, 636 SCRA 350, 368369;
See also the Concurring Opinion of Associate Justice Arturo D. Brion in the case stating that: The failure to consummate the marriage by itself, however, does
not constitute as a ground to nullify the marriage. The spouses refusal to have intimate sexual relations must be due to causes psychological in nature,
i.e., the
psychological condition of the spouse renders [her] incapable of having intimate sexual relations with the other.xx x. 636 SCRA 350, 375.]
But he cannot
and should not demand sexual intimacy from her coercively or violently.
by the requirements of gravity, juridical antecedence and incurability;

A marriage license should not be viewed as a license for a husband to forcibly rape his wife with
impunity. A married woman has the same right to control her own body, as does an unmarried
woman.[128][Supra note 92. 1 Hale, History of Pleas of the Crown, pp. 628-629 (1736), as cited in People v. Liberta, Court of Appeals of New
York, 474 N.E. 2D 567 (1984).]
She can give or withhold her consent to a sexual intercourse with her husband and he
cannot unlawfully wrestle such consent from her in case she refuses.
The ruling in People v. Jumawan (GR 187495, 21 April 2014) that a husband can be guilty of rape if he
has sexual intercourse with his wife without her consent is consistent with the rule that a spouses right to
have sexual intercourse with his wife cannot be enforced in Court. If the husband cannot use the courts to
compel a wife to have sexual intercourse with him, then surely the husband cannot use the existence of
the marital relationship per se to exculpate himself from criminal liability for rape.
The Supreme Court in People vs Jumawan (GR 187495, 21 April 2014) declared that [n]either can the
Court frame distinct or stricter evidentiary rules for marital rape cases as it would inequitably burden its
victims and unreasonably and irrationally classify them differently from the victims of non-marital rape.
This statement however, should not be taken to mean that in deciding marital rape cases, principles in
criminal law such as that of mistake of fact lose relevance. In the case of U.S. vs Ah Chong (G.R. No.
5272 March 19, 1910) en banc Carson J, the Supreme Court held that ignorance or mistake of fact, if
such ignorance or mistake of fact is sufficient to negative a particular intent which under the law is a
necessary ingredient of the offense charged (e.g., in larceny, animus furendi; in murder, malice; in crimes
intent) cancels the presumption of intent, and works an acquittal. The Supreme Court U.S. vs Ah
Chong also held that [s]ince evil intent is in general an inseparable element in every crime, any such
mistake of fact as shows the act committed to have proceeded from no sort of evil in the mind necessarily
relieves the actor from criminal liability provided always there is no fault or negligence on his part. In
the recent case of Yapyuco vs Sandiganbayan (G.R. Nos. 120744-46, 25 June 2012) 3rd div Peralta J, the
Supreme Court described the principle of mistake of fact under our laws:
In the context of criminal law, a mistake of fact is a misapprehension of a fact which, if true, would
have justified the act or omission which is the subject of the prosecution. Generally, a reasonable mistake
of fact is a defense to a charge of crime where it negates the intent component of the crime. It may be a
defense even if the offense charged requires proof of only general intent. The inquiry is into the mistaken
belief of the defendant, and it does not look at all to the belief or state of mind of any other person. A
proper invocation of this defense requires (a) that the mistake be honest and reasonable; (b) that it be a
matter of fact; and (c) that it negate the culpability required to commit the crime or the existence of the
mental state which the statute prescribes with respect to an element of the offense. [citations omitted]

Essential to a conviction of the crime of rape which may be committed against any woman is the
concurrence of the overt act of having sexual intercourse with her against her consent, and the criminal
intent of the actor of having sexual intercourse with the woman against her consent. Rape is a crime
punishable under the Revised Penal Code, and the general rule for crimes punishable under the Revised
Penal Code (including rape) is that criminal intent must be proven. In Layug vs Sandiganbayan (G.R.
Nos. 121047-57. August 16, 2000) the Supreme Court in the context for a prosecution for falsification
held that:
At the outset, it must be stressed that in all criminal prosecutions for offenses under the Revised Penal
Code, the prosecution must prove beyond reasonable doubt that the accused had criminal intent to commit
the offense charged. As this Court said in Beradio vs. Court of Appeals:
Of great weight in Our criminal justice system is the principle that the essence of an offense is the
wrongful intent (dolo), without which it cannot exist. Actus non facit reum, nisi mens set rea, the act itself
does not make a man guilty unless his intentions were so. Article 3 of the Revised Penal Code clearly
indicates that malice or criminal intent (dolo) in some form is an essential requisite of all crimes and
offenses defined in the Code, except in those cases where the element required is
negligence (culpa). [37][191 Phil. 153, 163 [1981]
In the U.K. case of Director of Public Prosecutions vs Morgan [1976] AC 182, the House of Lords
considered the principle of mistake of fact in the context of a prosecution for sexual assault the
question confronting the magistrates being [w]hether, in rape, the defendant can properly be convicted
notwithstanding that he in fact believed that the woman consented if such belief was not based on
reasonable grounds.
It is submitted that there may be instances when the fact of being married, or of living together as husband
and wife between the spouses, will together with other circumstances contribute to the husband being
acquitted from rape due to the principle of a mistake of fact on part of the husband that his wife consented
to the act.
Perhaps, if there is no evidence of any misunderstanding between husband and wife, and they are living
together harmoniously in one house in one room, and one night the husband desires to have sexual
intercourse with his wife who is sleeping, caresses her, and the latter positively responds resulting in
sexual intercourse between them these may be positive points towards proving a mistake of fact (if the
wife complains that she did not consent because she was asleep or her reactions towards the caresses of
her husband were part of a dream) on part of the husband. Due to the inherently factual nature of proving
a mistake of fact, I caution in concluding that the existence of the circumstances just mentioned
automatically entitles the husband to a mistake of fact defense, because there will no doubt be a myriad of
factual circumstances that could negate its existence.
A recognition that the defense of mistake of fact is available to any person, married or unmarried, accused
of rape against any person, whether a spouse or not, will prevent unfounded prosecutions for marital rape,

and is consistent with the caveat made by the Supreme Court in People vs Jumawan (GR 187495, 21
April 2014), where the Court referring to its pronouncement affirming the appellants conviction for
marital rape held that:
The Court is aware that despite the noble intentions of the herein pronouncement, menacing personalities
may use this as a tool to harass innocent husbands. In this regard, let it be stressed that safeguards in the
criminal justice system are in place to spot and scrutinize fabricated or false marital rape complaints and
any person who institutes untrue and malicious charges will be made answerable under the pertinent
provisions of the RPC and/or other laws.
By: Atty. Alex Andrew P. Icao