05/05/2017
The crime of R**e
Statutory Basis
The offense of r**e was formerly found under Art 335 of the Revised Penal Code. With the passage of Republic Act No. 8353 (Anti-R**e Law of 1997), the offense of r**e is now defined and punished under Article 266-A, 266-B, 266-C and 266-D.
Two Modes of Committing R**e
R**e may be committed either by s*xual in*******se or by s*xual assault.
R**e by s*xual in*******se is committed by a man against a woman under the circumstances found in the first paragraph of Art 266-A, Revised Penal Code:
Article 266-A. R**e: When And How Committed. - R**e is committed:
1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:
a) Through force, threat, or intimidation;
b) When the offended party is deprived of reason or otherwise unconscious;
c) By means of fraudulent machination or grave abuse of authority; and
d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present.
[see People vs. Buban, G.R. No. 166895, January 24, 2007]
R**e by s*xual assault is committed under the second paragraph of Art 266-A, Revised Penal Code:
Article 266-A. R**e: When And How Committed. - R**e is committed:
###
2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of s*xual assault by inserting his p***s into another person's mouth or a**l or***ce, or any instrument or object, into the ge***al or a**l or***ce of another person.
Unlike the first mode, an offender under r**e by s*xual assault may be a woman as it may be committed by 'any person'. [see Ordinario vs People, G.R. No. 155415, May 20, 2004]
Inserting a finger inside the ge***al of a woman is considered r**e through s*xual assault within the context of the second paragraph of Art 266-A. [People vs Soriano, G.R. Nos. 142779-95, August 29, 2002]
[see also People vs Olaybar, G.R. Nos. 150630-31, October 1, 2003; People vs Abello y Fortada, G.R. No. 151952, March 25, 2009]
Crime against persons
R**e was formerly classified as a crime against chastitiy. Republic Act No. 8353 , or the Anti-R**e Law of 1997, has reclassified r**e as a crime against persons. The effect is that r**e may be prosecuted even without a complaint filed by the offended party. [see People vs. Mahinay, G.R. No. 122485, February 1, 1999]
Consummated R**e (Carnal Knowledge)
Carnal knowledge of the victim by the accused must be proven beyond reasonable doubt since it is the central element in the crime of r**e. Carnal knowledge is defined as the act of a man having s*xual in*******se or s*xual bodily connections with a woman. [People vs. Pareja y Velasco, G.R. No. 188979, September 5, 2012]
For carnal knowledge to occur, and hence for r**e to be considered consummated, there must be pe**le pe*******on of the l***a majora or pudendum of the female organ, no matter how slight. Without any showing of such pe*******on, there can be no consummated r**e; at most, it can only be attempted r**e or acts of lasciviousness.” [People vs. Pareja y Velasco, G.R. No. 188979, September 5, 2012]
In People vs.Campuhan [G.R. No. 129433, March 30, 2000], the court laid down the parameters of ge***al contact in r**e cases:
"Thus, touching when applied to r**e cases does not simply mean mere epidermal contact, stroking or grazing of organs, a slight brush or a scr**e of the p***s on the external layer of the victim's va**na, or the mons p***s, as in this case. There must be sufficient and convincing proof that the p***s indeed touched the l***as or slid into the female organ, and not merely stroked the external surface thereof, for an accused to be convicted of consummated r**e ### the l***a majora must be entered for r**e to be consummated, and not merely for the p***s to stroke the surface of the female organ. Thus, a grazing of the surface of the female organ or touching the mons p***s of the pudendum is not sufficient to constitute consummated r**e. Absent any showing of the slightest pe*******on of the female organ, i.e., touching of either l***a of the pudendum by the p***s, there can be no consummated r**e; at most, it can only be attempted r**e, if not acts of lasciviousness."
Full and complete pe*******on is not required for r**e to be consummated. [People vs Jalosjos, G.R. Nos. 132875-76, November 16, 2001]
For r**e to be committed, rupture of the h***n or laceration of the va**na are not essential. Entry to the least extent of the l***a or the lips of the female organ is sufficient, the victim remaining virgin does not negate r**e. [People vs Dalisay, G.R. No. 133926, August 6, 2003; see also People vs. Basquez, G.R. No. 144035, September 27, 2001]
No Offense of Frustrated R**e
The Court in People v. Orita [G.R. No. 88724, April 3, 1990] finally did away with the offense of frustrated r**e and allowed only attempted r**e and consummated r**e to remain in our statute books :
Clearly, in the crime of r**e, 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. ### We have set the uniform rule that for the consummation of r**e, perfect pe*******on is not essential. Any pe*******on of the female organ by the male organ is sufficient. Entry of the l***a or lips of the female organ, without rupture of the h***n or laceration of the va**na is sufficient to warrant conviction. Necessarily, r**e is attempted if there is no pe*******on of the female organ ### because not all acts of ex*****on was performed. The offender merely commenced the commission of a felony directly by overt acts. Taking into account the nature, elements and manner of ex*****on of the crime of r**e and jurisprudence on the matter, it is hardly conceivable how the frustrated stage in r**e can ever be committed.
In the Orita case, the court further ruled that the decision in People v. Eriña [G.R. No. 26298, January 30, 1927] (where the court found the offender guilty of frustrated r**e for lack of evidence of pe*******on of the ge***al organ of the offended party) is considered a "stray" decision inasmuch as it has not been reiterated in subsequent decisions. Likewise, the particular provision under (the old) Article 335 of the Revised Penal Code on frustrated r**e is a dead provision.
Use of Force or Intimidation
The force employed in r**e cases may be physical and actual or psychological and addressed to the mind of the complainant. Both have the same effect on the r**e victim. In the latter case, however, we have consistently held that the force or intimidation must be of such character as to create real apprehension of dangerous consequences or serious bodily harm that would overpower the mind of the victim and prevent her from offering resistance. The test is whether the threat or intimidation produces a reasonable fear in the mind of the victim that if she resists or does not yield to the desires of the accused, the threat would be carried out. It is not necessary, therefore, that the force or intimidation employed be so great or be of such character that it can not be resisted. It is only necessary that the force or intimidation be sufficient to consummate the purpose of the accused. Hence, the victim need not resist unto death or sustain physical injuries in the hands of the ra**st.
Intimidation and coercion must be viewed in the light of the victim's perception and judgment at the time of the r**e and not by any hard-and-fast rule. It depends on several factors like difference in age, size, and strength of the parties, and their relationship. [see People vs Oga, G.R. No. 152302, June 8, 2004]
Lack of consent - Persistent or tenacious resistance is not required
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 r**e 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 r**e 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. [People vs Gondaway Dulay, G.R. Nos. 144344-68, July 23, 2002]
Moral character of victim is immaterial
It is a well-established rule that in the prosecution and conviction of an accused for r**e, the victim's moral character is immaterial, there being absolutely no nexus between it and the odious deed committed. Even a pr******te or a woman of loose morals can be the victim of r**e, for she can still refuse a man's lustful advances.[People vs. Agsaoay, Jr, G.R. Nos. 132125-26, June 3, 2004]
Source:mylegalwhiz.com
