Dear PAO,
My son has a liberated girlfriend. They often go out, party and drink to their heart’s content. Yesterday, we got a subpoena. She is accusing him of rape. I freely admit that my son has a penchant for feeling up girls when he is tipsy, but he assures me that only the tip of his finger touched her girlfriend’s privates when she was almost passed out. There was no penetration at all. Please tell me that my dear son did not commit any rape? He is a good kid.
Xahrah-Lee
Dear Xahrah-Lee,
Unfortunately, you are incorrect. Given that the tip of your son’s finger touched the complainant’s reproductive organ, even without penetration, it may already be considered as rape.
First, the crime of rape is committed not only by having carnal knowledge or sexual congress, but also by inserting a male private organ into another person’s mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person. The latter act is called sexual assault, which is considered a form of rape. (Sec. 266-A, Revised Penal Code)
Corollary thereto, the Supreme Court en banc, speaking through Associate Justice Alfredo Benjamin Caguioa, in the case of People of the Philippines vs. Agao (GR 248049, Oct. 4, 2022), stated that mere touching of the labia may already constitute rape:
“x x x [T]he Court now reiterates, even as it clarifies, that rape of a female victim by 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 xxx
“[T]he 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. xxx
“Stated differently, the extension of the instant anatomical threshold applies to rape by sexual assault such that a finding that the accused has penetrated the vulva cleft of the victim through the use of any instrument or object warrants a factual finding of consummated rape by sexual assault.”
As far as the situation of your son is concerned, his touching the private part of his girlfriend, who was almost unconscious and could not give consent, may constitute the crime of rape through sexual assault if the abovementioned conditions are satisfied. In any case, even if your son’s action did not amount to rape through sexual assault, he may still be prosecuted for other crimes, such as acts of lasciviousness, depending on the circumstances surrounding the incident.
We hope that we were able to answer your queries. This advice was 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.
Thank you for your continued trust and support.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.
