Lutap v. People

Mere touching of a female's sexual organ, without any showing of insertion or demonstrable intent to insert, does not constitute rape or even attempted rape, but consummates the crime of acts of lasciviousness under Article 336 of the RPC in relation to Section 5 of R.A. 7610 when the victim is under 12 years of age.

Petitioner Edmisael C. Lutap, also known as "Egay," was the best friend of AAA's father and frequently visited the family's home, where AAA knew and trusted him. AAA was six years old at the time of the incident, having been born on September 11, 1997. The case requires distinguishing among rape by sexual assault under Article 266-A paragraph 2 of the Revised Penal Code as amended by R.A. 8353 (Anti-Rape Law of 1997), attempted rape, and acts of lasciviousness under Article 336 of the RPC in relation to Section 5 of R.A. 7610 (Special Protection of Children Against Abuse, Exploitation and Discrimination Act), which governs sexual abuse of children below 12 years of age.

At the time of the incident on April 27, 2004, AAA was six years old, having been born on September 11, 1997. Petitioner Edmisael C. Lutap, also known as "Egay," was the best friend of AAA's father and frequently visited the family's home. Around 6:30 in the evening of that day, AAA and her younger siblings, BBB and CCC, were watching television in the sala together with petitioner. Their mother, DDD, was cooking dinner in the kitchen, separated from the sala only by a concrete wall. AAA was wearing short pants and was sitting on the floor with her legs spread apart while watching television and playing with "text cards." BBB was seated on a chair beside CCC, about five steps away from AAA, while petitioner was seated on the sofa one foot away from AAA.

Petitioner then touched AAA's vagina. AAA reacted by swaying off his hand. BBB saw petitioner using his middle finger in touching AAA's vagina, whereupon BBB remarked, "Kuya Egay, bad iyan, wag mong kinikiliti ang pepe ni Ate." BBB went to the kitchen and told DDD that petitioner was bad because he was tickling AAA's vagina. DDD called AAA, brought her inside a room, and asked whether it was true that petitioner tickled her vagina. AAA answered that she had swayed his hand, and when asked how many times, said "many times in [petitioner's] house" and that he also "let her go on the bed, remove her panty, open her legs and lick her vagina." DDD confronted petitioner, who said it was because AAA's panty was wet and apologized. The next day, April 28, 2004, DDD brought AAA to Camp Crame for medical examination, but because the doctor was unavailable, AAA was examined only on April 30, 2004.

In defense, petitioner denied the accusations. He testified that he merely pacified AAA and BBB, who were quarreling over text cards; when he separated the children, BBB said "bad yan, bad." Thereafter, DDD talked to her two children in the kitchen and, upon coming out, asked petitioner if he touched AAA. Petitioner denied touching AAA and suggested she be examined. The defense also presented Melba Garcia, a Purok Leader, who testified that petitioner enjoyed a good reputation while DDD was the subject of several complaints from neighbors.

The RTC gave full credit to AAA's and BBB's candid testimonies, finding that petitioner inserted his finger into AAA's vagina, and convicted him of rape by sexual assault. On appeal, the CA revisited the same testimonies and found no insertion — only that petitioner's finger merely touched or slightly touched AAA's vagina without too much pressure — and accordingly modified the conviction to attempted rape. The Supreme Court agreed that insertion was not established beyond reasonable doubt but found that the act of touching, standing alone, did not constitute even attempted rape; rather, it consummated acts of lasciviousness.

• No Basis for Attempted Rape: Petitioner questioned the CA's finding that attempted rape was committed, arguing that there was absolutely no showing that petitioner's sexual organ had ever touched the victim's vagina or any part of her body.
• No Intent to Insert: Petitioner argued that there was no clear, competent, convincing, and positive evidence that he touched the victim's vagina with the intention of forcefully inserting his finger inside.
• Victim Was Clothed: Petitioner directed the Court's attention to the fact that at the time of the alleged incident, AAA was well clothed, her vagina fully covered as she was then wearing a panty and short pants.

• Sufficiency of Evidence for Attempted Rape: Whether the CA erred in convicting petitioner for the crime of attempted rape on the basis of the evidence presented.
• Proper Classification of the Offense: Whether the act of touching the victim's sexual organ constitutes attempted rape by sexual assault or acts of lasciviousness.

• Sufficiency of Evidence for Attempted Rape: Yes, the CA erred. The act of touching a female's sexual organ, standing alone, does not amount to rape or even attempted rape; there must be a clear showing of intent to insert, demonstrated through overt acts directly connected to rape.
• Proper Classification of the Offense: The proper conviction is for acts of lasciviousness under Article 336 of the RPC in relation to Section 5 of R.A. 7610, an offense included in the charge of rape by sexual assault pursuant to the variance doctrine under Sections 4 and 5 of Rule 120 of the Rules of Criminal Procedure.

• Sufficiency of Evidence for Attempted Rape: The Court agreed with the CA that the fact of insertion was not established beyond reasonable doubt. The direct examination of AAA yielded only that petitioner "touched" her vagina and that she "swayed off his hands." BBB's testimony, despite his demonstration of moving his middle finger, clarified upon questioning that the touching was "not too much" (hindi po masyado) and that petitioner's finger reached only the area below the vagina, not inside it. Citing People vs. Mendoza, which in turn relied on People vs. Campuhan, the Court explained that for rape by sexual assault with the use of fingers to prosper, there must be evidence of at least the slightest penetration of the sexual organ and not merely a brush or graze of its surface. Absent any showing of actual insertion, petitioner could not be held liable for consummated rape by sexual assault. As for attempted rape, the Court applied by analogy the principles in Cruz vs. People, which require that the State show overt acts demonstrating the intent to lie with the female — that is, overt acts which, if carried to complete termination without extraneous interruption, would ripen into rape. Petitioner's act of touching AAA's vagina by constantly moving his middle finger could not convincingly be interpreted as demonstrating an intent to actually insert his finger inside AAA's sexual organ, which was still protectively covered by panty and shorts, much less an intent to have carnal knowledge. When AAA swayed off his hand, petitioner ceased; this did not establish the commencement of the act of insertion that would characterize attempted rape.

• Proper Classification of the Offense: Petitioner's lewd act of fondling AAA's sexual organ consummated the felony of acts of lasciviousness. The Court cited People vs. Bonaagua for the distinction that the slightest penetration into one's sexual organ distinguishes rape from acts of lasciviousness; where there was neither insertion nor an attempt to insert, only acts of lasciviousness could be convicted. Pursuant to the variance doctrine under Section 4 in relation to Section 5 of Rule 120, acts of lasciviousness — the offense proved — is included in rape, the offense charged. All elements of acts of lasciviousness under Article 336 of the RPC were present: petitioner committed an act of lasciviousness upon AAA, and the act was committed upon a child under 12 years of age. Additionally, Section 5(b) of R.A. 7610 applied because AAA was six years old at the time, and the element of "influence" was satisfied: AAA, being of tender age, knew and trusted petitioner, who frequented their house as her father's best friend. Section 2(h) of the IRR of R.A. 7610 defines lascivious conduct as including the intentional touching, either directly or through clothing, of the genitalia with intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person. Quimvel vs. People established that Section 5(b) covers situations where a child, through coercion, intimidation, or influence, engages in lascivious conduct, and that "coercion and influence" is broad enough to cover force and intimidation. Following People vs. Caoili, petitioner was convicted of acts of lasciviousness under Article 336 of the RPC in relation to Section 5 of R.A. 7610, with the imposable penalty of reclusion temporal in its medium period because the victim was below 12 years old. Applying the Indeterminate Sentence Law, and absent mitigating or aggravating circumstances, the minimum term was taken from reclusion temporal minimum (12 years and 1 day to 14 years and 8 months) and the maximum from reclusion temporal medium (15 years, 6 months, and 20 days to 16 years, 5 months, and 9 days).

• Variance doctrine (Section 4 in relation to Section 5, Rule 120, Rules of Criminal Procedure) — When there is a variance between the offense charged and that proved, and the offense as charged includes or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged. The Court applied this doctrine to convict petitioner of acts of lasciviousness, the offense proved, which is included in rape by sexual assault, the offense charged.

• Distinction between rape by sexual assault and acts of lasciviousness — The slightest penetration into the sexual organ distinguishes rape from acts of lasciviousness. For rape by sexual assault using fingers, there must be evidence of at least the slightest penetration and not merely a brush or graze of the surface. Absent any penetration, the act constitutes acts of lasciviousness, not rape.

• Elements of acts of lasciviousness (Article 336, RPC) — The crime is consummated when: (a) the offender commits any act of lasciviousness or lewdness upon another person of either sex; and (b) the act is committed either (i) by using force or intimidation, or (ii) when the offended party is deprived of reason or is otherwise unconscious, or (iii) when the offended party is under 12 years of age. All elements were present: petitioner fondled AAA's vagina, and AAA was six years old.

• Application of R.A. 7610 to child victims below 12 years old — Section 5(b) of R.A. 7610 covers not only situations where a child is abused for profit but also where a child, through coercion, intimidation, or influence, engages in lascivious conduct. The term "coercion and influence" is broad enough to cover force and intimidation. When the victim is under 12 years of age, the perpetrator shall be prosecuted under Article 336 of the RPC for lascivious conduct, with the penalty of reclusion temporal in its medium period. Section 2(h) of the IRR defines lascivious conduct as the intentional touching, either directly or through clothing, of the genitalia with intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.

• Requirements for attempted rape by sexual assault — To establish attempted rape, the State must show overt acts demonstrating the intent to commit rape — acts which, if carried to complete termination without extraneous interruption, would ripen into rape. Mere touching of the sexual organ, without any demonstrable intent to insert, does not satisfy this requirement.

• "The act of touching a female's sexual organ, standing alone, is not equivalent to rape, not even an attempted one." — This passage states the ratio decidendi: the controlling distinction between mere touching and rape or attempted rape, which determined that petitioner could only be convicted of acts of lasciviousness.

• "Applying by analogy the above pronouncements to attempted rape by sexual assault, petitioner's direct overt act of touching AAA's vagina by constantly moving his middle finger cannot convincingly be interpreted as demonstrating an intent to actually insert his finger inside AAA's sexual organ which, to reiterate, was still then protectively covered, much less an intent to have carnal knowledge with the victim." — This passage applies the attempted-rape overt-act requirement to sexual assault by finger insertion, explaining why the conviction for attempted rape could not stand.

• "Since there was neither an insertion nor an attempt to insert petitioner's finger into AAA's genitalia, petitioner can only be held guilty of the lesser crime of acts of lasciviousness following the variance doctrine enunciated under Section 4 in relation to Section 5 of Rule 120 of the Rules on Criminal Procedure." — This passage articulates the doctrinal basis for the conviction: the variance doctrine permits conviction for the lesser included offense proved.

• "Conclusively, the elements of acts of lasciviousness under Article 336 of the RPC and of lascivious conduct under R.A. 7610 were established in the present case." — This passage confirms the convergence of both statutory frameworks — the RPC and R.A. 7610 — in sustaining the conviction for acts of lasciviousness.

• People vs. Mendoza, 595 Phil. 11197 (2008) — Controlling authority cited for the proposition that rape by sexual assault using fingers requires evidence of at least the slightest penetration and not merely a brush or graze of the surface. The Court relied on this case to hold that petitioner's act of touching did not constitute consummated rape by sexual assault.

• People vs. Campuhan, 385 Phil. 912 (2000) — Cited through Mendoza for the principle that "touching" in rape cases does not mean mere epidermal contact or grazing of organs; there must be proof that the penis indeed touched the labia or slid into the female organ. Applied by analogy to rape by sexual assault with fingers.

• Cruz vs. People, 745 Phil. 54 (2014) — Instructive authority on the requirements for attempted rape: the State must show overt acts demonstrating the intent to lie with the female, acts which would ripen into rape if carried to complete termination. Applied by analogy to attempted rape by sexual assault.

• People vs. Bonaagua, 665 Phil. 750 (2011) — Cited for the distinction that the slightest penetration into the sexual organ distinguishes rape from acts of lasciviousness; absent penetration, the act constitutes acts of lasciviousness.

• Quimvel vs. People, G.R. No. 214497, April 18, 2017 — En Banc precedent establishing that Section 5(b) of R.A. 7610 covers situations where a child engages in lascivious conduct through coercion, intimidation, or influence, and that "coercion and influence" is broad enough to cover force and intimidation. Applied to satisfy the element of influence given AAA's tender age and trust in petitioner.

• People vs. Caoili, G.R. No. 196342, August 8, 2017 — Followed for the ruling that when the minor victim is below 12 years old, the accused should be convicted of acts of lasciviousness under Article 336 of the RPC in relation to Section 5 of R.A. 7610, with the imposable penalty of reclusion temporal in its medium period.

• People vs. Padlan, G.R. No. 214880, September 6, 2017 — Followed for the award of moral damages, exemplary damages, fine of ₱15,000 each, and civil indemnity of ₱20,000 in acts of lasciviousness cases.

• Article 266-A, Revised Penal Code (as amended by R.A. 8353) — Defines rape committed in two ways: paragraph 1, rape through sexual intercourse (carnal knowledge under circumstances of force, threat, intimidation, fraud, abuse of authority, or victim under 12 years of age or demented); paragraph 2, rape by sexual assault (inserting penis into mouth or anal orifice, or any instrument or object into genital or anal orifice, under the same circumstances). The Court found that paragraph 2 was not satisfied because insertion was not proven.

• Article 266-B, Revised Penal Code — Prescribes penalties for rape. The RTC had applied this provision in convicting petitioner of rape by sexual assault; the Supreme Court reversed that conviction.

• Article 336, Revised Penal Code — Defines and penalizes acts of lasciviousness. The essential elements are: (a) the offender commits any act of lasciviousness or lewdness upon another person of either sex; and (b) the act is committed by using force or intimidation, or when the offended party is deprived of reason or unconscious, or when the offended party is under 12 years of age. All elements were found present.

• Section 5(b), Republic Act No. 7610 — Defines child prostitution and other sexual abuse and prescribes the penalty of reclusion temporal in its medium period to reclusion perpetua. When the victim is under 12 years of age, the perpetrator shall be prosecuted under Article 336 of the RPC for lascivious conduct, with the penalty of reclusion temporal in its medium period. Applied because AAA was six years old.

• Section 2(h), IRR of R.A. 7610 — Defines "lascivious conduct" as the intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus, or mouth, with intent to abuse, humiliate, harass, degrade, or arouse or gratify sexual desire. Applied to classify petitioner's act of touching AAA's vagina through her clothing as lascivious conduct.

• Section 4 in relation to Section 5, Rule 120, Rules of Criminal Procedure — The variance doctrine: when there is a variance between the offense charged and that proved, and the offense charged includes or is necessarily included in the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged. Applied to convict petitioner of acts of lasciviousness, which is included in the charge of rape by sexual assault.

Sereno, C.J. (Chairperson), Leonardo-De Castro, Del Castillo, and Reyes, Jr., JJ.

None.