Attempted rape

"x x x.

Conformably with this limitation, our review focuses only on determining the question of law of whether or not the petitioner’s climbing on top of the undressed AAA such that they faced each other, with him mashing her breasts and touching her genitalia with his hands, constituted attempted rape, the crime for which the RTC and the CA convicted and punished him. Based on the information, supra, he committed such acts "with intent of having carnal knowledge ofher by means of force, and if the accused did not accomplish his purpose that is to have carnal knowledge of the said AAA it was not because of his voluntary desistance but because the said offended party succeeded in resisting the criminal attempt of said accused to the damage and prejudice of said offended party."

There is an attempt, according to Article 6 of the Revised Penal Code, when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than this own spontaneous desistance. In People v. Lamahang,14 the Court, speaking through the eminent Justice Claro M.Recto, eruditely expounded on what overt acts would constitute anattempted felony, to wit:

It is our opinion that the attempt to commit an offense which the Penal Code punishes is that which has a logical relation to a particular, concrete offense; that, which is the beginning of the execution of the offense by overt acts of the perpetrator, leading directly to its realization and consummation. The attempt to commit an indeterminate offense, inasmuch as its nature in relation to its objective is ambiguous, is not a juridical fact from the standpoint of the Penal Code. xxxx But it is not sufficient, for the purpose of imposing penal sanction, that an act objectively performed constitute a mere beginning of execution; it is necessary to establish its unavoidable connection, like the logical and natural relation of the cause and its effect, with the deed which, upon its consummation, will develop into one of the offenses defined and punished by the Code; it is necessary to prove that said beginning of execution, if carried to its complete termination following its natural course, without being frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete offense. x x x x.

"It must be borne in mind (I Groizard, p. 99) that in offenses not consummated, as the material damage iswanting, the nature of the action intended (accion fin) cannot exactly be ascertained, but the same must be inferred from the nature of the acts of execution (accion medio). Hence, the necessity that these acts be such that by their very nature, by the facts to which they are related, by the circumstances of the persons performing the same, and by the things connected therewith, they must show without any doubt, that they are aimed at the consummation of a crime. Acts susceptible of double interpretation, that is, in favor as well as against the culprit, and which show an innocent aswell as a punishable act, must not and cannot furnish grounds by themselves for attempted or frustrated crimes. The relation existing between the facts submitted for appreciation and the offense of which said facts are supposed to produce must be direct; the intention must be ascertainedfrom the facts and therefore it is necessary, in order to avoid regrettable instance of injustice, that the mind be able to directly infer from them the intention of the perpetrator to cause a particular injury. This must have been the intention of the legislator in requiring that in order for an attempt to exist, the offender must commence the commission of the felony directly by overt acts, that is to say, that the acts performed must be such that, withoutthe intent to commit an offense, they would be meaningless."15

To ascertain whether the acts performed by the petitioner constituted attempted rape, we have to determine the law on rape in effect on December 21, 1993, when the petitioner committed the crime he was convicted of. That law was Article 335 of the Revised Penal Code, which pertinently provided as follows:

Article 335. When and how rape is committed. — Rape is committed by having carnal knowledge of a woman under any of the following circumstances:

1. By using force or intimidation;

2. When the woman is deprived ofreason or otherwise unconscious; and

3. When the woman is under twelve years of age, even though neither of the circumstances mentioned in the two next preceding paragraphs shall be present.

x x x x

The basic element of rape then and now is carnal knowledge of a female. Carnal knowledge isdefined simply as "theact of a man having sexual bodily connections with a woman,"16 which explains why the slightest penetration of the female genitalia consummates the rape. In other words, rape is consummated once the peniscapable of consummating the sexual act touches the external genitalia of the female.17 In People v. Campuhan,18 the Court has defined the extent of "touching" by the penis in rape in the following terms:

[T]ouching when applied to rape cases does not simply mean mere epidermal contact, stroking or grazing of organs, a slight brush or a scrape of the penis on the external layer of the victim’s vagina, or the mons pubis, as in this case. There must be sufficient and convincing proof that the penis indeedtouched the labias or slid into the female organ, and not merely stroked the external surface thereof, for an accused to be convicted of consummated rape. As the labias, which are required to be "touched" bythe penis, are by their natural situsor location beneath the mons pubisor the vaginal surface, to touch them with the penis is to attain some degree of penetration beneath the surface, hence, the conclusion that touching the labia majora or the labia minora of the pudendum constitutes consummated rape.

The pudendumor vulvais the collective term for the female genital organs that are visible in the perineal area, e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris, the vaginal orifice, etc. The mons pubisis the rounded eminence that becomes hairy after puberty, and is instantly visible within the surface. The next layer is the labia majoraor the outer lips of the female organ composed of the outer convex surface and the inner surface. The skin of the outer convex surface is covered with hair follicles and is pigmented, while the inner surface is a thin skin which does not have any hair but has many sebaceous glands. Directly beneath the labia majorais the labia minora. Jurisprudence dictates that the labia majoramust be entered for rape to be consummated, and not merely for the penis to stroke the surface of the female organ. xxxx Thus, a grazing of the surface of the female organ or touching the mons pubisof the pudendum is not sufficient to constitute consummated rape. Absent any showing of the slightest penetration of the female organ, i.e., touching of either labia of the pudendumby the penis, there can be no consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness. [Bold emphasis supplied]

It is noteworthy that in People v. Orita,19 the Court clarified that the ruling in People v. Eriñia20 whereby the offender was declared guilty of frustrated rapebecause of lack of conclusive evidence of penetration of the genital organ of the offended party, was a stray decisionfor not having been reiterated in subsequent cases. As the evolving case law on rape stands, therefore, rape in its frustrated stage is a physical impossibility, considering that the requisites of a frustrated felony under Article 6 of the Revised Penal Codeare that: (1) the offender has performed all the acts of execution which would produce the felony; and (2) that the felony is not produced due to causes independent of the perpetrator’s will. Obviously, the offender attains his purpose from the moment he has carnal knowledge of his victim, because from that moment all the essential elements of the offense have been accomplished, leaving nothing more to be done by him.21

Nonetheless, rape admits of an attempted stage. In this connection, the character of the overt actsfor purposes of the attempted stage has been explained in People v. Lizada:22

An overt or external act is defined as some physical activity or deed, indicating the intention to commit a particular crime, more than a mere planning or preparation, which if carried out to its complete termination following its natural course, without being frustrated by external obstacles nor by the spontaneous desistance of the perpetrator, will logically and necessarily ripen into a concrete offense. The raison d’etrefor the law requiring a direct overtact is that, in a majority of cases, the conduct of the accused consisting merely of acts of preparation has never ceased to be equivocal; and this is necessarily so, irrespective of his declared intent. It is that quality of being equivocal that must be lacking before the act becomes one which may be said to be a commencement of the commission of the crime, or an overt act or before any fragment of the crime itself has been committed, and this is so for the reason that so long as the equivocal quality remains, no one can say with certainty what the intent of the accused is.It is necessary that the overt act should have been the ultimate step towards the consummation of the design. It is sufficient if it was the "first or some subsequent step in a direct movement towards the commission of the offense after the preparations are made." The act done need not constitute the last proximate one for completion. It is necessary, however, that the attempt must have a causal relation to the intended crime. In the words of Viada, the overt acts must have an immediate and necessary relation to the offense. (Bold emphasis supplied)

In attempted rape, therefore, the concrete felony is rape, but the offender does not perform all the acts of execution of having carnal knowledge. If the slightest penetration of the female genitalia consummates rape, and rape in its attempted stage requires the commencement of the commission of the felony directly by overt actswithout the offender performing all the acts of execution that should produce the felony, the only means by which the overt acts performed by the accused can be shown to have a causal relation to rape as the intended crime is to make a clear showing of his intent to lie with the female. Accepting that intent, being a mental act, is beyond the sphere of criminal law,23 that showing must be through his overt acts directly connected with rape. He cannot be held liable for attempted rape withoutsuch overt acts demonstrating the intent to lie with the female. In short, the State, to establish attempted rape, must show that his overt acts, should his criminalintent be carried to its complete termination without being thwarted by extraneous matters, would ripen into rape,24 for, as succinctly put in People v. Dominguez, Jr.:25 "The gauge in determining whether the crime of attempted rape had been committed is the commencement of the act of sexual intercourse, i.e., penetration of the penis into the vagina, before the interruption."

The petitioner climbed on top of the naked victim, and was already touching her genitalia with his hands and mashing her breasts when she freed herself from his clutches and effectively ended his designs on her. Yet, inferring from such circumstances thatrape, and no other,was his intended felony would be highly unwarranted. This was so, despite his lust for and lewd designs towards her being fully manifest. Such circumstances remained equivocal, or "susceptible of double interpretation," as Justice Recto put in People v. Lamahang, supra, such that it was not permissible to directly infer from them the intention to cause rape as the particular injury. Verily, his felony would not exclusively be rapehad he been allowed by her to continue, and to have sexual congress with her, for some other felony like simple seduction (if he should employ deceit to have her yield to him)26 could also be ultimate felony.

We clarify that the direct overt acts of the petitioner that would have produced attempted rape did not include equivocal preparatory acts. The former would have related to his acts directly connected to rape as the intended crime, but the latter, whether external or internal, had no connection with rape as the intended crime. Perforce, his perpetration of the preparatory acts would not render him guilty of an attempt to commit such felony.27 His preparatory acts could include his putting up of the separate tents, with one being for the use of AAA and BBB, and the other for himself and his assistant, and his allowing his wife to leave for Manila earlier that evening to buy more wares. Such acts, being equivocal, had no direct connection to rape. As a rule, preparatory acts are not punishable under the Revised Penal Codefor as long as they remained equivocal or of uncertain significance, because by their equivocality no one could determine with certainty what the perpetrator’s intent really was.28

x x x."


See:

G.R. No. 166441, October 8, 2014

NORBERTO CRUZ y BARTOLOME, Petitioner,
vs. PEOPLE OF THE PHILIPPINES, Respondent.