On or about September 29, 2016, the accused, with deliberate
intent and moved by lewd design, taking advantage of the minority of his
15-year old victim, [AAA], and by means of force, threat and intimidation, did
then and there, willfully, unlawfully, and criminally commit acts of
lasciviousness upon her, by kissing her on her cheeks, removing her pants and
panty, and satisfying [his] sexual desire by placing his penis outside of her
vagina, which acts are constitutive of sexual abuse which debases, degrades or demeans
her intrinsic worth and dignity as a human being, to the damage and prejudice
of the said victim. He was charged with Violation of Sec. 5(b) of R.A. No. 7610.
The RTC gave more credence to AAA's testimony than
petitioner's twin defenses of denial and alibi. The CA affirmed with
modification the ruling of the RTC, ruling that the proper nomenclature of the
offense committed should be "Lascivious Conduct under Section 5(b) of R.A.
No. 7610" instead of "Acts of Lasciviousness in relation to Section
5(b) of R.A. No. 7610." CA denied
the MR, hence this petition for review on certiorari under
Rule 45.
ISSUE:
Whether the prosecution had successfully established all the
elements of Lascivious Conduct under Sec. 5(b) of R.A. No. 7610.
RULING:
Yes. The SC ruled that the prosecution had successfully
established all the elements of Lascivious Conduct under Sec. 5(b) of R.A. No.
7610.
The Court reiterated its ruling in the recent case of People
v. Agao, that rape of a female victim by a 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 at the slightest degree.
When the penis of the offender merely strokes the external
surface of the victim's vagina, the same cannot be considered as consummated
rape. Rather, it can be classified only as either attempted rape or acts of
lasciviousness. It is considered attempted rape if it can be established that
the offender had the criminal intent to lie with the victim. If such intent to
lie or have carnal knowledge is not established, then the crime committed is
only acts of lasciviousness under the RPC, or lascivious conduct, if it falls
under Sec. 5(b) of R.A. No. 7610.
In the instant case, the testimony of AAA demonstrates that
petitioner placed his penis outside her vagina while they were standing up and
made a push and pull movement. Nowhere in the statement of AAA does it show,
whether expressly or impliedly, that petitioner's penis, although placed on top
of her vagina, touched either the labia majora or the labia
minora of the pudendum. AAA was asked thrice regarding how petitioner
committed the act of sexual molestation and she consistently answered that
petitioner only placed his penis on top of her vagina. Thus, there can be no
consummated rape as there was no slightest penetration of the female organ.
Pursuant to Agao, these jurisprudential
guideposts provide that when the necessary genital contact is not explicitly
described through the testimony of the victim, whether minor or otherwise,
courts can base their appreciation of the genital contact on other aspects that
would similarly illustrate the occurrence and circumstance of penile
penetration. The courts are enjoined to exercise circumspection and use the
following surrounding or attendant circumstances to aid them in their appreciation
of penile penetration: (i) when the victim testifies that she felt pain in her
genitals; (ii) when there is bleeding in the same; (iii) when the labia
minora was observed to be gaping or has redness or otherwise
discolored; (iv) when the hymenal tags are no longer visible; or (v) when the
sex organ of the victim has sustained any other type of injury.
Here, the testimony of AAA does not demonstrate that any of
the abovementioned circumstances were present to imply that petitioner had
carnal knowledge of AAA. Again, at best the evidence established that
petitioner placed his penis outside the victim's genitals, without any
indication that there was the slightest penetration.
Neither can petitioner's act be considered as attempted rape. The record is
bereft of any showing that when petitioner placed his penis on top of the
victim's vagina, he had ultimate intent of having carnal knowledge of AAA. As
stated in Agao, one of the indications that an accused had intent
to lie with the victim in the crime of attempted rape is when the perpetrator
had an erect penis.
In the case at bench, it does not appear that the direct overt acts of
petitioner establish the intent to lie with AAA. Instead, he completed his
lustful desire simply by placing his penis on top of the victim's vagina and by
doing a push and pull movement without any indication that he had the intent to
commit the slightest penetration of the cleft of the labia majora.
Undoubtedly, the crime committed by petitioner is Lascivious Conduct under Sec.
5(b) of R.A. No. 7610, which provides:
Section 5. Child Prostitution and Other Sexual Abuse. —
Children, whether male or female, who for money, profit, or any other
consideration or due to the coercion or influence of any adult, syndicate or
group, indulge in sexual intercourse or lascivious 9onduct, are deemed to be
children exploited in prostitution and other sexual abuse.
The prosecution's evidence had sufficiently established the
elements of lascivious conduct under Sec. 5(b) of R.A. No. 7610. The evidence
confirms that petitioner committed lascivious acts against AAA, who narrated
that on September 29, 2016, petitioner dragged her to the unused pigpen of
"Kapitana" where he kissed her cheeks and thereafter removed
both his and AAA's clothes. Petitioner then placed his penis on top of, and
rubbed it against, her vagina. The victim even suffered an epileptic seizure
during the ordeal. Undoubtedly, the foregoing overt acts of petitioner qualify
as lascivious conduct under Sec. 2(h) of the IRR of R.A. No. 7610.
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