Jurisprudence on gender-free or homosexual rape

Paragraph 1 under Section 2 of R.A. No. 8353, which is now Paragraph 1 of the new Article 266-A of the Revised Penal Code, covers rape through sexual intercourse while paragraph 2 refers to rape by sexual assault. Rape through sexual intercourse is also denominated as "organ rape" or "penile rape." On the other hand, rape by sexual assault is otherwise called "instrument or object rape," also "gender-free rape," or the narrower "homosexual rape." (G.R. No. 174473)

Rape under the second paragraph of Article 266-A is also known as "instrument or object rape," [1] "gender-free rape," [2] or "homosexual rape." [3] 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." [4]

In People v. Silvano (368 Phil. 676), the Supreme Court recognized that the father’s insertion of his tongue and finger into his daughter’s vaginal orifice would have subjected him to liability for "instrument or object rape" had the new law been in effect already at the time he committed the acts. Similarly, in People v. Miranda (G.R. No. 169078), the Court observed that appellant’s insertion of his fingers into the complainant’s organ would have constituted rape by sexual assault had it been committed when the new law was already in effect.

The case of Abulon distinguishes the two modes (sexual intercourse and sexual assault) of committing rape as follows:

[1] In the first mode [rape by sexual intercourse], the offender is always a man, while in the second [rape by sexual assault], the offender may be a man or a woman;
[2] In the first mode, the offended party is always a woman, while in the second, the offended party may be a man or a woman;
[3] In the first mode, rape is committed through penile penetration of the vagina, while the second 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 for rape under the first mode is higher than that under the second.

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[1] People v. Abulon, 557 Phil. 428, 454 (2007) [Per J. Tinga, En Banc], citing People v. Silvano, 368 Phil. 676, 696 (1999) [Per Curiam, En Banc].

[2] People v. Abulon, 557 Phil. 428, 454 (2007) [Per J. Tinga, En Banc], citing Deliberations of the Senate on Senate Bill No. 950, Special Law on Rape, August 6, 1996, pp. 12–15; Deliberations of the House of Representatives, Committee on Revision of Laws and Committee on Women on House Bill No. 6265 entitled "An Act to Amend Article 335 of the Revised Penal Code, as amended, and Defining and Penalizing the Crime of Sexual Assault," August 27, 1996, pp. 44–50; See also People v. Garcia, G.R. No. 206095, November 25, 2013, 710 SCRA 571, 580 [Per J. Mendoza, Third Division].

[3] People v. Abulon, 557 Phil. 428, 454 (2007) [Per J. Tinga, En Banc], citing Deliberations of the Senate on Senate Bill No. 950, Special Law on Rape, August 6, 1996, pp. 12–15.

[4] Pielago v. People, G.R. No. 202020, March 13, 2013, 693 SCRA 476, 488 [Per J. Reyes, First Division].

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