People vs. Dela Peña

Carnal knowledge in rape requires the existence of an erect penis physiologically capable of penetration; where the accused's penis never attained erection and the victim consistently states that no penetration occurred, only attempted rape—not consummated rape—is established, notwithstanding the rule that full penetration of the vaginal orifice is not essential and that mere touching of the external genitalia by a penis capable of consummating the sexual act constitutes carnal knowledge.

Erly Rose P. Marasigan was a nine-year-old third-grade student attending a public elementary school in Mayasan, Valenzuela, Metro Manila. She regularly took a shortcut through an alley between her home and school for her afternoon classes. On July 18, 1991, while using this route alone, she encountered the accused, Gilbert dela Peña, who was standing at a corner of the alley. The initial information filed by the state prosecutor on July 30, 1991 charged only attempted rape, but a subsequent criminal complaint elevated the charge to statutory rape under Article 335(3) of the Revised Penal Code, alleging that dela Peña had carnal knowledge of a girl under twelve years old through force and intimidation.

• The Assault: On July 18, 1991, as Erly Rose traversed the alley shortcut to school, she noticed a man standing at a corner. When she passed, he grabbed her left arm with both hands, pulled her toward a grassy area, and threatened to kill her if she made noise. He ordered her to lie down, then pulled down his pants and briefs, removed her panties, and raised her skirt. He kissed her and attempted to insert his penis into her vagina but failed. According to both the complainant and the accused, he did not have an erection and was unable to achieve any penetration. Failing in the attempt, he instead fondled her vagina and inserted his finger into the vaginal orifice. During the attack, he struck her in the stomach and on both cheeks with his fist. She cried, then feigned death. The accused thereafter fled.

• Immediate Aftermath: After pretending to be dead for approximately five minutes, Erly Rose pulled up her panties, gathered her belongings, and staggered home. A neighbor and friend of her father, Romeo Brojas, noticed her clothes were caked with mud and that she was crying. Upon being informed, Brojas and other neighbors searched for the accused and found him at Rincon Road, Valenzuela, where Erly Rose identified him. Accompanied by her father and neighbors, she narrated the incident to the Valenzuela Police that same day.

• Medical Examination: Pursuant to a police request, Dr. Lowella Nario of the National Bureau of Investigation examined Erly Rose on July 19, 1991. The findings showed no physical evidence of extragenital injuries. The hymen was intact and its orifice was small (0.6 cm in diameter), "as to preclude complete penetration by an average sized, adult, Filipino male organ in full erection without producing any genital injury." No reddening or injuries were found on the victim's private parts.

• Victim's Consistent Testimony of Non-Penetration: Before the Valenzuela Police on the day of the incident, when asked in the vernacular whether dela Peña's penis had entered her vagina, Erly Rose answered, "No, sir." During direct examination, she testified that the accused was kneeling, held his penis with his left hand, and attempted insertion but was unsuccessful. On cross-examination, she confirmed her earlier statement that his penis remained "outside" and that "he was not able to insert it." She consistently stated no penetration had occurred.

• Accused's Corroboration: Testifying in his own defense, dela Peña admitted the incident occurred. He confirmed that his private parts did not enter the victim's private part and that he did not experience an erection during the molestation. He was willing to plead guilty to attempted rape.

• The Shift in Charge: The original information dated July 30, 1991 charged only attempted rape. The subsequent complaint elevated the charge to statutory rape, alleging that the accused "lie with and have sexual intercourse" with the minor victim.

• Sufficiency of Evidence for Statutory Rape: Whether the evidence established beyond reasonable doubt that carnal knowledge, as an element of consummated statutory rape, had occurred, given the consistent testimonies of both the victim and the accused that the latter had no erection and achieved no penetration, and the medical finding of an intact hymen with no signs of injury.

• Sufficiency of Evidence for Statutory Rape: The conviction for consummated statutory rape was not sustained. While settled jurisprudence holds that full penetration is not essential and that mere touching of the external genitalia by a penis capable of consummating the sexual act constitutes carnal knowledge, these precedents rest on "the existence of an underlying assumption of a male sexual organ physiologically capable of accomplishing the act of full penetration at the time of the event." In the instant case, both the victim and the accused agreed that no erection existed and no penetration occurred. The physiological impossibility of penetration absent an erection—complete or otherwise—cannot be gainsaid. Where a victim successfully wards off an attacker with an erect penis, rape may be sustained because penetration would have occurred absent her vigilance; here, however, the obstacle was not vigilance but the absence of an erectile organ altogether. The victim's consistent statements under oath—during police questioning, direct examination, and cross-examination—that no insertion occurred were given full credit, especially given her demonstrated presence of mind in feigning death. The medico-legal findings of an intact hymen and absence of genital injury supported, rather than negated, the conclusion that no penetration had occurred. The offense proved was attempted rape, a lesser offense necessarily included in the charge of consummated rape, warranting conviction for the lesser offense pursuant to Section 4, Rule 120 of the Rules of Court.

• Carnal Knowledge in Rape — Touching of External Genitalia Rule — Full penetration of the vaginal orifice is not an essential ingredient in the commission of rape. The mere touching of the external genitalia by a penis capable of consummating the sexual act constitutes carnal knowledge. However, this rule presupposes the existence of an erectile penis physiologically capable of full penetration. Where such capacity is absent because the accused never attained erection, the element of carnal knowledge is not established, and only attempted rape may be found.

• Absence of Medical Findings in Rape — The absence of seminal fluid, spermatozoa, abrasions, lacerations, hematoma, or an intact hymen does not automatically negate a finding of rape or suggest consent. A medical certificate is not indispensable to a rape prosecution. However, where medical findings confirm both the absence of genital injury and an orifice too small to permit penetration, such evidence may corroborate testimony that no penetration occurred.

• Variance Between Allegation and Proof — Conviction for Lesser Offense — Under Section 4, Rule 120 of the Rules of Court, when the offense proved is different from that charged but is necessarily included in the offense charged, the accused shall be convicted of the offense proved. Attempted rape is a lesser offense included in the charge of consummated rape.

• Penalty for Attempted Rape — By virtue of Article 51 of the Revised Penal Code, the penalty for attempted felonies is two degrees lower than that prescribed for the consummated offense. The penalty for consummated statutory rape being reclusion perpetua, the penalty for attempted rape is prision mayor. Applying the Indeterminate Sentence Law and absent any modifying circumstances, the indeterminate penalty ranges from prision correccional (minimum) to prision mayor (maximum).

• "Settled is the rule that full penetration of the vaginal orifice is not an essential ingredient in the commission of the crime of rape. The mere touching of the external genitalia by a penis capable of consummating the sexual act constitutes carnal knowledge."

• "However, our decisions finding a case for rape even if the attacker's penis merely touched the external portions of the female genitalia were made in the context of the presence of the existence of an erectile penis capable of full penetration. The physiologic impossibility of penetration absent an erection—complete or otherwise—cannot be gainsaid."

• "If, because of the victim's vigilant attempts at warding off her attacker's sexual advances an accused in a case of rape is unable to accomplish the act of completely penetrating his victim's vaginal orifice, a charge for rape under existing jurisprudence can be sustained anyhow, because full penetration would have been accomplished if the penis were erect, were it not for the victim's vigilance or the occurrence of other circumstances which might have frustrated the accomplishment of complete penetration. That is not the case here."

• "The gravamen of the offense of statutory rape as provided for in Article 335, paragraph 3 of the Revised Penal Code is carnal knowledge of a woman below 12 years old. In the case at bench, there was an attempt, which the accused-appellant does not deny, but carnal knowledge did not actually occur."

• People v. Lomibao, 55 Phil. 616 (1931); People v. Pastores, 40 SCRA 498 (1971); People v. Catalino Oscar, 48 Phil. 527 (1925); People v. Amores, 58 SCRA 505 (1974); People v. Abonada, 169 SCRA 530 (1989); People v. Navarro, 221 SCRA 684 (1993) — These cases established the rule that full penetration of the vaginal orifice is not essential for consummated rape, provided the touching occurred with a penis capable of consummation. The Supreme Court distinguished these precedents on the ground that they involved an underlying assumption of an erect penis, which was absent in the instant case.

• People v. Somera, 170 SCRA 428 (1989) — This case affirmed that mere touching of the external genitalia by a penis constitutes carnal knowledge. Distinguished on the same ground as above.

• People v. Almenario, 172 SCRA 268 (1989) — This case held that the absence of physical findings on medical examination does not negate a finding of carnal knowledge. Applied in part but distinguished in that here, the medical findings corroborated the absence of penetration rather than being used to disprove rape despite penetration.

• Article 335, paragraph 3, Revised Penal Code — Statutory rape is defined as having carnal knowledge of a woman under twelve years of age, regardless of force, intimidation, or consent. The gravamen is carnal knowledge. Applied to define the elements of the charged offense; the Court found only one element—carnal knowledge—lacking, thus reducing the crime to attempted rape.

• Article 51, Revised Penal Code — The penalty for an attempted felony is two degrees lower than that prescribed by law for the consummated felony. Applied to impose the penalty of prision mayor for attempted statutory rape, from the prescribed reclusion perpetua for the consummated offense.

• Indeterminate Sentence Law (Act No. 4103, as amended) — Applied in conjunction with Article 51 to determine the indeterminate sentence ranging from prision correccional medium as minimum to prision mayor medium as maximum, in the absence of modifying circumstances.

• Section 4, Rule 120, Rules of Court — Where a variance exists between the offense charged and that proved, and the offense proved is included in that charged, judgment shall be for the offense proved. Applied to convict the accused of attempted rape, a lesser offense included in the charge of consummated statutory rape.

Cruz, Davide, Jr., Bellosillo, and Quiason, JJ., concurred.

N/A — The decision was unanimous.