Lascivious conduct through fraudulent machination

QUESTION: “A” is married to “X”. “Z” pretended to be his twin brother, “X”, and by
that ploy he was able to freely undress “A”, kiss her nipples and rub his erect
penis on the mons pubis of her vulva. After a few minutes, “Z” ejaculated. The
crime committed is

(A) Rape since under RA No. 8353 this crime can be committed by means of fraudulent
machination.
(B) Attempted rape because there is intent to have sexual intercourse on the part
of “Z”.
(C) Acts of lasciviousness because “Z” committed lascivious conduct upon “A”
without intent to have sexual intercourse.
(D) Unjust vexation because “Z” did not employ violence or intimation, and hence,
he could not be held liable for acts of lasciviousness.

While it is true that pretending to be a husband of the victim constitutes

fraudulent machination, which is a mode of committing rape under RA No. 8353,
nevertheless “Z” cannot be held liable for consummated rape. Jurisprudence dictates
that the labia majora must be entered for rape to be consummated, and not merely
for the penis to stroke the surface of the female organ. Thus, a grazing of the
surface of the female organ or touching the mons pubis of the pudendum is not
sufficient to constitute consummated rape. Absent any showing of the slightest
penetration of the female organ, i.e., touching of labia majora or minora of the
pudendum by the penis, there can be no consummated rape (People vs. Campuhan, G.R.
No. 129433, March 30, 2000, En Banc). Hence, “A” is not the answer.

“Z” cannot be held liable for attempted rape since he did not cause his erect penis
to enter the labia of “A” in the midst of opportunity thereof. This indicates lack
of intent to have sexual intercourse, which is an indispensable element of
attempted rape (People vs. Abanilla, G.R. Nos. 148673-75, October 17, 2003). Hence,
“B” is not the answer.

Under Article 336 of the Revised Penal Code, any person who shall commit any act of
lasciviousness upon other persons of either sex, under any of the circumstances
mentioned in the preceding article, shall be punished by prision correccional.
Article 335, which is the preceding article of Article 336, is the definitional
provision of rape. Hence, the modes of committing rape such as use of force or
intimidation are the same as those of committing acts of lasciviousness.

RA No. 8353 reclassified rape as crime against persons and made it punishable under
Article 266-A of the Revised Penal Code. Under this provision, fraudulent
machination is a new mode of committing rape. However, since this new mode is not
found under Article 335 of the Code, it cannot be treated as mode of committing
acts of lasciviousness. The terms “the preceding article” mentioned in Article 336
still pertains to Article 335 and not Article 266-A.

In Flordeliz vs. People, G.R. No. 186441, March 3, 2010 - The crime of Acts of
Lasciviousness has the following elements: (1) That the offender commits any act of
lasciviousness or lewdness; (2) That it is done under any of the following
circumstances: a. By using force or intimidation; or b. When the offended party is
deprived of reason or otherwise unconscious; or c. When the offended party is under
12 years of age; and (3) That the offended party is another person of either sex.

In this case, “Z” committed lascivious conduct upon “A” by means of fraudulent
machination and not by using force or intimidation. Hence, “Z” cannot be held
liable for acts of lasciviousness. Without employing force or intimidation, acts of
lewdness constitute the crime of unjust vexation (See: People vs. Bernaldo, CA-G.R.
No. 26102-R, Oct. 31, 1959). Hence, the answer is “D” and not “C”.

Marlo Campanilla
Presiding Judge
Metropolitan Trial Court
Branch 83, Caloocan City