Lyceum of the Philippines University - College of Law

The Sweetheart Doctrine and its Inapplicability

in Modern Philippine Jurisprudence

Josiah Immanuel P. Balgos

Legal Research and Computer

Atty. Laura C.H. Del Rosario

May 26, 2018

Josiah Immanuel P. Balgos
Atty. Laura C.H. Del Rosario
Legal Research
May 26, 2018

The Sweetheart Doctrine and its Inapplicability

in Modern Philippine Jurisprudence

by

JOSIAH IMMANUEL P. BALGOS

A Final Examination Submitted to the Graduate Faculty of Lyceum of the Philippines University
College of Law in Partial Fulfillment of the Requirements for the Subject of Legal Research
Administered by Atty. Laura C.H. Del Rosario

BACHELOR OF LAWS

MAKATI, PHILIPPINES

2018
Josiah Immanuel P. Balgos
Atty. Laura C.H. Del Rosario
Legal Research
May 26, 2018

ABSTRACT

The Sweetheart Theory is a defense that has overstayed its welcome in

Philippine Courts, given for a fact that the courts are still arguing over the rationality and
applicability of the theory. This paper will examine the application of the Sweetheart
Theory within the Philippine context, the legislative history of the Sweetheart Theory
and its congruence with other countries’ version of it such as Spousal Privilege, Marital
Exemption, Implied Consent Theory, Coverture and the Unities Theory among others,
the assessment of possible arguments existing in Philippine jurisprudence pertaining to
the Sweetheart Theory and its inapplicability to today’s proceedings.

INDEX WORDS: Sweetheart Theory, Marital Rape, Spousal Rape, Spousal Privilege,
Marital Exemption, Implied Consent Theory,
Josiah Immanuel P. Balgos
Atty. Laura C.H. Del Rosario
Legal Research
May 26, 2018

Love. It is inherent in every human being, whether they acknowledge or deny it. It
is noted in the Philippine 1987 Constitution’s Preamble1,

“We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a
just and humane society and establish a Government that shall embody our ideals and aspirations,
promote the common good, conserve and develop our patrimony, and secure to ourselves and our
posterity the blessings of independence and democracy under the rule of law and a regime of truth,
justice, freedom, love, equality, and peace, do ordain and promulgate this Constitution.”

whereas the word “Love” itself seems not appropriate to even exist in the 1987
Constitution, and yet, there it stands, despite legal debates and arguments. The word
"Love", in the 1987 constitution, as human love is ultimately perceived of, pertains to the
highest and strongest expression tantamount to the will of an individual, or a form of
metaphoric glue that binds the nation together in times of calamity or war. As it is
present in the Constitution, it is occasionally considered as a form of inherent consent in
times of crime.

According to the United Nations, there are only 52 countries that criminalize rape
within the institution of marriage, which pertains to the fact that marital rape is not even
reflected as rape in more than 140 countries across the globe. Evidently, there is no
existing crime of marital rape in the Revised Penal Code.

The crime of Rape, pursuant to Art. 266-A in the Philippine Revised Penal Code2,
as amended by Republic Act 8353 or The Anti-Rape Law of 1997, states that:

“Article 266-A. Rape: When And How Committed. - Rape is committed:

1) By a man who shall have carnal knowledge of a woman under any of the following
circumstances:

a) Through force, threat, or intimidation;

b) When the offended party is deprived of reason or otherwise unconscious;
c) By means of fraudulent machination or grave abuse of authority; and;
d) When the offended party is under twelve (12) years of age or is demented, even though
none of the circumstances mentioned above be present.

2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof,
shall commit an act of sexual assault by inserting his penis into another person's mouth or anal
orifice, or any instrument or object, into the genital or anal orifice of another person.”

1
Preamble ,The Philippine 1987 Constitution,
2
Art. 266-a, Philippine Revised Penal Code, as amended by RA 8353
Josiah Immanuel P. Balgos
Atty. Laura C.H. Del Rosario
Legal Research
May 26, 2018

Now the second paragraph of the provision states that any person, who under
any circumstances commits the act of sexual assault to the victim. Any person, as the
law has stated, would be committing rape if there was no consent given, as stated by
M.J. Anderson3,

“The crime of rape is perhaps even more problematic for all concerned when the assailant
is someone known and trusted by the victim-such as a friend, a relative, or worst of all, a spouse. It
is obviously most difficult to prove lack of consent in a spousal rape situation, and frequently
victims of spousal rape will not report the crime”

The public acceptance of Marital Rape in many parts of the world is also known
as “Spousal Privilege”. The legislative history Spousal Privilege or Marital Exemption
stemmed from Common Law, through a British Chief Justice by the name of Sir
Matthew Hale, he quotes from his book entitled “History of the Pleas of the Crown” or
Historia Placitorum Coronæ4:

“The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by
their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her
husband, which she cannot retract”

Hale’s statement, at that time, had the false belief that a woman’s consent is
inherent from the moment they entered into the contract of marriage with their spouse,
which was based off from centuries-old notions that women were a form of chattel or
property to their husbands5. Although Hale did not invent this concept, he subscribed to
it as it had been accepted throughout history.6 Since a husband could not take what he
already owned, a husband was no more capable of raping his wife than an owner was

3
Melisa J. Anderson, Lawful Wife, Unlawful Sex - Examining the Effect of the Criminalization of Marital Rape in England and
the Republic of Ireland, 27 GA. J. INT’L & COMP. L. 139 (1998).
4
Hale, Sir William.p. 626 Historia Placitorum Coronæ. 1st ed., vol. 1, In the Savoy [London] : Printed by E. and R. Nutt, and
R. Gosling ,for F. Gyles., 1736, www.archive.org/details/historiaplacitor01hale.
5
To Have and To Hold: The Marital Rape Exemption and the Fourteenth Amendment, 99 HARV. L. REV. 1255, 1256
(1986), https://onlinelibrary.wiley.com/doi/pdf/10.1111/j.1468-2230.2008.00683.x
6
Adamo, Sonya A. "The Injustice of the Marital Rape Exemption: A Survey of Common Law Countries." American University
International Law Review 4, no. 3 (1989): 555-589. See Also Freeman, "But If You Can't Rape Your Wife Who(m) Can You
Rape?: The Marital Rape Exemption Re-examined”, 15 FAM. L.Q. 1, 9 (1981). Since no authority was cited and Hale was
known as a stringent misogynist, it is quite possible that he did create the marital exemption rule; see also Comment, The
Marital Exemption to Rape: Past, Present and Future, DEr. C.L. REV. 261, 263 n.13 (1978) (stating that a review of earlier
English law illustrates similar ideas). For example, from 1066 through 1307 an alleged rapist could go unpunished if the
victim accepted the accused as her husband with the consent of her parents and the judiciary,
www.digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1682&context=auilr and
http://www.jstor.org/stable/25739275
Josiah Immanuel P. Balgos
Atty. Laura C.H. Del Rosario
Legal Research
May 26, 2018

of stealing his own property.7 Even during Roman law, the woman's father would
provide goods for the new husband and wife, which was known as dos 8, wherein:

"All that property which on marriage is transferable by the wife by herself or by another to
the husband with a view of diminishing the burden which the marriage will entail upon him”.

The interpretation of women, however, improved during the Industrial Age, as

there were additional rights provided for women, such as permitting them to be a part of
the work force that was usually dominated by their male counterparts, as well as retain
the income they have earned from their labor. However, prior to the passage of the
Married Women’s Property Acts in the mid-1800s, married women were not able to own
property, enter into contracts, keep their own earnings, or sue.9 This was known as
Coverture10, whereas:

“the woman’s legal existence as an individual was suspended under “marital unity,”
a legal fiction in which the husband and wife were considered a single entity: the husband. The
husband exercised almost exclusive power and responsibility and rarely had to consult his wife to
make decisions about property matters. Coverture rendered a woman unable to sue or be sued on
her own behalf or to execute a will without her husband’s consent and, unless some prior specific
provision separating a woman’s property from her husband’s had been made, stripped a woman of
control over real and personal property. Coverture was disassembled in the United States through
legislation at the state level beginning in Mississippi in 1839 and continuing into the 1880s. The
legal status of married women was a major issue in the struggle for woman suffrage.”

A number of principles that support the common law Marital Exemption based on
Implied Consent Theory and the Unities Theory. The arguments set forth below defend
the common law spousal rape exemption.

Evidentiary problems make marital rape difficult to prove.11 Without the marital
rape exemption, a vindictive wife may accuse her innocent husband of rape to blackmail
him into giving her a favorable property settlement or custody arrangement in divorce
proceedings.12 The criminal charge of rape is not the appropriate or correct way to deal

7
Mitra,C.L. "For She Has no Right or Power to Refuse Her Consent",CRIM. L. REV. 558, 560, 1979, cited from Siegel, L.W.
p.364, “The Marital Rape Exemption: Evolution to Extinction”, 43 Clev. St. L. Rev. 351, 1995,
https://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?article=1610&context=clevstlrev
8
p.489, Black’s Law Dictionary, 6th Edition, 1990, Ateneo Law Library
9
McMahon, Jennifer,”Marital Rape Laws, 1976-2002: From Exemptions To Prohibitions”. B.A., The University of Georgia,
2005.
10
Britannica, The Editors of Encyclopaedia. “Coverture.” Encyclopædia Britannica, Encyclopædia Britannica, Inc., 8 Oct.
2007, www.britannica.com/topic/coverture.
11
See Adamo, Supra note 5, Note, The Marital Rape Exemption, 52 N.Y.U. L. Rev. 306, 310 (1977) [hereinafter Note, The
Marital Rape Exemption]. The author labels as a legal fiction the rationale underlying the spousal exemption which makes a
woman her husband's property or other half.
12
Supra Note 9, p. 314, The Marital Rape Exemption(stating that a justification for spousal immunity is that scheming wives
will lie about husbands raping them to punish or blackmail their husbands).
Josiah Immanuel P. Balgos
Atty. Laura C.H. Del Rosario
Legal Research
May 26, 2018

with the marital rape conflict; family law provides a better alternative.13 Eliminating
spousal immunity invades the sacred family home and promotes discord, thereby,
preventing reconciliation.14

The aftermath of many marital rape victims never recover, with few remedies
available, women who are raped leave their husbands, but many others stay since they
believe the men will change or they cannot sustain themselves or want to keep families
intact. Separation and divorce provide no easy answer for the reason that retribution is
frequent. Experts say the period of separation before divorce is one of the most
dangerous times for women who have been raped by their husbands. 15

The "alternative remedies" justification is an easy way for supporters of the

marital exemption to evade the quandary posed by marital rape. All of these modem
justifications have been advanced to stem the growing tide of states which have
abolished the exemption. The next logical step in the national campaign for complete
abolishment of the marital exemption is to change the partial exemptions in the majority
of the states to reflect complete abolishment of any vestiges of spousal immunity. This
can be achieved either through statutory changes or judicial decisions. The starting
point is with an analysis of changes and decisions in groundbreaking, progressive
states.16

In other countries, such as India, the Gujarat High Court through Justice J.B.
Pardiwala pronounced that a husband cannot be prosecuted for forcing himself on his
wife as marital rape is not covered under Section 375 of the Indian Penal Code, which
provides that sexual intercourse or sexual acts by a man with his own wife, the wife not
being under 18 years of age, is not rape. However, Pardiwala also elucidates that a wife
can initiate proceedings against her husband for unnatural sex under Section 377 of the
Indian Penal Code.17

Considering that the Sweetheart Theory is the Philippine version of the Spousal
Privilege and Marital Exemption, it is highly similar due to the fact that Philippine
13
Supra Note Freeman, "But If You Can't Rape Your Wife Whom Can You Rape?". The Marital Rape Exemption Re-
examined, 15 FAM. L.Q. 1, 9 (1981), http://www.jstor.org/stable/25739275
14
Backhouse & Schoenroth, p.177,”A Comparative Study of Canadian and American Rape Law”, 7 CANADA-U.S. L.J. 173,
174 (1984), https://scholarlycommons.law.case.edu/cuslj/vol7/iss/9 (stating that a common rationale for keeping the
immunity is that it retains the need for privacy necessary in a marriage, and abolishing such an immunity would lead to
marital collapse)
15
Note, A version of this article appears in print on December 29, 1984, on Page 1001005 of the National edition with the
headline: New Laws Recognizing Marital Rape As A Crime, https://www.nytimes.com/1984/12/29/us/new-laws-recognizing-
marital-rape-as-a-crime.html
16
Siegel, L.W. p.364, “The Marital Rape Exemption: Evolution to Extinction”, 43 Clev. St. L. Rev. 351, 1995,
https://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?article=1610&context=clevstlrev
17
“Gujarat High Court Underlines Need to Make Marital Rape Criminal Offence.” Hindustan Times, 2 Apr. 2018,
www.hindustantimes.com/india-news/marital-rape-not-an-offence-rules-gujarat-high-court/story-
S02bsKiktb2ScLOgLehDFI.html.
Josiah Immanuel P. Balgos
Atty. Laura C.H. Del Rosario
Legal Research
May 26, 2018

legislative system is a hybrid, where common law and civil law coexist in a single
system so that ideally, a hybrid legal system, such as that of the Philippines, is better
able to cope with the weaknesses inherent in, and be able to draw from the strengths
offered by, both the civil law and common law systems. Both systems have
philosophical mechanisms to promote certain important but contending and often
conflicting aims: predictability by the doctrine of stare decisis, and flexibility and growth
by the rules of equity and the techniques for limiting and distinguishing precedent in the
common law system; whereas, in the code systems of civil law, predictability and
stability are assured by the “written law” of the codes, while flexibility and growth are
permitted, internally, by general clauses tempering rigid rules, and externally by
interpretation, made more supple by the absence of a formal rule of stare decisis.18

The Sweetheart Theory, as described in the case of People vs. Olesco19, states that:

"In rape, the ‘sweetheart’ defense must be proven by compelling evidence: first, that the
accused and the victim were lovers; and, second, that she consented to the alleged sexual
relations. The second is as important as the first, because this Court has held often enough that
love is not a license for lust."

The ‘Sweetheart Theory’ or ‘Sweetheart Defense’ is an oft-abused justification

that rashly derides the intelligence of this Court and sorely tests our patience. For the
Court to even consider giving credence to such defense, it must be proven by
compelling evidence. The defense cannot just present testimonial evidence in support
of the theory, as in the instant case. Independent proof is required – such as tokens,
mementos, and photographs. There is none presented here by the defense.20

To prove the defense, intimacies between the lovers, such as loving caresses,
cuddling, tender smiles, sweet murmurs or any other affectionate gestures that one
bestows upon his or her lover would have been seen. In People v. Napudo21, where the
accused likewise invoked the sweetheart defense, the Court held that:

“As an affirmative defense, the allegation of a love affair must be supported by convincing
proof other than the self-serving assertions of the accused. It cannot be given credence in the
absence of evidence, such as notes, gifts, pictures, mementos or other tokens independently
proving its existence; nor can it be given weight where no other witness was presented to testify
that the accused and the complainant were indeed sweethearts. The sweetheart defense is
considered an uncommonly weak defense because its presence does not automatically negate the
commission of rape. The gravamen of the crime of rape is sexual congress of a man with a woman

18
Villanueva, C. L.“A Comparative Study Of The Judicial Role Andits Effect On The Theory On Judicial Precedentsin The
Philippine Hybrid Legal Sytems.” Scribd, Scribd, 1989, www.scribd.com/document/40970260/Philippine-Hybrid-Legal-
System.
19
G.R. No. 174861, April 11, 2011
20
People v. Barangan, 534 SCRA 570
21
People v. Napudo, G.R. No. 168448, October 8, 2015
Josiah Immanuel P. Balgos
Atty. Laura C.H. Del Rosario
Legal Research
May 26, 2018

without her consent. Hence, notwithstanding the existence of a romantic relationship, a woman
cannot be forced to engage in sexual intercourse against her will.”

Atty. Persida Acosta gave her thoughts on the issue, where she stated that just
for the fact that someone is in a relationship that the commission of rape shall be
impossible or nil between the parties concerned. The gist of the offense is having carnal
knowledge with a person without the latter’s consent22. Moreover, in the aforementioned
case it was also observed that:

“The fact alone that two people were seen seated beside each other, conversing during a
jeepney ride, without more, cannot give rise to the inference that they were sweethearts. Intimacies
such as loving caresses, cuddling, tender smiles, sweet murmurs or any other affectionate
gestures that one bestows upon his or her lover would have been seen and are expected to
indicate the presence of the relationship.”23

The absence of spermatozoa, however, in the private complainant’s sex organ

does not disprove rape. It could be that the victim washed or urinated prior to her
examination, which may well explain the absence of spermatozoa. It is well settled that
penetration of the woman’s vagina, however slight, and not ejaculation, constitutes
rape.24 For rape to be consummated, full penetration is not necessary. Penile invasion
necessarily entails contact with the labia. It suffices that there is proof of the entrance of
the male organ with the labia of the pudendum of the female organ. Penetration of the
penis by entry into the lips of the vagina, even without rupture or laceration of the
hymen, is enough to justify a conviction for rape. To repeat, the rupture of the hymen or
laceration of any part of the woman’s genitalia is not indispensable to a conviction for
rape.25

In rape cases, the credibility of the victim is almost always the single most
important issue.26 The three guiding principles described in the case of People vs.
Jastiva27, pertaining to rape prosecutions are as follows:

“(1) an accusation of rape is easy to make, and difficult to prove, but it is even more
difficult to disprove; (2) bearing in mind the intrinsic nature of the crime, the testimony of the
complainant must be scrutinized with utmost care and caution; and (3) the evidence of the
prosecution must stand or fall on its own merits; and cannot draw strength from the weakness of
the defense. So, when a woman says that she has been raped, she says in effect all that is
necessary to show that the crime of rape was committed. In a long line of cases, the Supreme

22
Acosta, Atty. Persida. “Being ‘Sweethearts’ Does Not Negate Rape.” Manila Times , Manila Times Newspaper, 10 May 2017,
www.manilatimes.net/sweethearts-not-negate-rape/326496/. Dear PAO Section
23 Supra Note 21, Ibid.
24
People v. Dy, G.R. Nos. 115236-37. January 29, 2002
25
People v. Manuel, 298 SCRA 184
26
People v. Ceballos, Jr., 533 SCRA 493
27
People v. Jastiva, G.R. No. 199268, February 12, 2014.
Josiah Immanuel P. Balgos
Atty. Laura C.H. Del Rosario
Legal Research
May 26, 2018

Court has held that if the testimony of the rape victim is accurate and credible, a conviction for rape
may issue upon the sole basis of the victim’s testimony. This is because no decent and sensible
woman will publicly admit to being raped and, thus, run the risk of public contempt unless she is, in
fact, a rape victim.”

If put in congruency with the sweetheart theory, the usage of it is easy to say, but
difficult to prove. Under American Jurisprudence, it is held that in the prosecution for
forcible rape, the prosecutrix must relate the very acts done on her part to resist, and
mere general statements, involving her conclusions, that she did her utmost and the
like, will not suffice to establish the fact of resistance. That there is no indication of
violence is a strong circumstance showing lack of resistance, and where there is no
evidence of yielding through fear, the absence of any injury to the assailant or tearing or
disarray of the clothing is strong evidence of willingness and lack of resistance.28

28
Note: This is an excerpt from the appeal brief of L.Cpl. Daniel Smith, People v. Smith, CA-G.R. CR - H.C. No. 02587