2 ways rape is committed

Under Article 266-A of the Revised Penal Code (RPC), there are two ways by which the crime of rape may be committed: by sexual intercourse or by sexual assault.[1]

Rape by sexual intercourse is defined under Article 266-A(l) where it is committed by a man who shall have carnal knowledge with a woman under a certain set of circumstances enumerated in the provision. When a person is found guilty of rape by sexual intercourse, the perpetrator is ordinarily punished by reclusion perpetua.[2]

Rape by sexual assault, on the other hand, is committed by any person who, under the same set of circumstances in Article 266-A(l), inserts his penis into another person's mouth or anal orifice, or any instrument or object into the genital or anal orifice of another person. Article 266-A(2) provides:

ART. 266-A. Rape, When and How Committed. - Rape is committed -

x x x x

2. By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another person's mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person. (Emphasis supplied)

Unlike rape by sexual intercourse, Article 266-B prescribes prision mayor as the penalty if found guilty of rape by sexual assault or reclusion temporal if there are qualifying circumstances present.

In both cases either in rape by sexual intercourse or rape by sexual assault, only the fact of penetration need be established under either. It must be stated though that under rape by sexual intercourse, there must be proof that his penis touched the labia of the victim or slid into her female organ, and not merely stroked the external surface thereof, to ensure his conviction.[3]

In Flordeliz v. People,[4] the Supreme Court affirmed the conviction of the accused for the crime of rape by sexual assault committed by a father who inserted his finger in his minor daughter's vagina. There, it was noted that it is "not uncommon [xxx] for the accused to claim that the case is a mere fabrication, and that the victim was moved by familial discord and influence, hostility, or revenge."[5] We said:

xxx when the offended parties are young and immature girls, as in this case, courts are inclined to lend credence to their version of what transpired, considering not only their relative vulnerability, but also the shame and embarrassment to which they would be exposed if the matter about which they testified were not true.[6]

In People v. Salvador (G.R. No. 207815, June 22, 2015), what was established by the testimony of BBB was that appellant inserted his finger in her vagina. By such act of inserting his finger in BBB's organ, the crime of rape by sexual assault has been consummated. The accused, therefore, should be found guilty of rape as defined in Article 266-A, paragraph 2 of the RPC. Thus, the fact that there were no injuries found in the medical exam deserves scant attention. The finding of any injury as yielded by the physical exam is not a requirement in rape cases.[7]

[1] People v. Olaybar, 459 Phil. 114, 116 (2003).

[2] See REVISED PENAL CODE, Article 266-B.

[3] People v. Soria, G.R. No. 179031, November 14, 2012, 685 SCRA 483, 499.

[4] 628 Phil. 124 (2010).

[5] Id. at 135.

[6] Id.

[7] See People v. Castillo, G.R. No. 193666, February 19, 2014, 717 SCRA 113, 125-126.

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