Effects of Pardon The effects of pardon in marriage can be summarized in Article 266-C of the R.A. No. 8353.

The provisions states that: "Article 266-C. Effect of Pardon. - The subsequent valid marriage between the offended party shall extinguish the criminal action or the penalty imposed. 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. 1 According to the provision, marriage extinguish not only the criminal action but also the penalty imposed to the accused. However, this should only apply if the marriage is validly celebrated and not void from the beginning. In People vs. De Guzman2, the offender was accused by two accounts of rape and he pleaded not guilty. He was sentenced for each account of reclusion perpetua. Then, he filed an appeal alleging that he and private complainant got married validly. Because the marriage was contracted legally and in good faith, his prayer of abolishment of the rape accounts was granted and was freed from imprisonment. In relation with the abovementioned provision, paragraph 7 of Article 89 of the Revised Penal Code states that criminal liability is totally extinguished by the marriage of the offended woman, as provided in Article 3443 of this Code. In conclusion, the Court held that, Given public policy considerations of respect for the sanctity of marriage and the highest regard for the solidarity of the family, we must accord appellant the full benefits of Article 89, in relation to Article 344 and Article 266-C of the RPC. Prior to the reclassification, rape had been categorized as a crime against chastity where the not only the principals but also the accomplices and the accessories benefit based on Article 344 of the Revised Penal Code. However, since rape is now part of crimes against persons, marriage only pardons the principal (in this case, the husband) and not the accomplices and the accessories. Therefore, this does not apply to multiple rape. Even if the marriage extinguishes the criminal liability of the husband as one of the defendants, this does not mean that other coprincipals are also pardoned for the act. The reason for this is that each carnal access amounts to a separate and independent crime of rape.4

1 2

The Revised Penal Code Book II: Eighteenth Edition, Luis B. Reyes, p. 571 People vs. De Guzman, G.R. No. 185843, March 3, 2010 3 Art. 344. x x x In cases of seduction, abduction, acts of lasciviousness, and rape, the marriage of the offender with the offended party shall extinguish the criminal action or remit the penalty already imposed upon him. The provisions of this paragraph shall also be applicable to the co-principals, accomplices, and accessories after the fact of the above-mentioned crimes. 4 People vs. Bernardo 38 OG 3479

Marital Rape Rape within the marriage is often referred to as marital rape. Prior to the R.A. 8353 or also known as The Anti-Rape Law of 1997, the husband cannot be guilty of rape committed against the wife as she has given her matrimonial consent. However, after the enactment of the act, evident in the provision stated above, in paragraph 2, it clearly states that In case the legal husband is the offender x x x. The presumption is that the husband may still be guilty for committing the crime of rape and it could be extinguish if he is forgiven by the offended party. The caveat in the second part of the provision tells that the marriage between the man and woman should not be void ab initio. If otherwise, the offender is liable for the crime as he is not a husband of the woman offended.

Presumption One of the amendments in R.A. No. 8353 is the introduction of Article 266-D which deals with the presumption of the crime of rape. The provision states that: "Article 266-D. Presumptions. - Any physical overt act manifesting resistance against the act of rape in any degree from the offended party, or where the offended party is so situated as to render her/him incapable of giving valid consent, may be accepted as evidence in the prosecution of the acts punished under Article 266-A."5 According to the provision, there are two ways in which the evidences may be accepted so that the case can prosper. First is any physical overt act manifesting resistance against the act of rape in any degree from the offended party and the second is where the offended party is so situated as to render him/her incapable of giving consent. This means that mere resisting to the act of the offender and lack of consent could be taken as an evidence for his/her prosecution. Moreover, it should be taken into account that the act of committing rape requires some kind of force against the offended party which makes it possible for the victim to desist and be incapable of consenting to the crime. In a dissenting opinion of Justice Vitug in People vs. Servano, The gravamen of the offense of rape is sexual congress with a woman by force, threat or intimidation. If rape is through the use of force, violence or intimidation, it should be self-evident that it can only be committed against or without the consent of the victim. It is noteworthy that Republic Act No. 8353 requires at least some kind of physical overt act to manifest resistance, as well as its proof, that would indicate such lack of consent.6

5 6

The Revised Penal Code Book II: Eighteenth Edition, Luis B. Reyes, p. 573 People vs. Servano, G.R. Nos. 143002-03, July 17, 2003