Slightest penetration consummates rape | The Manila Times

Dear PAO,

C wants to file a complaint for rape, but she is worried that it might just be dismissed because, from what she was told, the male organ should have penetrated inside the female organ. What happened to C was that she was walking on her way home when the assailant grabbed her and forced himself despite C’s resistance. After ripping off C’s dress and underwear, he tried to force his penis inside her vagina but was unable to. Although C still feels traumatized, not only because of the physical pain but also due to the mental distress of having flashbacks of the incident, she is determined to pursue filing a complaint. She has already sought a medical examination, and the results are underway. C just wants to know if the rape can still be considered consummated even if the penis of the assailant did not completely penetrate inside her vagina.

Jessa

Dear Jessa,

Republic Act 8353, otherwise known as the “Anti-Rape Law of 1997,” which amended the Revised Penal Code, states that one of the ways that the crime of rape is committed is when a man shall have carnal knowledge of a woman through force. Specifically, the law provides:

“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; x x x”

In the situation of C, she may pursue filing a complaint for rape against her assailant as the sexual congress between them was against her will and was carried out through force.

And, as with other crimes, the particular stage of execution of the criminal act must be determined for the proper filing of the complaint. In the situation which you have shared, it appears that the assailant tried to force his penis inside the vagina of the victim but was unsuccessful. In the recent case decided by the Supreme Court, Associate Justice Ramon Paul Hernando clearly explained that there is consummated rape despite the fact that the penis of the assailant did not completely penetrate inside the vagina of the victim as long as the penis of the assailant was introduced or had touched the cleft of the labia majora of the victim, even in the slightest manner, and not just mere grazing or skin contact between the penis and outer portion of the victim’s vagina. Particularly:

“x x x the Court now reiterates, even as it clarifies, that rape of a female victim by a male person through penile penetration reaches the consummated stage as soon as the penis penetrates the cleft of the labia majora, also known as the vulval or pudendal cleft, or the fleshy outer lip of the vulva, in even the slightest degree. Simply put, mere introduction, however slight, into the cleft of the labia majora by a penis that is capable of penetration, regardless of whether such penile penetration is thereafter fully achieved, consummates the crime of rape. x x x

“With careful and decisive reference to the anatomical illustration above, the Court clarifies that when jurisprudence refers to ‘mere touching,’ it is not sufficient that the penis grazed over the pudendum or the fleshy surface of the labia majora. Instead, what jurisprudence considers as consummated rape when it describes a penis touching the vagina is the penis penetrating the cleft of the labia majora, however minimum or slight. Similarly, a mere grazing by the penis of the fleshy portion, not the vulval cleft of the labia majora, will also constitute only attempted rape and not consummated rape, since the same cannot be considered to have achieved the slightest level of penetration. Stated differently, the Court here elucidates that ‘mere touch’ of the penis on the labia majora legally contemplates not mere surface touch or skin contact, but the slightest penetration of the vulval or pudendal cleft, however minimum in degree.” (Emphases in the original) (People of the Philippines vs. XXX, GR 263227, Aug. 2, 2023)

Corollary, the fact that the penis of her assailant did not completely penetrate inside her vagina is not a hindrance for C to pursue filing her complaint for consummated rape, provided that she can establish, through the results of her medical examination or otherwise, that indeed the penis of her assailant touched the cleft of her labia majora when the unfortunate incident happened.

We hope that we were able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated on.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected]