RAPE ART 266-A RAPE

The Anti-Rape Law of 1997 (RA 8353) now classified the crime of rape as Crime Against Persons incorporated into Title 8 of the RPC to be known as Chapter 3 ELEMENTS: Rape is committed 1. By a man who 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 d. when the offended party is under 12 years of age or is demented, even though none of the circumstances mentioned above be present By any person who, under any of the circumstances mentioned in par 1 hereof, shall commit an act of sexual assault by inserting
2.

a. his penis into another persons mouth or anal orifice, or b. any instrument or object, into the genital or anal orifice of another person Rape committed under par 1 is punishable by: 1. reclusion perpetua 2. reclusion perpetua to DEATH when a. victim became insane by reason or on the occasion of rape b. the rape is attempted and a homicide is committed by reason or on the occasion thereof 3. DEATH when a. homicide is committed b. victim under 18 years and offender is: i. parent ii. ascendant iii. step-parent iv. guardian v. relative by consanguinity or affinity with the 3rd civil degree or vi. common law spouse of parent of victim
c.

under the custody of the police or military authorities or any law enforcement or penal institution

d.

committed in full view of the spouse, parent or any of the children or other relatives within the 3rd degree of consanguinity victim is a religious engaged in legitimate religious vocation or calling and is personally known to be such by the offender before or at the time of the commission of the crime a child below 7 years old

e.

f.
g.

offender knows he is afflicted with HIV or AIDS or any other sexually transmissible disease and the virus is transmitted to the victim h. offender; member of the AFP, or para-military units thereof, or the PNP, or any law enforcement agency or penal institution, when the offender took advantage of his position to facilitate the commission of the crime
i.

victim suffered permanent physical mutilation or disability the offender knew of the pregnancy of the offended party at the time of the commission of the crime; and

j.

k. when the offender knew of the mental disability, emotional disorder and/or physical handicap or the offended party at the time of the commission of the crime Rape committed under par 2 is punishable by: 1. prision mayor 2. prision mayor to reclusion temporal a. use of deadly weapon or b. by two or more persons
3. 4. 5. 6.

reclusion temporal when the victim has become insane reclusion temporal to reclusion pepetua rape is attempted and homicide is committed reclusion perpetua homicide is committed by reason or on occasion of rape reclusion temporal committed with any of the 10 aggravating circumstances mentioned above

Notes: DIVIDING AGE IN RAPE: a. less than 7 yrs old, mandatory death b. less than 12 yrs old, statutory rape c. less than 18 yrs old and there is relationship (e.g. parent etc); mandatory death

* Because of this amendment which reclassified rape as a crime against persons, an impossible crime may now be committed in case of rape; that is, if there is inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means.

* The case of People vs. Orita (G.R. No. 88724, April 3, 1990), laid a new doctrine in Philippine penal law insofar as the crime of rape is concerned, as it finally did away with frustrated rape and allowed only attempted rape and consummated rape to remain in our statute books.

* The act of touching should be understood as inherently part of the entry of the penis into the labia of the female organ and not the mere touching alone of the mons pubis or the pudendum. Jurisprudence dictates that the labia majora (or he outer lips of the female organ) must be entered for rape to be consummated, and not merely for the penis to stroke the surface of the female organ. Thus, grazing of the surface of the female organ or touching the mons pubis of the pudendum is not sufficient to constitute rape. ( Pp vs. Campuhan)
Classification of rape !) Traditional concept under Article 335 carnal knowledge with a woman against her will. The offended party is always a woman and the offender is always a man.

2) Sexual assault - committed with an instrument or an object or use of the penis with penetration of mouth or anal orifice. The offended party or the offender can either be man or woman, that is, if a woman or a man uses an instrument on anal orifice of male, she or he can be liable for rape. Since rape is not a private crime anymore, it can be prosecuted even if the woman does not file a complaint.

If carnal knowledge was made possible because of fraudulent machinations and grave abuse of authority, the crime is rape. This absorbs the crime of qualified and simple seduction when no force or violence was used, but the offender abused his authority to rape the victim.

Under Article 266-C, the offended woman may pardon the offender through a subsequent valid marriage, the effect of which would be the extinction of the offenders liability. Similarly, the legal husband may be pardoned by forgiveness of the wife provided that the marriage is not void ab initio. Obviously, under the new law, the husband may be liable for rape if his wife does not want to have sex with him. It is enough that there is indication of any amount of resistance as to make it rape.

Incestuous rape was coined in Supreme Court decisions. It refers to rape committed by an ascendant of the offended woman. In such cases, the force and intimidation need not be of such nature as would be required in rape cases had the accused been a stranger. Conversely, the Supreme Court expected that if the offender is not known to the woman, it is necessary that there be evidence of affirmative resistance put up by the offended woman. Mere no, no is not enough if the offender is a stranger, although if the rape is incestuous, this is enough.

The new rape law also requires that there be a physical overt act manifesting resistance, if the offended party was in a situation where he or she is incapable of giving valid consent, this is admissible in evidence to show that carnal knowledge was against his or her will.

When the victim is below 12 years old, mere sexual intercourse with her is already rape. Even if it was she who wanted the sexual intercourse, the crime will be rape. This is referred to as statutory rape.

If the victim however is exactly twelve (12) years old (she was raped on her birthday) or more, and there is consent, there is no rape. However, Republic Act No. 7610, Sec. 5 (b) provides that: Even if the victim is over twelve (12) year old and the carnal act was with her consent as long as she falls under the classification of a child exploited in prostitution and other sexual abuse, the crime is rape.

In other cases, there must be force, intimidation, or violence proven to have been exerted to bring about carnal knowledge or the woman must have been deprived of reason or otherwise unconscious.

It is not necessary that the force or intimidation employed be so great or of such character as could not be resisted it is only necessary that it be sufficient to consummate the purpose which the accused had in mind. (People vs. Canada, 253 SCRA 277).

Carnal knowledge with a woman who is asleep constitutes Rape since she was either deprived of reason or otherwise unconscious at that time. (People vs. Caballero, 61 Phil. 900).

Sexual intercourse with an insane, deranged or mentally deficient, feeble-minded or idiotic woman is Rape pure and simple. The deprivation of reason contemplated by law need not be complete; mental abnormality or deficiency is sufficient.

Where the victim is over 12 years old, it must be shown that the carnal knowledge with her was obtained against her will. It is necessary that there be evidence of some resistance put up by the offended woman. It is not, however, necessary that the offended party should exert all her efforts to prevent the carnal intercourse. It is enough that from her resistance, it would appear that the carnal intercourse is against her will.

Mere initial resistance, which does not indicate refusal on the part of the offended party to the sexual intercourse, will not be enough to bring about the crime of rape. Note that it has been held that in the crime of rape, conviction does not require medico-legal finding of any penetration on the part of the woman. A medico-legal certificate is not necessary or indispensable to convict the accused of the crime of rape.

It has also been held that although the offended woman who is the victim of the rape failed to adduce evidence regarding the damages to her by reason of the rape, the court may take judicial notice that there is such damage in crimes against chastity. The standard amount given now is P 50,000.00, with or without evidence of any moral damage. An accused may be convicted of rape on the sole testimony of the offended woman. It does not require that testimony be corroborated before a conviction may stand. This is particularly true if the commission of the rape is such that the narration of the offended woman would lead to no other conclusion except that the rape was committed.

Illustration: Daughter accuses her own father of having raped her.

Allegation of several accused that the woman consented to their sexual intercourse with her is a proposition which is revolting to reason that a woman would allow more than one man to have sexual intercourse with her in the presence of the others.

It has also been ruled that rape can be committed in a standing position because complete penetration is not necessary. The slightest penetration contact with the labia will consummate the rape.

On the other hand, as long as there is an intent to effect sexual cohesion, although unsuccessful, the crime becomes attempted rape. However, if that intention is not proven, the offender can only be convicted of acts of lasciviousness.

The main distinction between the crime of attempted rape and acts of lasciviousness is the intent to lie with the offended woman.

In a case where the accused jumped upon a woman and threw her to the ground, although the accused raised her skirts, the accused did not make any effort to remove her underwear. Instead, he removed his own underwear and placed himself on top of the woman and started performing sexual movements. Thereafter, when he was finished, he stood up and left. The crime committed is only acts of lasciviousness and not attempted rape. The fact that he did not remove the underwear of the victim indicates that he does not have a real intention to effect a penetration. It was only to satisfy a lewd design.

The new law, R.A. 8353, added new circumstance that is, when carnal knowledge was had by means of fraudulent machinations or grave abuse of authority. It would seem that if a woman of majority age had sexual intercourse with a man through the latters scheme of pretending to marry her which is the condition upon which the woman agreed to have sex with him, manipulating a sham marriage, the man would be guilty of Rape under this Section. So also, a prostitute who willingly had sexual congress with a man upon the latters assurance that she would be paid handsomely, may be guilty of Rape if later on he refuses to pay the said amount.

A person in authority who maneuvered a scheme where a woman landed in jail, and who upon promise of being released after having sex with the officer, willingly consented to the sexual act, may also be found guilty of Rape under this new section.