1. Concept and legal basis
| Article 266-B. Penalty. – Rape under paragraph 1 of the next preceding article shall be punished by reclusion perpetua. |
| x x x |
| When by reason or on the occasion ofthe rape, homicide is committed, the penalty shall be death. |
| The death penalty shall also be imposed if the crime of rape is committed with any of the following aggravating/qualifying circumstances: |
| l) When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim; |
| 2) When the victim is under the custody of the police or military authorities or any law enforcement or penal institution; |
| 3) When the rape is committed in full view of the spouse, parent, any of the children or other relatives within the third civil degree of consanguinity; |
| 4) When the 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; |
| 5) When the victim is a child below seven (7) years old; |
| 6) When the offender knows that he is afflicted with the Human Immuno-Deficiency Virus (HIV)/Acquired Immune Deficiency Syndrome (AIDS) or any other sexually transmissible disease and the virus or disease is transmitted to the victim; |
| 7) When committed by any member of the Armed Forces of the Philippines or para-military units thereof or the Philippine National Police or any law enforcement agency or penal institution, when the offender took advantage of his position to facilitate the commission of the crime; |
| 8) When by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation or disability; |
| 9) When the offender knew of the pregnancy of the offended party at the time of the commission of the crime; and |
| 10) When the offender knew of the mental disability, emotional disorder and/or physical handicap of the offended party at the time of the commission of the crime. (Act 3815, Revised Penal Code, as amended by R.A. 11648) |
a. Qualifying circumstances:
l) When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim;
2) When the victim is under the custody of the police or military authorities or any law enforcement or penal institution;
3) When the rape is committed in full view of the spouse, parent, any of the children or other relatives within the third civil degree of consanguinity;
4) When the 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;
5) When the victim is a child below seven (7) years old;
6) When the offender knows that he is afflicted with the Human Immuno-Deficiency Virus (HIV)/Acquired Immune Deficiency Syndrome (AIDS) or any other sexually transmissible disease and the virus or disease is transmitted to the victim;
7) When committed by any member of the Armed Forces of the Philippines or para-military units thereof or the Philippine National Police or any law enforcement agency or penal institution, when the offender took advantage of his position to facilitate the commission of the crime;
8) When by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation or disability;
9) When the offender knew of the pregnancy of the offended party at the time of the commission of the crime; and
10) When the offender knew of the mental disability, emotional disorder and/or physical handicap of the offended party at the time of the commission of the crime. (Paragraph 6, Article 266-B, Act 3815, Revised Penal Code, as amended by R.A. 11648)
2. Elements of the offense
a. 1st Mode
| l) When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim; (Paragraph 6, Article 266-B, Act 3815, Revised Penal Code, as amended by R.A. 11648) |
Elements of the offense:
1) Sexual congress;
2) With a woman;
3) Done by force and without consent;
4) The victim is under eighteen [18] years of age at the time of the rape;
5) The offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim. (People v. XXX, G.R. No. 235662, 24 July 2019)
NB: It is submitted that the 2nd element should also include a man. There is nothing in the law that limits qualified rape against women only.
b. 2nd Mode
| 2) When the victim is under the custody of the police or military authorities or any law enforcement or penal institution; (Paragraph 6, Article 266-B, Act 3815, Revised Penal Code, as amended by R.A. 11648) |
Elements of the offense:
1) Sexual congress;
2) With a woman or a man;
3) Done by force and without consent;
4) The victim is under the custody of the police or military authorities or any law enforcement or penal institution;
5) The offender is a in custody of the victim as a law enforcer.
c. 3rd Mode
| 3) When the rape is committed in full view of the spouse, parent, any of the children or other relatives within the third civil degree of consanguinity; (Paragraph 6, Article 266-B, Act 3815, Revised Penal Code, as amended by R.A. 11648) |
Elements of the offense:
1) Sexual congress;
2) With a woman or a man;
3) Done by force and without consent; and
4) Committed in full view of the spouse, parent, any of the children or other relatives within the third civil degree of consanguinity.
d. 4th Mode
| 4) When the 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; (Paragraph 6, Article 266-B, Act 3815, Revised Penal Code, as amended by R.A. 11648) |
Elements of the offense:
1) Sexual congress;
2) With a woman or a man;
3) Done by force and without consent; and
4) The victim is a religious engaged in legitimate religious vocation or calling; and
5) The victim is personally known to be such by the offender before or at the time of the commission of the crime.
e. 5th Mode
| 5) When the victim is a child below seven (7) years old; (Paragraph 6, Article 266-B, Act 3815, Revised Penal Code, as amended by R.A. 11648) |
Elements of the offense:
1) Sexual congress; and
2) A child below seven (7) years old.
f. 6th Mode
| 6) When the offender knows that he is afflicted with the Human Immuno-Deficiency Virus (HIV)/Acquired Immune Deficiency Syndrome (AIDS) or any other sexually transmissible disease and the virus or disease is transmitted to the victim; (Paragraph 6, Article 266-B, Act 3815, Revised Penal Code, as amended by R.A. 11648) |
Elements of the offense:
1) Sexual congress;
2) With a woman or a man;
3) Done by force and without consent; and
4) The offender knows that he is afflicted with the Human Immuno-Deficiency Virus (HIV)/Acquired Immune Deficiency Syndrome (AIDS) or any other sexually transmissible disease; and
5) The virus or disease is transmitted to the victim.
g. 7th Mode
| 7) When committed by any member of the Armed Forces of the Philippines or para-military units thereof or the Philippine National Police or any law enforcement agency or penal institution, when the offender took advantage of his position to facilitate the commission of the crime; (Paragraph 6, Article 266-B, Act 3815, Revised Penal Code, as amended by R.A. 11648) |
Elements of the offense:
1) Sexual congress;
2) With a woman or a man;
3) Done by force and without consent; and
4) The offender is a member of the Armed Forces of the Philippines or para-military units thereof or the Philippine National Police or any law enforcement agency or penal institution; and
5) The offender took advantage of his position to facilitate the commission of the crime.
h. 8th Mode
| 8) When by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation or disability; (Paragraph 6, Article 266-B, Act 3815, Revised Penal Code, as amended by R.A. 11648) |
Elements of the offense:
1) Sexual congress;
2) With a woman or a man;
3) Done by force and without consent; and
4) By reason or on the occasion of the rape, the victim has suffered permanent physical mutilation or disability.
i. 9th Mode
| 9) When the offender knew of the pregnancy of the offended party at the time of the commission of the crime; (Paragraph 6, Article 266-B, Act 3815, Revised Penal Code, as amended by R.A. 11648) |
Elements of the offense:
1) Sexual congress;
2) With a woman or a man;
3) Done by force and without consent; and
4) The offender knew of the pregnancy of the offended party at the time of the commission of the crime.
j. 10th Mode
| 10) When the offender knew of the mental disability, emotional disorder and/or physical handicap of the offended party at the time of the commission of the crime. (Paragraph 6, Article 266-B, Act 3815, Revised Penal Code, as amended by R.A. 11648) |
Elements of the offense:
1) Sexual congress;
2) With a woman or a man;
3) Done by force and without consent; and
4) T the offender knew of the mental disability, emotional disorder and/or physical handicap of the offended party at the time of the commission of the crime.
References
⦁ Title 8 – Crimes Against Persons, Book 2, Revised Penal Code
/Updated: January 18, 2023
