SAVING MAGDALENE: An Analysis as to the Necessity of

Decriminalizing Prostituted Women Amending for its Purpose

Article 202 of the Revised Penal Code as Amended by Republic
Act 10158

SOLIMAN ALLEN V. BAUTISTA

Advance Legal Writing

March 18, 2018

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“Prostitution will always lead into a moral quagmire in democratic

societies with capitalist economies; it invades the terrain of intimate sexual

relations yet beckons for regulation. A society's response to prostitution goes to the

core of how it chooses between the rights of some persons and the protection of

others.” - Barbara Miele Hobson, Uneasy Virtue1

Us, humans, are granted with the privilege to act upon our own free will. It

is a gift with a corresponding responsibility to ensure that our acts fall within what

men consider as righteous and acceptable in accordance with social norms and

tradition. For if one is found doing an act considered as abominable in the eyes of

many, such person will be treated as an infectious disease that should be avoided at

all costs. Among those acts which are considered to be abominable is the act of

selling one’s body for pleasure or in consideration of money or profit which is

commonly referred to as prostitution.

Thinking lowly of prostitutes is not too different from the way people, who

are members of one big organized religious cult, apply a hateful regard towards the

infidels who do not subscribe to their beliefs. It is the same as the racism many

Filipinos are born into owing to their parents’ routine and casual use of slurs

like “bumbay” or chek-hwa or beho or egoy in everyday conversation. In short,

like the way they acquire their famously banal racism and religious zealotry,

1
Barbara Miele Hobson, The Uneasy Virtue, Cambridge Publishing, November 24, 1987

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Filipinos are taught to regard prostitutes in this judgmental way — by their

parents, by their educators, by their elders, and by their government.2

This way of thinking of this judgmental society leads many to conclude

that prostitutes are a disgrace in the society and that whatever abuse or violence

they encounter should be treated as self-inflicted. It is easy for people to put down

the hammer and render judgment as to who they think deserves justice and

protection, and sadly, for most, prostitutes are not one of them. Most people find it

hard to cast sympathy to the prostitutes even when the abuse and human rights

violation against the latter are rampant. This is what the proponent sees as the

reason why the enactment of R.A. 10158 otherwise known as “An Act

Decriminalizing Vagrancy of 2012” was overlooked. This is despite the fact that

the said amendment is discriminatory for nurturing gender inequality and for being

contradictory with existing laws not only in our country but also laws under

pertinent UN Charters.

Prior to the amendment of Article 202 of the Revised Penal Code, the said

provision penalizes vagrants and by the term “vagrants”, it includes: (1) Those

who loiter the streets including houses of the ill-famed without any means of

support or subsistence; (2) Those who habitually associate themselves with

prostitution; (3) pimps; and (4) Prostitutes. After the amendment of the said law,

Article 202 now reads:

2
Kate Natividad (“To All Judgmental Filipinos”) Retrieve From: http: / getrealphilippines.com
/blog/2012/10/to-all-you-judgmental-filipinos-prostitutes-are-people-too/

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"Article 202. Prostitutes; Penalty. – For the purposes of this article,

women who, for money or profit, habitually indulge in sexual intercourse
or lascivious conduct, are deemed to be prostitutes.
"Any person found guilty of any of the offenses covered by this article shall
be punished by arresto menor or a fine not exceeding 200 pesos, and in
case of recidivism, by arresto mayor in its medium period to prision
correctional in its minimum period or a fine ranging from 200 to 2,000
pesos, or both, in the discretion of the court."

Notably, the above provision focuses law enforcement and legal sanctions

“exclusively” on prostituted women. This is clearly an affront to women’s rights as

it continues to criminalize prostituted women while letting the customers and the

pimps go unscathed. This is a glaring manifestation of gender inequality which the

paramount law of the land aims to completely eradicate, if not, substantially

lessen.
The necessity for the further amendment of the said law is not only

anchored upon gender inequality. The author of this article also found a solid basis

that leaves no hole to mandate and require Congress to pass another amendatory

law, and this time, it has to decriminalize the prostituted women as well.

Republic Act 9710, otherwise known as the Magna Carta of Women

(MCW for brevity) is a special comprehensive women's human rights law that

seeks to eliminate discrimination through the recognition, protection, fulfilment

and promotion of the rights of Filipino women, especially those belonging in the

marginalized sectors of the society. It conveys a framework of rights for women

based directly on international law. It establishes the Philippine government’s

pledge of commitment to the Convention on the Elimination of All Forms of

Discrimination against Women's (CEDAW) Committee in its 36th Session in 2006

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and to the UN Human Rights Council on its first Universal Periodic Review in

2009.

In addition to guaranteeing substantive rights, the MCW establishes the

responsibility of the government to take actions in order to end discrimination

against women. It provides that the Philippines government must "ensure the

substantive equality of men and women" and mandates the State to take steps to

review, amend or repeal existing laws that are discriminatory towards women.

However, one may argue that while it is the duty of the State to provide for

the protection of women, it may not be applicable to prostituted women given that

they are treated as criminals under Article 202 of the Revised Penal Code as

Amended by R.A. 10158. The answer lies in Section 30 of R.A. 9710 which treats

the prostitutes as Women in Especially Difficult Circumstances. 3 They are

considered victims and thus, entitled to the protection that the Constitution

provides.

Furthermore, in the recent case of People vs Lalli4, the Supreme Court held

that Filipinas who were illegally recruited in Malaysia and who were forced to

work as prostitutes are victims. The Court held that the criminal case of

Trafficking in Persons as a Prostitute is an analogous case to the crimes of

seduction, abduction, rape, or other lascivious acts. In fact, it is worse. To be

3
Section 30. Women in Especially Difficult Circumstances. - For purposes of this Act, "Women in
Especially Difficult Circumstances" (WEDC) shall refer to victims and survivors of sexual and physical abuse,
illegal recruitment, prostitution, trafficking, armed conflict, women in detention, victims and survivors of rape
and incest, and such other related circumstances which have incapacitated them functionally. Local
government units are therefore mandated to deliver the necessary services and interventions to WEDC under
their respective jurisdictions.
4
GR No. 195419

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trafficked as a prostitute without one’s consent and to be sexually violated four to

five times a day by different strangers is horrendous and atrocious. There is no

doubt that Lolita experienced physical suffering, mental anguish, fright, serious

anxiety, besmirched reputation, wounded feelings, moral shock, and social

humiliation when she was trafficked as a prostitute in Malaysia.

Section 12 of the the Magna Carta of Women 5 also provides for the duty of

the State to amend or repeal laws which are discriminatory to women, which,

among others, include Article 202 of the Revised Penal Code (RPC) as amended.

For purposes of academic discussion, the proponent deems it necessary to

reiterate the prevailing doctrine when it comes to conflicting laws. It is very clear

that Article 202 as amended by RA 10158 (Vagrancy Act of 2012) runs counter

with Section 30 of RA 9710 (Magna Carta of Women), but the question is, which

one will prevail?

It is elementary that in cases of conflict between two existing laws, one

general law and the other a special law, efforts must first be exerted to harmonize

the two laws. In the event that the two laws cannot co-exist or when the two laws

are contradictory on all material points, the special law prevails. In this case, the

Magna Carta of Women, being the special law, must prevail over Article 202 of the

Revised Penal Code, a general law.

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Section 12. Equal Treatment before the Law. - The State shall take steps to review and, when
necessary, amend and/or repeal existing laws that are discriminatory to women within three (3) years from the
effectivity of this Act.

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It is noteworthy that all persons, whatever their station in life, is covered by

the mantle of protection which the law and justice provides. Such protection

extends especially to those who are weak and those who cannot protect themselves

from harm and danger arising out of their own circumstances. Prostituted women

are victims and they must be given understanding, protection and care. It well-

settled in our jurisdiction that those who have less in life, must have more in law,

however, this principle would not be realized if the law itself convicts and

penalizes the victims.

Therefore, it is humbly submitted that there is a need to further amend

Article 202 as amended by RA10158 and decriminalized prostituted women. This

is for the reasons that: it nurtures gender inequality; it runs counter with the special

law of Magna Carta of Women; it is the duty of the State to protect women

especially those who are in difficult circumstances. To save Magdalene is

tantamount to serving justice to those who are entitled to it. The time is ripe for our

law makers to take heed to what law, equity and substantial justice require,

otherwise, the very purpose of the rule of law will complete be defeated.

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