SUMMARY OF RAPE CASES

A. Two kinds of rape

1. People v. Caoili
G.R. No. 196342 & 196848, 8 August 2017

Noel Caoili was charged with rape through sexual intercourse

against his 14-year-old daughter. During the trial, what was proved
was that Caoili kissed the victim’s lips, touched and mashed her
breast, inserted the fourth finger of his left hand into her vagina,
and made a push and pull movement into her vagina with such
finger for 30 minutes.

The RTC convicted Caoili of rape by sexual assault.

The Court of Appeals set aside the conviction and remanded

the case to the RTC so that the correct information may be filed
against Caoili.

The Supreme Court convicted Caoili of lascivious conduct

under Section 5(b) of Republic Act No. 7610 and sentenced him to
reclusion temporal in its medium period.

Republic Act No. 8353 (1995) or the "Anti-Rape Law of 1997"

amended Article 335, the provision on rape in the RPC, reclassifying
rape as a crime against persons and introducing rape by "sexual
assault," as differentiated from rape through "carnal knowledge" or
rape through "sexual intercourse."

Thus, rape under the RPC, as amended, can be committed in

two ways:

(1) Article 266-A paragraph 1 refers to rape through sexual

intercourse, also known as "organ rape" or "penile rape." The
central element in rape through sexual intercourse is carnal
knowledge, which must be proven beyond reasonable doubt.
 (2) Article 266-A paragraph 2 refers to rape by sexual
assault, also called "instrument or object rape," or "gender-free
rape." It must be attended by any of the circumstances enumerated
in sub-paragraphs (a) to (d) of paragraph 1.

Through AAA's testimony, the prosecution was able to prove

that Caoili molested his own daughter when he inserted his finger
into her vagina and thereafter made a push and pull movement
with such finger for 30 minutes, thus, clearly establishing rape by
sexual assault under paragraph 2, Article 266-A of the RPC.

The Supreme Court did not agree with the argument that the
variance doctrine applies in this case, where Caoili can be convicted
of rape by sexual assault because this offense is necessarily
included in the crime of rape through sexual intercourse.

The variance doctrine, which allows the conviction of an

accused for a crime proved which is different from but necessarily
included in the crime charged, is embodied in Section 4, in relation
to Section 5 of Rule 120 of the Rules of Court, which reads:

Sec. 4. Judgment in case of variance between allegation

and proof. — When there is variance between the offense
charged in the complaint or information and that proved,
and the offense as charged is included in or necessarily
includes the offense proved, the accused shall be
convicted of the offense proved which is included in
the offense charged, or of the offense charged which is
included in the offense proved. (Emphasis ours)

Sec. 5. When an offense includes or is included in

another. - An offense charged necessarily includes the
offense proved when some of the essential elements or
ingredients of the former, as alleged in the complaint or
information, constitute the latter. And an offense charged
is necessarily included in the offense proved, when the
essential ingredients of the former constitute or form part
of those constituting the latter.
 By jurisprudence, however, an accused charged in the
Information with rape by sexual intercourse cannot be found guilty
of rape by sexual assault, even though the latter crime was proven
during trial. This is due to the substantial distinctions between
these two modes of rape.

The elements of rape through sexual intercourse are: (1) that

the offender is a man; (2) that the offender had carnal knowledge of
a woman; and (3) that such act is accomplished by using force or
intimidation. Rape by sexual intercourse is a crime committed by a
man against a woman, and the central element is carnal knowledge.
On the other hand, the elements of rape by sexual assault are: (1)
that the offender commits an act of sexual assault; (2) that the act
of sexual assault is committed by inserting his penis into another
person's mouth or anal orifice or by inserting any instrument or
object into the genital or anal orifice of another person; and that the
act of sexual assault is accomplished by using force or intimidation,
among others.

In the first mode (rape by sexual intercourse): (1) the offender

is always a man; (2) the offended party is always a woman; (3) rape
is committed through penile penetration of the vagina; and (4) the
penalty is reclusion perpertua.

In the second mode (rape by sexual assault): (1) the offender

may be a man or a woman; (2) the offended party may be a man or
a woman; (3) rape is committed by inserting the penis into another
person's mouth or anal orifice, or any instrument or object into the
genital or anal orifice of another person; and (4) the penalty
is prision mayor.

The Court en banc's categorical pronouncement in People v.

Abulon, 557 Phil. 428 (2007), thus, finds application:

In view of the material differences between the two modes

of rape, the first mode is not necessarily included in the
second, and vice-versa. Thus, since the charge in the
Information in Criminal Case No. SC-7424 is rape
 through carnal knowledge, appellant cannot be found
guilty of rape by sexual assault although it was proven,
without violating his constitutional right to be informed
of the nature and cause of the accusation against him.

Nevertheless, the prosecution was able to prove lascivious

conduct under Section 5(b) of Republic Act No. 9160.

R.A. No. 7610 finds application when the victims of abuse,

exploitation or discrimination are children or those "persons below
18 years of age or those over but are unable to fully take care of
themselves or protect themselves from abuse, neglect, cruelty,
exploitation or discrimination because of a physical or mental
disability or condition."

It is undisputed that at the time of the commission of the

lascivious act, AAA was fourteen (14) years, one (1) month and ten
(10) days old. This calls for the application of Section 5(b) of R.A.
No. 7610 which provides:

SEC. 5. Child Prostitution and Other Sexual Abuse.

Children, whether male or female, who for money, profit,
or any other consideration or due to the coercion or
influence of any adult, syndicate or group, indulge in
sexual intercourse or lascivious conduct, are deemed to
be children exploited in prostitution and other sexual
abuse.

The penalty of reclusion temporal in its medium

period to reclusion perpetua shall be imposed upon the
following:

xxxx

(b) Those who commit the act of sexual

intercourse or lascivious conduct with a
child exploited in prostitution or subjected to
other sexual abuse: Provided, That when the
victim is under twelve (12) years of age, the
 perpetrators shall be prosecuted under Article
335, paragraph 3, for rape and Article 336 of
Act No. 3815, as amended, the Revised Penal
Code, for rape or lascivious conduct, as the
case may be: Provided, That the penalty for
lascivious conduct when the victim is under
twelve (12) years of age shall be reclusion
temporal in its medium period. (Emphasis
ours.)

The elements of sexual abuse under Section 5(b) of R.A. No.

7610 are as follows:

(1) The accused commits the act of sexual intercourse or

lascivious conduct;

(2) The said act is performed with a child exploited in

prostitution or subjected to other sexual abuse; and

(3) The child, whether male or female, is below 18 years of

age.

The prosecution's evidence has sufficiently established the

elements of lascivious conduct under Section 5(b) of R.A. No. 7610.
The evidence confirms that Caoili committed lascivious acts against
AAA when he kissed her lips, touched and mashed her breast, and
inserted his finger into her vagina and made a push and pull
movement with such finger for 30 minutes.

Caoili had been charged with rape through sexual intercourse

in violation of Article 266-A of the RPC and R.A. No. 7610. Applying
the variance doctrine under Section 4, in relation to Section 5 of
Rule 120 of the Revised Rules of Criminal Procedure, Caoili can be
held guilty of the lesser crime of acts of lasciviousness performed on
a child,  i.e., lascivious conduct under Section 5(b) of R.A. No. 7610,
which was the offense proved, because it is included in rape, the
offense charged.
B. Marital rape

2. People v. Edgar Jumawan

G.R. No. 187495, 21 April 2014

Edgar Jumawan had carnal knowledge with his wife, KKK, in

two consecutive nights through force. He was charged and
convicted of rape through sexual intercourse by the trial court,
which was affirmed by the Court of Appeals.

The Supreme Court, on appeal, affirmed his conviction.

The Supreme Court discussed the evolution of rape laws and

society’s treatment of women.

Under the chattel theory prevalent during the 6th century, a

woman was the property of her father until she marries to become
the property of her husband. If a man abducted an unmarried
woman, he had to pay the owner, and later buy her from the owner;
buying and marrying a wife were synonymous.

In the 17th century, the irrevocable implied consent theory

was conceived that would later on emerge as the marital exemption
rule in rape. 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.

In the 1970s, the rule was challenged by women's movements

in the USA demanding for its abolition for being violative of married
women's right to be equally protected under rape laws. In 1983, the
marital exemption rule was abandoned in New York. By 1993,
marital rape was a crime in all 50 states of the US, with 17 of them,
as well as the District of Columbia, outlawing the act without
exemptions. Meanwhile, the 33 other states granted some
exemptions to a husband from prosecution such as when the wife is
mentally or physically impaired, unconscious, asleep, or legally
unable to consent.
 On the other hand, the Philippine Legislature pursued the
enactment of laws to propagate gender equality. In 1997, R.A. No.
8353 eradicated the stereotype concept of rape in Article 335 of the
RPC. The law reclassified rape as a crime against person and
removed it from the ambit of crimes against chastity. More
particular to the present case, and perhaps the law's most
progressive proviso is the 2nd paragraph of Section 2 thereof
recognizing the reality of marital rape and criminalizing its
perpetration, viz:

Article 266-C. Effect of Pardon. - The subsequent valid

marriage between the offended party shall extinguish the
criminal action or the penalty imposed.

In case it is the legal husband who is the offender, the

subsequent forgiveness by the wife as the offended party
shall extinguish the criminal action or the penalty:
Provided, That the crime shall not be extinguished or the
penalty shall not be abated if the marriage is void ab
initio.

Read together with Section 1 of the law, which unqualifiedly

uses the term "man" in defining rape, it is unmistakable that R.A.
No. 8353 penalizes the crime without regard to the rapist's legal
relationship with his victim.

The crux of Jumawan's plea for acquittal mirrors the

irrevocable implied consent theory. In his appeal brief before the
CA, he posits that the two incidents of sexual intercourse, which
gave rise to the criminal charges for rape, were theoretically
consensual, obligatory even, because he and the victim, KKK, were
a legally married and cohabiting couple. He argues that consent to
copulation is presumed between cohabiting husband and wife
unless the contrary is proved.
Jumawan further claims that this case should be viewed and
treated differently from ordinary rape cases and that the standards
for determining the presence of consent or lack thereof must be
adjusted on the ground that sexual community is a mutual right
and obligation between husband and wife.
 Clearly, it is now acknowledged that rape, as a form of sexual
violence, exists within marriage. A man who penetrates her wife
without her consent or against her will commits sexual violence
upon her, and the Philippines, as a State Party to the CEDAW and
its accompanying Declaration, defines and penalizes the act as rape
under R.A. No. 8353.

A woman is no longer the chattel-antiquated practices labeled

her to be. A husband who has sexual intercourse with his wife is
not merely using a property, he is fulfilling a marital consortium
with a fellow human being with dignity equal to that he accords
himself. He cannot be permitted to violate this dignity by coercing
her to engage in a sexual act without her full and free consent.
Surely, the Philippines cannot renege on its international
commitments and accommodate conservative yet irrational notions
on marital activities that have lost their relevance in a progressive
society.

As above discussed, the definition of rape in Section 1 of R.A.

No. 8353 pertains to: (a) rape, as traditionally known; (b) sexual
assault; and (c) marital rape or that where the victim is the
perpetrator's own spouse. The single definition for all three forms of
the crime shows that the law does not distinguish between rape
committed in wedlock and those committed without a marriage.
Hence, the law affords protection to women raped by their husband
and those raped by any other man alike.

C. Rape through sexual intercourse

3. People v. Butiong
G.R. No. 168932
19 October 2011

Charlie Butiong was charged with rape through sexual

intercourse with AAA, a woman who, although 29 years old, was a
mental retardate with the mentality of a six to seven year old. He
was convicted by the RTC, which conviction was affirmed by the
Court of Appeals.

On appeal to the Supreme Court, Butiong argued that there

was no proof of the date of the rape and there was no spermatozoa
in the victim’s genital. He also argued that sexual intercourse with a
mental retardate was also not the circumstance contemplated as
deprived of reason or unconscious.

The Supreme Court held that the date of the rape need not be
precisely proved considering that date is not an element of rape. Nor
did the absence of the spermatozoa from the genitalia of AAA negate
or disprove the rape. The basic element of rape is carnal knowledge
or sexual intercourse, not ejaculation. Carnal knowledge is defined
as “the act of a man having sexual bodily connections with a
woman”. This explains why the slightest penetration of the female
genitalia consummates the rape. As such, a mere touching of the
external genitalia by the penis capable of consummating the sexual
act already constitutes consummated rape.

One of Butiong’s contentions is that having sexual intercourse

with AAA, a mental retardate, did not amount to a rape, because it
could not be considered as carnal knowledge of a woman deprived
of reason or of a female under twelve years of age as provided under
Article 266-A of the Revised Penal Code, as amended.

The contention cannot be sustained. Rape is essentially a

crime committed through force or intimidation, that is, against the
will of the female. It is also committed without force or intimidation
when carnal knowledge of a female is alleged and shown to be
without her consent. This understanding of the commission of rape
has been prevalent in both the common law and the statutory law
systems. As Corpus Juris Secundum has summed up:

At common law rape could be committed only where

the unlawful carnal knowledge of a female was had
without her consent or against her will; lack of consent
was an essential element of the offense; and there can be
no rape in the common-law sense without the element of
 lack of consent. Under the statutes punishing the
offense, an essential element of the crime of rape is that
the act was committed without the consent of the female,
or, as it is otherwise expressed, against her will. The act
of sexual intercourse is against the female’s will or
without her consent when, for any cause, she is not in a
position to exercise any judgment about the matter.

Carnal knowledge of the female with her consent is not rape,

provided she is above the age of consent or is capable in the eyes of
the law of giving consent. Thus, mere copulation, with the woman
passively acquiescent, does not constitute rape. The female must
not at any time consent; her consent, given at any time prior to
penetration, however reluctantly given, or if accompanied with mere
verbal protests and refusals, prevents the act from being rape,
provided the consent is willing and free of initial coercion. Thus,
where a man takes hold of a woman against her will and she
afterward consents to intercourse before the act is committed, his
act is not rape. However, where the female consents, but then
withdraws her consent before penetration, and the act is
accomplished by force, it is rape; and where a woman offers to allow
a man to have intercourse with her on certain conditions and he
refuses to comply with the conditions, but accomplishes the act
without her consent, he is guilty of rape.

In his commentary on the Revised Penal Code, Justice Aquino

discusses the concept of committing rape against the female’s will
or without her consent, to wit:

In rape committed by means of duress, the victim’s

will is nullified or destroyed. Hence, the necessity of
proving real and constant resistance on the part of the
woman to establish that the act was committed against
her will. On the other hand, in the rape of a woman
deprived of reason or unconscious, the victim has no will.
The absence of will determines the existence of the rape.
Such lack of will may exist not only when the victim is
unconscious or totally deprived of reason, but also when
she is suffering some mental deficiency impairing her
 reason or free will. In that case, it is not necessary that
she should offer real opposition or constant resistance to
the sexual intercourse. Carnal knowledge of a woman so
weak in intellect as to be incapable of legal consent
constitutes rape. Where the offended woman was feeble-
minded, sickly and almost an idiot, sexual intercourse
with her is rape. Her failure to offer resistance to the act
did not mean consent for she was incapable of giving any
rational consent.

The deprivation of reason need not be complete.

Mental abnormality or deficiency is enough. Cohabitation
with a feebleminded, idiotic woman is rape. Sexual
intercourse with an insane woman was considered rape.
But a deafmute is not necessarily deprived of reason.
These circumstances must be proven. Intercourse with a
deafmute is not rape of a woman deprived of reason, in
the absence of proof that she is an imbecile. Viada says
that the rape under par. 2 may be committed when the
offended woman is deprived of reason due to any cause
such as when she is asleep, or due to lethargy produced
by sickness or narcotics administered to her by the
accused. xxx [emphasis supplied]

Carnal knowledge of a mental retardate is rape under

paragraph 1 of Article 266-A of the Revised Penal Code, as amended
by Republic Act No. 8353 because a mental retardate is not capable
of giving her consent to a sexual act. Proof of force or intimidation is
not necessary, it being sufficient for the State to establish, one, the
sexual congress between the accused and the victim, and, two, the
mental retardation of the victim. It should no longer be debatable
that rape of a mental retardate falls under paragraph 1, b), of
Article 266-A, supra, because the provision refers to a rape of a
female "deprived of reason," a phrase that refers to mental
abnormality, deficiency or retardation.

Who, then, is a mental retardate within the context of the

phrase "deprived of reason" used in the Revised Penal Code?
 Mental retardation is a chronic condition present from birth or
early childhood and characterized by impaired intellectual
functioning measured by standardized tests. It manifests itself in
impaired adaptation to the daily demands of the individual’s own
social environment. Commonly, a mental retardate exhibits a slow
rate of maturation, physical and/or psychological, as well as
impaired learning capacity.

The traditional but now obsolescent terms applied to those

degrees of mental retardation were (a) idiot, having an IQ of 0 to 19,
and a maximum intellectual factor in adult life equivalent to that of
the average two-year old child; (b) imbecile by an IQ of 20 to 49 and
a maximum intellectual function in adult life equivalent to that of
the average seven-year old child; moron or feebleminded, having an
IQ of 50 to 69 and a maximum intellectual function in adult life
equivalent to that of the average twelve-year old child. Psychiatrists
and psychologists apply the term "borderline" intelligence to those
with IQ between 70 to 89. In People vs. Palma, we ruled that a
person is guilty of rape when he had sexual intercourse with a
female who was suffering from a "borderline mental deficiency."

Considering the findings of the psychologist t the effect that

AAA had the mental age of a six- to seven-year old, an age equated
with imbecility under the previous classification, her mental age
was even lower than that of a borderline mental deficiency. As such,
Butiong’s carnal knowledge of AAA amounted to rape of a person
deprived of reason.

The ability of the female to given rational consent to carnal

intercourse determines if carnal knowledge of a mental retardate
like AAA is rape. Indeed, the Court has consistently considered
carnal knowledge of a female mental retardate with the mental age
below 12 years of age as rape of a woman deprived of reason. As the
Supreme Courthas held, sexual intercourse with a woman who is
deprived of reason or with a girl who is below twelve years of age is
rape because she is incapable of giving rational consent to the
carnal intercourse.

4. People v. Hernandez
 49 Phil. 980 (1925)

Domingo Hernandez, 70 years old, was charged with raping

Conrada Jocson, his 9-year old granddaughter, by means of force
and intimidation. The evidence shows that he and the offended
party were living in the same house and that taking advantage of
the absence of the other inhabitants of the house, he had
intercourse with the child by force and violence. He admits that he
did so, but maintains that he was intoxicated at the time and did
not know what he was doing.

The trial court found accused guilty of frustrated rape. In

holding that the crime was frustrated, the court seems to have been
of the opinion that there can be no consummated rape without a
complete penetration of the hymen.

This view is not accordance with the weight of authority; in

fact, it is contrary to practically all modern authorities. Any
penetration whether reaching to the hymen or not is sufficient to
constitute the crime. In multiple cases, it has been held that entry
of the labia or lips of the female organ, merely, without rupture of
the hymen or laceration of the vagina, is sufficient to warrant
conviction of the consummated crime of rape.

In the present case the physician who examined the offended

party immediately after the commission of the crime found the labia
and the opening of the vagina inflamed together with an abundance
of semen, though the hymen was intact. It also appears from the
evidence that the defendant lay on top of the child for over fifteen
minutes and continued his efforts of penetration during that period;
the child testifies that the defendant succeeded in a partial
penetration and that she felt intense pain. In these circumstances,
the crime must be regarded as consummated.

As such, the Supreme Court modified the ruling by convicting

the accused with consummated rape.

5. People v. Erinia
50 Phil. 998 (1927)
 Julian Erinia was convicted of consummated rape against a 3-
year old victim. The victim of the crime was a child of 3 years and
11 months old and the evidence is conclusive that the defendant
endeavored to have carnal intercourse with her, but there may be
some doubt whether he succeeded in penetrating the vagina before
being disturbed by the timely intervention of the mother and the
sister of the child. The physician who examined the genital organ of
the child a few hours after the commission of the crime found a
slight inflammation of the exterior parts of the organ, indicating
that an effort had been made to enter the vagina, but in testifying
before the court he expressed doubts as to whether the entry had
been effected. The mother of the child testified that she found its
genital organ covered with a sticky substance, but that cannot be
considered conclusive evidence of penetration.

It has been suggested that the child was of such tender age
that penetration was impossible; that the crime of rape
consequently was impossible of consummation; and that, therefore,
the offense committed should be treated only as abusos
deshonestos. We do not think so. It is probably true that a complete
penetration was impossible, but such penetration is not essential to
the commission of the crime; it is sufficient if there is a penetration
of the labia.

However, there being no conclusive evidence of penetration of

the genital organ of the offended party, the defendant is entitled to
the benefit of the doubt and can only be found guilty of frustrated
rape, but in view of the fact that he was living in the house of the
parents of the child as their guest, the aggravating circumstance of
abuse of confidence existed and the penalty must therefore be
imposed in its maximum degree.

The judgment appealed from is modified and Erinia was found

guilty of the crime of frustrated rape.

6. People v. Orita
84 SCRA 105 (1990)
 Ceilito Orita was charged of raping Cristina Abayan, a
freshman student in Borongan, Eastern Samar, specifically inside
her dormitory. He went inside her room and forced her to have
sexual intercourse with him with the use of a knife. Because she
was constantly moving, there was slight penetration only and no
complete penetration.

He was convicted by the trial court only of frustrated rape.

On appeal, the Supreme Court clarified that carnal knowledge

is defined as the act of a man in having sexual bodily connections
with a woman.

Here is no debate that the attempted and consummated stages

apply to the crime of rape. However, the Supreme Court considered
the issue of whether or not the frustrated stage applies to rape.

Clearly, in the crime of rape, from the moment the offender has
carnal knowledge of his victim he actually attains his purpose and,
from that moment also all the essential elements of the offense have
been accomplished.  Nothing more is left to be done by the offender,
because he has performed the last act necessary to produce the
crime.  Thus, the felony is consummated. In a long line of cases, the
Supreme Court had set the uniform rule that for the consummation
of rape, perfect penetration is not essential. Any penetration of the
female organ by the male organ is sufficient. Entry of the labia or
lips of the female organ, without rupture of the hymen or laceration
of the vagina is sufficient to warrant conviction. Necessarily, rape is
attempted if there is no penetration of the female organ because not
all acts of execution was performed. The offender merely
commenced the commission of a felony directly by overt acts. Taking
into account the nature, elements and manner of execution of the
crime of rape and jurisprudence on the matter, it is hardly
conceivable how the frustrated stage in rape can ever be committed.

The Supreme Court considered its decision in People v. Erinia

as a “stray decision”.
 The Supreme Court thus modified the decision and convicted
Orita of consummated rape.

D. Rape by sexual assault

7. People v. Chingh
G.R. No. 178323, 16 March 2011

Armando Chingh was charged with rape through sexual

assault and rape through sexual intercourse for inserting his
fingers in the vagina of a 10-year-old child, VVV, and thereafter
inserting his penis by means of force, violation and intimidation. It
happened while VVV proceeded to a store to buy food, Chingh drag
her to a vacant lot where he mashed her breast and inserted his
right hand index finger into her private part. Despite VVV’s pleas for
him to stop, Armando unzipped his pants, lifted VVV and rammed
his phallus inside her vagina, causing her to feel excruciating pain.

The RTC convicted Chingh of statutory rape.

The Court of Appeals convicted Chingh for two counts of rape:

(1) by inserting his finger in the victim’s vagina, which is classified
as Rape Through Sexual Assault under paragraph 2, Article 266-A
of the Revised Penal Code, as amended; and (2) for inserting his
penis in the private part of his victim, which is Statutory Rape, and
considering that Armando failed to object thereto through a motion
to quash before entering his plea, Armando could be convicted of as
many offenses as are charged and proved.

The Court of Appeals correctly found Armando guilty of the

crime of Rape Through Sexual Assault under paragraph 2, Article
266-A, of the Revised Penal Code, as amended by Republic Act No.
(R.A.) 8353, or The Anti-Rape Law of 1997. From the Information, it
is clear that Armando was being charged with two offenses, Rape
under paragraph 1 (d), Article 266-A of the Revised Penal Code, and
rape as an act of sexual assault under paragraph 2, Article 266-A.
Armando was charged with having carnal knowledge of VVV, who
was under twelve years of age at the time, under paragraph 1 (d) of
Article 266-A, and he was also charged with committing an act of
sexual assault by inserting his finger into the genital of VVV under
the second paragraph of Article 266-A. Indeed, two instances of
rape were proven at the trial. First, it was established that Armando
inserted his penis into the private part of his victim, VVV. Second,
through the testimony of VVV, it was proven that Armando also
inserted his finger in VVV’s private part.

The Information has sufficiently informed accused-appellant

that he is being charged with two counts of rape. Although two
offenses were charged, which is a violation of Section 13, Rule 110
of the Revised Rules of Criminal Procedure, which states that "[a]
complaint or information must charge only one offense, except
when the law prescribes a single punishment for various offenses."
Nonetheless, Section 3, Rule 120 of the Revised Rules of Criminal
Procedure also states that "[w]hen two or more offenses are charged
in a single complaint or information but the accused fails to object
to it before trial, the court may convict the appellant of as many as
are charged and proved, and impose on him the penalty for each
offense, setting out separately the findings of fact and law in each
offense." Consequently, since Armando failed to file a motion to
quash the Information, he can be convicted with two counts of rape.

As to the proper penalty, the Supreme Court affirmed the

Court of Appeal’s imposition of Reclusion Perpetua for rape under
paragraph 1 (d), Article 266-A. However, it modified the penalty for
Rape Through Sexual Assault.

It is undisputed that at the time of the commission of the

sexual abuse, VVV was ten (10) years old. This calls for the
application of R.A. No. 7610, or "The Special Protection of Children
Against Child Abuse, Exploitation and Discrimination Act," which
defines sexual abuse of children and prescribes the penalty therefor
in Section 5 (b), Article III, to wit:

SEC. 5. Child Prostitution and Other Sexual Abuse. —

Children, whether male or female, who for money, profit,
or any other consideration or due to the coercion or
 influence of any adult, syndicate or group, indulge in
sexual intercourse or lascivious conduct, are deemed to
be children exploited in prostitution and other sexual
abuse.
The penalty of reclusion temporal in its medium period
to reclusion perpetua shall be imposed upon the
following:
xxxx
(b) Those who commit the act of sexual intercourse or
lascivious conduct with a child exploited in prostitution
or subjected to other sexual abuse: Provided, That when
the victim is under twelve (12) years of age, the
perpetrators shall be prosecuted under Article 335,
paragraph 3, for rape and Article 336 of Act No. 3815, as
amended, the Revised Penal Code, for rape or lascivious
conduct, as the case may be: Provided, That the penalty
for lascivious conduct when the victim is under
twelve (12) years of age shall be reclusion
temporal in its medium period.

Paragraph (b) punishes sexual intercourse or lascivious

conduct not only with a child exploited in prostitution, but also with
a child subjected to other sexual abuses. It covers not only a
situation where a child is abused for profit, but also where one —
through coercion, intimidation or influence — engages in sexual
intercourse or lascivious conduct with a child.

Corollarilly, Section 2 (h) of the rules and regulations of R.A.

No. 7610 defines "Lascivious conduct" as:

[T]he intentional touching, either directly or through

clothing, of the genitalia, anus, groin, breast, inner thigh,
or buttocks, or the introduction of any object into the
genitalia, anus or mouth of any person, whether of the
same or opposite sex, with an intent to abuse, humiliate,
harass, degrade, or arouse or gratify the sexual desire of
any person, bestiality, masturbation, lascivious
exhibition of the genitals or pubic area of a person.
 In this case, the offended party was ten years old at the time of
the commission of the offense. Pursuant to the above-quoted
provision of law, Armando was aptly prosecuted under paragraph 2,
Article 266-A of the Revised Penal Code, as amended by R.A. No.
8353, for Rape Through Sexual Assault. However, instead of
applying the penalty prescribed therein, which is prision mayor,
considering that VVV was below 12 years of age, and considering
further that Armando’s act of inserting his finger in VVV’s private
part undeniably amounted to lascivious conduct, the appropriate
imposable penalty should be that provided in Section 5 (b), Article
III of R.A. No. 7610, which is reclusion temporal in its medium
period.

8. Ricalde v. People
G.R. No. 211002, 21 January 2015

Richard Ricalde was charged and convicted of rape through

sexual assault against XXX, a 10-year-old boy, by inserting his
penis into the anus of the victim against his will and consent. XXX
invited Ricalde into their home but, when he was allowed to sleep in
the sofa with the boy sleeping in the living room floor, he sexually
assaulted the boy by inserting his penis in the victim’s anus.

The RTC convicted Ricalde and the Court of Appeals affirmed

his conviction.

The Supreme Court affirmed his conviction. The Anti-Rape

Law of 1997 classified rape as a crime against persons and
amended the Revised Penal Code to include Article 266-A on rape
through sexual assault. Rape under the second paragraph of Article
266-A is also known as "instrument or object rape," "gender-free
rape," or "homosexual rape." The gravamen of rape through sexual
assault is "the insertion of the penis into another person’s mouth or
anal orifice, or any instrument or object, into another person’s
genital or anal orifice."

The slightest penetration into one’s sexual organ distinguishes

an act of lasciviousness from the crime of rape. People v. Bonaagua,
discussed this distinction:
 It must be emphasized, however, that like in the crime of
rape whereby the slightest penetration of the male organ
or even its slightest contact with the outer lip or the labia
majora of the vagina already consummates the crime, in
like manner, if the tongue, in an act of cunnilingus,
touches the outer lip of the vagina, the act should also be
considered as already consummating the crime of rape
through sexual assault, not the crime of acts of
lasciviousness. Notwithstanding, in the present case,
such logical interpretation could not be applied. It must
be pointed out that the victim testified that Ireno only
touched her private part and licked it, but did not insert
his finger in her vagina. This testimony of the victim,
however, is open to various interpretation, since it cannot
be identified what specific part of the vagina was defiled
by Ireno. Thus, in conformity with the principle that the
guilt of an accused must be proven beyond reasonable
doubt, the statement cannot be the basis for convicting
Ireno with the crime of rape through sexual assault.

People v. Bonaagua considers a woman’s private organ since

most if not all existing jurisprudence on rape involves a woman
victim. Nevertheless, this interpretation can apply by analogy when
the victim is a man in that the slightest penetration to the victim’s
anal orifice consummates the crime of rape through sexual assault.
The gravamen of the crime is the violation of the victim’s dignity.
The degree of penetration is not important. Rape is an "assault on
human dignity."

The Supreme Court nevertheless imposed the penalty under

Section 5(b) of Rep. Act No. 7610. The imposable penalty under
Republic Act No. 7610, Section 5(b) "for lascivious conduct when
the victim is under twelve (12) years of age shall be reclusion
temporal in its medium period." This penalty is higher than the
imposable penalty of prision correccional for acts of lasciviousness
under Article 336 of the Revised Penal Code.
E. Evidentiary rules

9. People v. Severino Gondaway Dulay

G.R. Nos. 144344-68, 23 July 2002

Under Republic Act No. 8353, the Anti-Rape Law of 1997, is

resistance by the victim required to prove lack of consent to the
rape? If yes, how do we prove this resistance?

Severino Gondaway Dulay was charged with twenty five (25)

counts of rape of his daughter, by having sexual intercourse with
her with force, threats or intimidation.

The traditional concept of rape is that carnal knowledge is

gained against or without the consent of the victim. If the rape is
made by force, violence or intimidation, it is self-evident that it was
made against or without the victim's consent. To prove lack of
consent, the law requires resistance by the victim. R.A. No. 8353
specifies the kind of resistance and its proof, viz:

"Article 266-D. Presumptions  - Any physical overt act

manifesting resistance against the act of rape in any
degree from the offended party, or where the offended party
is so situated as to render her/him incapable of giving valid
consent, may be accepted as evidence in the prosecution
of the acts punished under Article 266-A."

Any physical overt act manifesting resistance against the rape

in any degree from the victim is admissible as evidence of lack of
consent. Tenacious resistance, however, is not required. Neither is a
determined and persistent physical struggle on the part of the
victim necessary.

In the cases at bar, the victim testified that her father

molested her against her will. In all the twenty-five (25) incidents,
there is no doubt that accused-appellant forced his daughter to
submit to his carnal desires. His daughter bore everything silently,
terrorized by the thought that if she struggled tenaciously, her
father would get violent. She also wanted to save her then pregnant
mother from her father's wrath. From experience, she knew that
whenever accused-appellant got angry, he would kick everyone in
the house, bring out his samurai sword and threaten to kill all of
them. It was only four months later, after Lilia gave birth, that
Juvelyn gathered the guts to refuse her father's immoral advances.
True enough, accused-appellant beat her and her mother, who was
then even carrying the newborn baby in her arms.