Digest by Clarisse P. Marquez
Graphics by Elijah Christiane M. Fajardo
FACTS
This appeal aroused from two Informations charging the accused-appellant Efren Agao with two counts of statutory rape under Article-266 A par. 1 and Art. 266-B of the Revised Penal Code, as amended by Republic Act No. 8353 in conjunction with R.A. 7610.
AAA, who was then 10 years old, testified that appellant first raped her in 2010. AAA woke up to find appellant touching her breasts and vagina, and trying to insert his penis into her vagina. Appellant managed to introduce the same into AAA’s outer fold or labia majora, but he was allegedly unable to fully penetrate AAA’s vagina because she kept fighting back.
Appellant continued to molest AAA, including in 2012, when appellant raped AAA while she was sleeping. AAA woke up to find appellant touching her breast and trying to insert his penis into her vagina. In both incidents, appellant was not able to fully penetrate AAA’s vagina because she put up a fight.
ISSUE
Whether full penile penetration is required for the crime of rape to be consummated.
RULING
No, full penile penetration is not required for the crime of rape to be consummated.
The Court reiterates that the 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, the 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 fully achieved, consummates the crime of rape.
Furthermore, jurisprudence considers as consummated rape when it describes a penis touching the vagina as the penis penetrating the cleft of the labia majora, however minimum or slight. Mere grazing by the penis of the fleshy portion, not the vulval cleft of the labia majora, will constitute attempted rape and not consummated rape.
Stated differently, a “mere touch” of the penis on the labia majora legally contemplates not mere surface touch or skin contact, but the slightest penetration of the vulva or pudenda cleft, however minimum in degree.
For as long as the prosecutorial evidence is able to establish that the penis of the accused penetrated the vulval cleft or the cleft of the labia majora (i.e., the cleft of the fleshy outer lip of the victim’s vagina), however slight the introduction may be, the commission of rape already crossed the threshold of the attempted stage and into its consummation.
In the converse, when there is no touching by the penis of the vulval cleft of the victim’s genitalia in a case of rape through penile penetration, there can be no finding of consummated rape but only attempted rape or acts of lasciviousness, as the case may be.
The appeal is dismissed.
THE BARRISTER 