In an important step in recognizing the sexual autonomy of adolescents, the Philippines has amended its penal code to decriminalize adolescent sexual activity that is consensual, non-exploitative, and non-abusive. The amended law, Republic Act No. 11648, was signed by the president on March 4 and published in the country’s Official Gazette on March 7.
For years, the Center for Reproductive Rights has been working in the Philippines and other countries to ensure that laws criminalizing age-mate and consensual sexual activity are repealed and that they adhere to international human rights standards. The new law raises the age of sexual consent from 12 years–which was the lowest age limit in the Southeast Asia region and among the lowest in the world–to 16 years. It amends the Revised Penal Code as further amended by the Anti-Rape Law of 1997.
While the amendment makes the age limit for statutory rape 16 years, it includes “close-in-age” exceptions: it decriminalizes adolescent sexual activity if the age difference between the adolescents is not more than three years and if the sexual activity is proven to be “consensual, non-abusive and non-exploitative.” The exemption from criminal liability does not apply if an adolescent is under 13 years of age. (See the “Article 266-A” section below for the exact text.)
“Subjecting adolescents to criminal prosecution and penalties for engaging in consensual sexual behavior not only heightens the stigma around adolescent sexuality but also creates unnecessary barriers for them to seek and have access to sexual and reproductive health information and services,” said Jihan Jacob, Senior Legal Adviser for Asia at the Center for Reproductive Rights. “We’re pleased that this positive development will help ensure that adolescents are able to exercise autonomy about their sexuality.”
Amended Law Is Grounded on an International Human Rights Framework
With the new law, for the first time, adolescents in the Philippines are being recognized as rights holders who have sexual autonomy. Through the close-in-age exceptions, the government recognized that a blanket criminalization of informed and consensual adolescents’ sexual behavior denies adolescents their fundamental rights and freedoms and prevents their full access to SRHR by failing to understand, consider, and address the unique and significant physical, emotional and social changes they have to navigate.
Decriminalization of adolescent sexual activity is in line with international human rights law. The UN Committee on the Rights of the Child’s (CRC) General Comment No. 24 (2019) on children’s rights in the child justice system recommends that states decriminalize consensual sex by adolescents with one another. While taking into account the need to balance protection and evolving capacities, it made a similar call for decriminalization in its earlier General Comment No. 20 (2016).
“In 2020, together with our partners, we have raised before the CRC Committee how the use of criminal law to regulate non-coercive sexual conduct among adolescents punishes them for a natural part of their development,” added Jacob. “Penalizing adolescent sexuality—and in some cases requiring third parties to report adolescent sexual activity to the police—violates adolescents’ rights to privacy and confidentiality. In addition, criminalization often results in adolescent males being imprisoned. This can create a chilling effect for adolescents seeking sexual and reproductive health information and services.”
The Center’s Asia team has worked with its regional partners to engage with the CRC’s recent review of the Philippines. In 2020 the Center, along with its partners, made two submissions before the Committee: the NGO alternative report on the status of adolescents’ reproductive rights and a supplementary report to it. Both these reports examined the implementation of the Convention on the Rights of the Child by the Philippines since its last periodic review in 2009. Further, the report made submissions on issues pertaining to adolescents’ access to contraceptive information and services, prohibitive abortion laws, and criminalization of consensual sexual behavior between adolescents.
More Reform is Required to Ensure Adolescents’ SRHR Rights
Decriminalization of close-in-age adolescent sexual activity is an essential starting point towards the full realization of adolescents’ SRHR. However, attention must also be brought to other national laws and policies that are discriminatory and act in conflict with adolescents’ interests. This would require the Government to remove all existing barriers to access sexual and reproductive health services that adolescents face, including the requirement of prior consent from a parent or guardian as a precondition to availing these services.
In its General Comment No. 20 (2016) on the implementation of the rights of the child during adolescence, the Committee on the Rights of the Child called on states to adopt “a legal presumption that adolescents are competent to seek and have access to preventive or time-sensitive sexual and reproductive health commodities and services.” Additionally, the Committee also stated that all adolescents, irrespective of age, have the right to access confidential medical advice without requiring parental or guardian consent.
The Center calls on the Government to:
- Ensure that existing laws and policies are reformed to guarantee adolescents’ access to SRHR.
- Work towards health systems that are equipped and have the capacity to meet the specific SRHR needs of adolescents.
Jacob said, “It is crucial that adolescents do not face any other barriers to information and services on sexual and reproductive health and rights, such as requirements for third-party consent or authorization. We look forward to working with the Government to create an enabling environment where adolescents are able to make autonomous and informed decisions about their sexuality and reproductive health, access comprehensive sexuality education, and avail of adolescent-friendly SRHR services.”
The State of Adolescents’ Sexual Activity and SRHR in the Philippines
- Adolescent sexual activity coupled with inaccessible contraceptive education and services resulted in increased pregnancies. (Philippines Department of Health)
- Girls from lower economic backgrounds and ones who lack education were found to be at a higher risk of pregnancies. (Philippines National Demographic and Health Survey)
- The Philippines ranked fourth in 2019 among the other Southeast Asian countries in early childbirth rates. (The Commission on Population and Development)
- In 2019, 500 Filipino youth gave birth each day. The adolescent birth rate is at 47 per 1,000 live births, which is far higher than the Asia Pacific average of 33.5 and that of the world of 44. (The Commission on Population and Development)
- The COVID pandemic has had adverse consequences for adolescents accessing family planning services including contraceptives. A 2020 UNFPA and UPPI study estimated that the gap in accessing family planning services for adolescents between the ages of 15 and 19 will increase by 9.3%. (UNFPA and UPPI)
- While 2020 saw a 13% drop in adolescent pregnancies, the drop is likely due to the restrictions imposed by the pandemic that limited physical interactions and unlikely due to any increased access to sexual and reproductive health services. (The Commission on Population and Development)
The amendment that decriminalizes consensual adolescent sexual activity modies Article 266-A 1(d) of the Revised Penal Code:
Article 266-A. Rape; When and How Committed. – Rape is committed:
1) By a person who shall have carnal knowledge of another person under any of the following circumstances:
d) When the offended party is under sixteen (16) years of age or is demented, even though none of the circumstances mentioned above be present. Provided, That there shall be no criminal liability on the part of a person having carnal knowledge of another person under sixteen (16) years of age when the age difference between the parties is not more than three (3) years, and the sexual act in question is proven to be consensual, non-abusive, and non-exploitative: Provided, further, That if the victim is under thirteen (13) years of age, this exception shall not apply.
As used in this Act, non-abusive shall mean the absence of undue influence, intimidation, fraudulent machinations, coercion, threat, physical, sexual, psychological, or mental injury or maltreatment, either with intention or through neglect, during the conduct of sexual activities with the child victim. On the other hand, non-exploitative shall mean there is no actual or attempted act or acts of unfairly taking advantage of the child’s position of vulnerability, differential power, or trust during the conduct of sexual activities.”
- Supplementary Report on the Status of Adolescents’ Reproductive Rights in the Philippines: 2020 Submission to the Committee on the Rights of the Child
- The Status of Adolescents’ Reproductive Rights in the Philippines: 2020 Submission to the Committee on the Rights of the Child
- The Center’s Work in the Philippines