It was a tiring day for then-16-year-old Harry (not his real name). He just got home from two consecutive weddings, and so – right after arriving at their house in San Jose City in Nueva Ecija – he asked his mother if he could skip school to just rest.
Harry’s mother indulged him; but she also asked Harry to look after a younger sibling as she had to do some errands. On her way out, Harry saw his mother speak to the nine-year-old son of their neighbor outside their house; he said he was just wandering to catch a dragonfly.
With his mother gone, and before getting some sleep, Harry decided to harvest some mangoes from the tree beside their house. And while atop the tree, he noticed that the nine-year-old boy was no longer in the street. After getting down from the tree, he went inside their house, locked the door, and then slept.
It seemed that only a few minutes passed, but Harry was woken by knocking on their front door. He got up to open the door; it was the nine-year-old boy’s mother, asking about the clothes Harry wore to one of the weddings that day. When Harry moved to go inside the room to get the pants he wore, the nine-year-old boy surfaced from inside the room.
“Anong ginagawa mo diyan (What are you doing there)?” the mother asked her son, flabbergasted.
He said “tinitingnan ko lang ‘yung kapatid ni Harry (I was just looking at the younger brother of Harry).”
Harry joined the conversation, saying he didn’t know that the boy was even inside.
The boy’s family went straight to the police station, accusing Harry of child molestation. Harry was eventually taken into custody.
Though he was only 16 then, Harry was detained at the lock-up facility of the Philippine National Police (PNP). This is – by itself – a violation of Republic Act 9344 or the Juvenile Justice Law of 2006, which sets the minimum age of criminal liability at 15 years old. This means that those between 15 to 18 years old (and Harry was 16 when the alleged rape happened) may be detained in youth centers and go through rehabilitation programs, while those under 15 years old are exempted from criminal liability and undergo intervention.
After a month with the PNP, Harry was transferred to the custody of the Bureau of Jail Management and Penology (BJMP), an agency of the Department of the Interior and Local Government (DILG), mandated to direct, supervise and control the administration and operation of all jails in the Philippines.
Here’s a sobering fact: the incarceration rate of lesbian, gay and bisexual (LGB) people is up to three times than that of the general population. Sexual minorities (or people who self-identify as LGB and people who do not identify as LGB but reported a same-sex sexual experience) comprise: 9.3% of men in prison, 6.2% of men in jail, 42.1% of women in prison, and 35.7% of women in jail.
Note: As is often used, “jails” are facilities that hold inmates awaiting trial or serving short sentences, while “prisons” are facilities for those serving their (often longer) sentences.
Now this is worth stressing: Even if this has already been (partly) studied overseas, this continues to be largely ignored in the Philippine context.
One study – “Incarceration Rates and Traits of Sexual Minorities in the United States: National Inmate Survey, 2011–2012″, co-authored by Ilan H. Meyer, PhD, Andrew R. Flores, PhD, Lara Stemple, JD, Adam P. Romero, JD, Bianca D.M. Wilson, PhD, and Jody L. Herman, PhD and published in the American Journal of Public Health – found that sexual minorities are not only incarcerated at disproportionately high rates, but that once incarcerated, they are more likely to experience mistreatment, harsh punishment and sexual victimization.
A LIFE IN FEAR
“Nung first time kong pumasok sa loob ng selda, binuhusan ako ng isang pulis ng tubig habang natutulog pa ako (The first day I got detained, a police officer splashed water on me while I was sleeping),” Harry recalled. Dazed and confused, and not knowing who the person was (because she was not wearing uniform), “tinanong ko siya kung naka-detain din ba siya; hindi ko alam na pulis siya. Nalaman ko lang nung bigla niyang pinakuha yung batuta niya (I asked if she was also a detainee; I had no idea she was a police officer. The moment she asked for her club/cudgel, everything just came to me).”
There was a time when Harry was almost transferred to Boystown (a facility for offending minors), but his mother pleaded for this not to be done since he would then be too far from home and she would be unable to visit him regularly. And because he did not entirely understand what was being discussed, all Harry said he could do was cry, “too scared of everything.”
Bullying/getting maltreated was a “norm” particularly for those who just enter prison.
In Harry’s case, he was beaten – an act, he was told, was “a way to welcome new inmates.”
“Ano yung ginagawa ng mga jail officers? Wala lang din. Wala silang ginagawa kasi minsan parang sila na din yung nagsasabi o nagbibigay ng memo na i-welcome yung mga bagong inmates (The jail officers are not acknowledging this issue. They are not doing anything about it because there are times when they, themselves, are the ones who give orders to welcome new inmates in that way),” Harry said.
Inside the jail, minors are supposed to be separated from the adult inmates. But this policy is also amendable, depending on the whims of the warden. In their case, an inmate who was also a minor tried to escape because he wanted to celebrate his birthday outside the prison, but “after that incident, the (minors were already treated as adult inmates), included with the adult prisoners.”
Men and women have separate sections; but transgender women are mixed with men.
“Wala silang sariling lugar doon sa kulungan. Isinasama sila sa mga lalaki kasi para sa mga tao doon, lalaki pa din sila (There’s no designated place for them. The jail officers still see/treat them as men),” Harry said.
Also as big as a risk for new inmates like Harry was getting raped.
“Meron talagang rape na nangyayari sa loob. Lalo na sa mga bagong pasok. Yun din minsan ang parang pinaka-welcome ng mga inmates na lalaki sa mga inmates na bakla. Kahit ayaw mo, talagang pipilitin at pipilitin ka (It is undeniable that rape occurs inside the jail. They specially do it to the newcomers. This is how straight inmates would welcome gay people in their cell. Even if you don’t want to, you will be forced)” Harry recalled.
Harry was not exempted from this experience because, “sabihin ko man na ayaw ko, hindi pa din sila pumapayag na huwag kong gawin. Pag sinabi ng isang inmate na gawin namin, wala na lang din akong magawa kundi sumunod na lang (Even though I didn’t want to, I would never have a choice. If a straight inmate asked for it, you just have to obey them),” Harry said. “Na-experience ko yun as a welcome sa akin nung pagpunta ko don (I experienced it as a welcome greeting when I first got there).”
At 16, Harry was raped in jail by a 23-year-old.
“Pag na-gustuhan ka nila, may mga grupo don tapos lalapitan ka nila. Papapasukin ka nila sa lugar nila tapos gagalawin ka nila. Mapapasunod ka na lang kesa masaktan ka (If you caught their interest, groups of boys would approach you and ask you to join them in their cell to rape you. You won’t have any other choice because if you refuse, they will hurt you),” he said.
This maltreatment, by the way, is not exclusive to members of the LGBT community in jail/prison, since “there, no matter what your gender is, they will hurt you if they wanted to.”
Though these may – no doubt – be known to those running the country’s jails/prisons, Harry said that they didn’t have access to any contraceptives and/or protection while inside the jail/prison.
“Hindi sila nakakapag-provide ng ganun. Kahit minsan nasusubukan namin magkaroon ng sakit, hindi din kami nabibigyan ng kahit anong gamot. Itinatawag lang namin sa mga magulang namin yung mga ganun (They can’t provide things like that. Even at times when we were sick, no medicines were made available to us. We still rely on our relatives outside),” he said, adding: “Saka pa lang nagkakaroon ng aksyon pag parang mamamatay na yung tao (They only really act when someone is already really close to dying.)”
There was a point in time when Harry said he almost gave up. But he kept telling himself that “hindi yun ang panahon na dapat akong mawalan ng pag-asa dahil naniniwala ako noon na darating at darating yung oras na malalaman talaga kung ano yung totoo (That was not the time for me to just give up. I had faith that the truth will come out),” Harry said.
Much has already been said about prison management in the Philippines.
To start, and as noted by the Human Rights Watch (HRW), critical and chronic overcrowding has long been a perennial topic when discussing the country’s jail facilities. BJMP runs 415 detention facilities in 17 regions, and on average, its jailhouses report 380% overcapacity. In Metro Manila alone, the BJMP’s total cell area of 22,318 square meters, designed for 4,749 detainees; but it currently holds 21,868 detainees (a congestion rate of 361%).
The surprising – and somewhat senseless – thing worth noting here is that between 85% and 90% of the more than 94,000 inmates in the custody of BJMP are awaiting or undergoing trial.
“This makes the Philippines the Southeast Asian country with the highest number of pretrial and remand detainees and the second highest in all of Asia. Prolonged detention without charge or trial violates international human rights instruments, including Article 9 of the International Covenant on Civil and Political Rights, which the Philippines ratified in 1986. Moreover, it ‘shall not be the general rule that persons awaiting trial shall be detained in custody,’ but rather released with guarantees of appearing for trial,” HRW stated.
HRW also noted that “the injustice of lengthy detention is compounded by the horrific conditions of the jail facilities (with) many detention centers in the Philippines failing to meet the minimum United Nations standards for such facilities, including inadequate amounts of food, poor nutrition, and unsanitary conditions.”
And yes, “torture and other forms of ill-treatment are also common,” HRW similarly noted.
Inside jail, fighting for oneself was never really an option, Harry said, because the inmates could just – eventually – get back to you for fighting back. Giving in to just go with the flow was the attitude being in jail teaches inmates.
Though one time, Harry said he tried to fight for his basic human right of… simply existing and being treated more humanely.
One time, he recalled, a lady jail officer started pushing his chest with her fist and kept asking him if it hurts. It reached a point where the officer was already pointing a knife at him.
“Sabi ko sa kanya, hindi rin ako papayag na gaganunin niya ako. Bilang isang inmate, itrato din naman sana kami na parang tao dahil hindi naman kami iba sa kanila. Kasi sabi ko wala naman kaming ginagawang masama sa kanila. Tapos sabi ko pwede ko silang ireklamo sa ginagawa nilang ‘yun (I told her that I won’t let her do that to me. I may be an inmate, but I am also a person just like her. I told her that I did not do anything wrong to deserve the way she is treating me. I also told her that I could file a complaint on how she is treating me),” he said.
That – fortunately for Harry – silenced and prevented her from doing more harm.
It was while in jail that Harry finished high school under the Alternative Learning System (ALS) program offered there.
ALS is a practical option for learning in the Philippines, offering education to those who could not usually attend and access the formal type of schooling.
It was also while in jail when Harry first found love.
Harry met another minor, and “we became BFs.”
Prisoners who are in relationships and want to have sex may ask for permission from the jail officers who then give them space to do so. “Pwedeng-pwede lalo na pag LGBT ka; pero pag babae at lalaki, medyo mahirap kasi inmate na lalaki at inmate na babae, bawal ‘yun (ipagsama) (The officers are very open to that matter specially if you are a part of the LGBT community. But if the sexual intercourse is going to be between a man and a woman, they don’t allow it).”
Their relationship lasted for a year and three months.
THE WRONGLY ACCUSED
While in jail, Harry was repeatedly told that he would be transferred to “The Mansion” (how inmates called New Bilibid Prison, located in Muntinlupa as the main insular penitentiary designed to house the prison population of the Philippines). He was scared; and he was feeling bad, though not just for himself but also his mother who – even if she just gave birth – continued to regularly visit him.
And then one day, his lawyer – while on a visit – just handed him his already-signed release paper.
“Bigla po akong na-congratulate ng attorney ko dahil nai-panalo ko daw yung kaso ko (My lawyer congratulated me because we won the case),” Harry said.
Relieved, he said he just wanted to have a life outside.
It is worth noting that Harry’s case is not exactly rare. And the warning bells have long been ringing.
In 2004, Free Legal Assistance Group (an NGO that provides legal assistance mainly for human rights cases) conducted a survey of death convicts in the Philippines, and it found “significant figures that could indicate a high judicial error rate”. The survey showed that 73.9% of the convicts were arrested without a warrant, 78.3% were not informed of their constitutional rights at the time of arrest, and – get this! – 90% were not assisted by counsel during police investigation and interrogation.
Perhaps it is also worth noting that 52.2% of the convicts belong to the lowest socioeconomic class.
In 2014, Innocence Project (a litigation and public policy organization composed of human rights advocates in Ateneo, UP Law School and De La Salle University College of Law, headed by Jose Manuel “Chel” Diokno) revealed that some 400 prisoners were wrongfully convicted by the court; most are charged with rape.
And in 2017, the Philippine Daily Inquirer reported of the Supreme Court’s admission that seven in 10 death penalty convictions in 1993-2004 by the lower courts, submitted for automatic review, were wrongly judged. Also, during trials, 59% of the suspects were represented by lawyers from the Public Attorney’s Office, but 54.1% did not have regular consultations with their trial lawyers, and 10.2% never even had a consultation.
So in 2017, during the 17th Congress, former Sultan Kudarat Rep. Horacio Suansing Jr. and Nueva Ecija Rep. Estrellita Suansing filed House Bill 5582 to create a commission mandated to review all cases in which an innocent person was convicted; identify the causes of wrongful convictions; and identify current laws, rules and procedures implicated in each identified cause of wrongful convictions. This is because, the politicians noted, “at present, there is no government entity in our country charged with conducting the independent expert review of wrongful convictions necessary to identify the primary and potential causes of wrongful convictions.”
The same bill was actually originally filed by the late Senator Miriam Defensor Santiago during the 14th Congress and refiled during the 16th Congress. It failed to pass the 17th Congress.
Suffice it to say, in a country like the Philippines, it remains extremely hard to monitor wrongful accusations (as in the case of Harry) and eventual wrongful convictions; much more on how badly this affects members of the LGBTQIA community. And then – yes – add to this the extra layer of hardships experienced by members of the LGBTQIA community if/when they are sent to jail/prison, some of them experienced by Harry, solely because of their sexual orientation, gender identity and gender expression.
THE WORLD OUTSIDE
Upon his release from jail, Harry’s first stop was his brother’s house, where they accused him of escaping. “They only believed me when I showed them the release paper,” he recalled.
Not surprisingly, the complainants weren’t too happy that Harry was released. And this was even if other stories emerged – e.g. that the family of the complainant just paid the medical exam to release a report that stated that the boy was raped; that when the nine- year-old boy was interviewed, he actually denied that he was raped; and that the complainant demanded P30,000 from his family in exchange for his freedom.
Harry was also told that if he wants to turn the tables on them and file a case against his complainants, it would be a very strong lawsuit.
But not that Harry even cared at that point in time. “Pinabayaan ko na lang. Hindi ko inisip na maghiganti pa sa kanila (I moved on. Revenge is not what I wanted),” Harry said.
Harry’s relationship with his fellow minor inmate also did not prosper.
The BF is also already out of jail, Harry said, and he’s already married (to a woman). “Wala naman akong magawa kundi maging masaya na lang para sa kaniya. Pero magkaibigan kami ngayon (There’s nothing I can do but be happy for him. We’re still friends though),” Harry said.
As a freed man since 2016, Harry eventually found a job working for a local government official.
“Sa totoo lang, mahirap talaga ang buhay sa loob ng kulungan kapag kayo ay papasok so kailangan talaga na mag-ingat kayo na wag gumawa ng kasalanan (My advice to the LGBT people is for them to watch their actions because it is very hard to live behind the bars),” Harry said.
And to the incarcerated: “Sana mag-ingat na lang din sila kasi kailangan din nilang maipagtanggol yung sarili nila sa lahat ng maling gawain doon sa loob (To those who are inside, they should take care and learn to fight for themselves from every wrong thing that is happening inside).”