1. Concept and legal basis
| Article 266-A. Rape; When and How Committed. – Rape is committed: |
| 1) By a person who shall have carnal knowledge of another person under any of the following circumstances: (as amended by R.A. 11648) |
| a) Through force, threat, or intimidation; |
| b) When the offended party is deprived of reason or otherwise unconscious; |
| c) By means of fraudulent machination or grave abuse of authority; and |
| d) When the offended party is under sixteen (16) years of age or is demented, even though none of the circumstances mentioned above be present: Provided, That there shall be no criminal liability on the part of a person having carnal knowledge of another person sixteen (16) years of age when the age difference between the parties is not more than three (3) years, and the sexual act in question is proven to be consensual, non-abusive, and non-exploitative: Provided, further, That if the victim is under thirteen (13) years of age, this exception shall not apply. |
| As used in this Act, non-abusive shall mean the absence of undue influence, intimidation, fraudulent machinations, coercion, threat, physical, sexual, psychological, or mental injury or maltreatment, either with intention or through neglect, during the conduct of sexual activities with the child victim. On the other hand, non-exploitative shall mean there is no actual or attempted act or acts of unfairly taking advantage of the child’s position of vulnerability, differential power, or trust during the conduct of sexual activities. (Act 3815, Revised Penal Code, as amended by R.A. 11648) |
| 2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another person’s mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person. (As added by R.A. 8353) |
| Article 266-B. Penalty. – Rape under paragraph 1 of the next preceding article shall be punished by reclusion perpetua. |
| Whenever the rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death. |
| When by reason or on the occasion of the rape, the victim has become insane, the penalty shall become reclusion perpetua to death. |
| When the rape is attempted and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion perpetua to death. |
| 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. |
| Rape under paragraph 2 of the next preceding article shall be punished by prision mayor. |
| Whenever the rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be prision mayor to reclusion temporal. |
| When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be reclusion temporal. |
| When the rape is attempted and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion temporal to reclusion perpetua. |
| When by reason or on the occasion ofthe rape, homicide is committed, the penalty shall be reclusion perpetua. |
| Reclusion temporal shall be imposed if the rape is committed with any of the ten aggravating/ qualifying circumstances mentioned in this article. (Act 3815, Revised Penal Code, as added by R.A. 8353) |
| Article 266-C. Effect of Pardon. – The subsequent valid marriage between the offended party shall extinguish the criminal action or the penalty imposed. |
| In case it is the legal husband who is the offender, the subsequent forgiveness by the wife as the offended party shall extinguish the criminal action or the penalty: Provided, That the crime shall not be extinguished or the penalty shall not be abated if the marriage is void ab initio. (Act 3815, Revised Penal Code, as added by R.A. 8353) |
| Article 266-D. Presumptions. – Any physical overt act manifesting resistance against the act of rape in any degree from the offended party, or where the offended party is so situated as to render her/him incapable of giving valid consent, may be accepted as evidence in the prosecution of the acts punished under Article 266-A.” (Act 3815, Revised Penal Code, as added by R.A. 8353) |
a. No frustrated rape
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. (Cruz v. People, G.R. No. 166441, 08 October 2014)
b. When attempted rape
In attempted rape, 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. (Ibid.)
2. Elements of the offense
a. 1st Mode
Elements of the offense:
1) The offender had carnal knowledge of the victim; and,
2) Such act was accomplished through force or intimidation; or when the victim is deprived of reason or otherwise unconscious; or when the victim is under twelve years of age. (People v. Tubillo, G.R. No. 220718, 21 June 2017)
b. 2nd Mode
Elements of the offense:
1) The offender commits an act of sexual assault by inserting his penis into another person’s mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person; and,
2) S/he commits the acts under any of the circumstances mentioned under the 1st Mode.
3. Pardon
The subsequent valid marriage between the offended party shall extinguish the criminal action or the penalty imposed. In case it is the legal husband who is the offender, the subsequent forgiveness by the wife as the offended party shall extinguish the criminal action or the penalty: Provided, That the crime shall not be extinguished or the penalty shall not be abated if the marriage is void ab initio. (Article 266-C, Ibid.)
4. Presumptions
Any physical overt act manifesting resistance against the act of rape in any degree from the offended party, or where the offended party is so situated as to render her/him incapable of giving valid consent, may be accepted as evidence in the prosecution of the acts punished under Article 266-A. (Article 266-D, Ibid.)
5. Criminal intent
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 criminal lintent be carried to its complete termination without being thwarted by extraneous matters, would ripen into rape. (Ibid.)
6. Contrasted with other offenses
a. Rape v. Acts of lascivious ness
The fundamental difference between attempted rape and acts of lasciviousness is the offender’s intent to lie with the female. In rape, intent to lie with the female is indispensable, but this element is not required in acts of lasciviousness. Attempted rape is committed, therefore, when the “touching” of the vagina by the penis is coupled with the intent to penetrate. The intent to penetrate is manifest only through the showing of the penis capable of consummating the sexual act touching the external genitalia of the female. Without such showing, only the felony of acts of lasciviousness is committed. (Ibid.)
References
⦁ Title 8 – Crimes Against Persons, Book 2, Revised Penal Code
/Updated: January 18, 2023
