People v. Efren Agao, G.R. No. 248049, 04 Oct.

2022

This appeal came from two Informations charging the accused-appellant Efren Agao with two
counts of statutory rape under Article-266 A par. 1 and Art. 266-B of the Revised Penal Code, as
amended by Republic Act No. 8353 in conjunction with R.A. 7610. AAA, who was then 10 years
old, testified that appellant first raped her in 2010. AAA woke up to find appellant touching her
breasts and vagina, and trying to insert his penis into her vagina. Appellant managed to
introduce the same into AAA’s outer fold or labia majora, but he was allegedly unable to fully
penetrate AAA’s vagina because she kept fighting back.

Appellant continued to molest AAA, including in 2012, when appellant raped AAA while she was
sleeping. AAA woke up to find appellant touching her breast and trying to insert his penis into
her vagina. In both incidents, appellant was not able to fully penetrate AAA’s vagina because she
put up a fight.

Issue is whether full penile penetration is required for the crime of rape to be consummated.

SC ruled that no, full penile penetration is not required for the crime of rape to be
consummated.

The Court reiterates that the rape of a female victim by a male person through penile
penetration reaches the consummated stage as soon as the penis penetrates the cleft of the
labia majora (also known as the vulval or pudendal cleft, or the fleshy outer lip of the vulva) in
even the slightest degree. Simply put, the mere introduction, however slight, into the cleft of the
labia majora by a penis that is capable of penetration, regardless of whether such penile
penetration is fully achieved, consummates the crime of rape.

Furthermore, jurisprudence considers as consummated rape when it describes a penis touching

the vagina as the penis penetrating the cleft of the labia majora, however minimum or slight.
Mere grazing by the penis of the fleshy portion, not the vulval cleft of the labia majora, will
constitute attempted rape and not consummated rape. Stated differently, a “mere touch” of the
penis on the labia majora legally contemplates not mere surface touch or skin contact, but the
slightest penetration of the vulva or pudenda cleft, however minimum in degree.

For as long as the prosecutorial evidence is able to establish that the penis of the accused
penetrated the vulval cleft or the cleft of the labia majora (i.e., the cleft of the fleshy outer lip of
the victim’s vagina), however slight the introduction may be, the commission of rape already
crossed the threshold of the attempted stage and into its consummation.

In the converse, when there is no touching by the penis of the vulval cleft of the victim’s
genitalia in a case of rape through penile penetration, there can be no finding of consummated
rape but only attempted rape or acts of lasciviousness, as the case may be. The appeal was
dismissed.

To better explain the operative definition of rape, the SC provided a brief description and
illustrations of the external parts of the female reproductive organ. It also included “a clear
indication of the situs of the pertinent parts, in order to categorically delineate for the bench
and the bar which physical threshold, when crossed, constitutes rape in the consummated
stage.”

When applied to Agao’s case, the SC found that the Agao’s erect penis that touched the
daughter’s vulval cleft “categorically shows” the minimum penile-vaginal contact between the
male organ and the vulval cleft needed to prove that rape was present. But, the High Court ruled
that Agao should only be convicted of one charge of statutory rape, where the crime was
committed when the victim was only 10 years old.

Since the other crime was committed when the victim was 13 years old, the other charge
against Agao should be reduced to simple rape, the High Court said.

The Court then concluded that “mere introduction, however slight, into the cleft of the labia
majora by a penis that is capable of penetration, regardless of whether such penile penetration
is thereafter fully achieved, consummates the crime of rape.

Reconciling the diverging rulings in existing jurisprudence, the Court clarified that “mere touch”
of the penis on the labia majora legally contemplates not mere surface touch or skin contact,
but the slightest penetration of the vulval or pudendal cleft, however minimum in degree.”

The Court stressed that such clarification is necessary, as otherwise any nature and degree of
touch of a penis of the female genitalia can be considered consummated rape, effectively
resulting in all sexual assaults involving a penis and the vulva to only either be acts of
lasciviousness or consummated rape, with no gradation of the attempted stage in between.

The Court also took the opportunity to further clarify the stages of commission of rape for pre-
puberty victims.

The Court held that “for child victims in the pre-puberty age, the genital contact threshold for a
finding of consummated rape through penile penetration is deemed already met once the
entirety of the prosecution evidence establishes a clear physical indication of the inevitability of
the minimum genital contact threshold as clarified here, if it were not for the physical
immaturity and underdevelopment of the minor victim’s vagina, which may include repeated
touching of the accused’s erect penis on the minor victim’s vagina and other indicative acts of
penetration.”

Noting the peculiar nature of testimonies of child-rape-victims, and taking into consideration
their inherent linguistic limitations, the Supreme Court also enjoined courts to exercise
circumspection in their appreciation of testimonies of child victims in rape cases, noting that the
following can aid the courts in their determination of the existence of penile penetration: (i)
when the victim testifies she felt pain in her genitals; (ii) when there is bleeding in the same; (iii)
when the labia minora was observed to be gaping or has redness, or otherwise discolored; (iv)
when the hymenal tags are no longer visible; or (v) when the sex organ of the victim has
sustained any other type of injury.

“Once the testimony of the victim and/or the above attendance circumstances reveal that the
threshold genital contact occurred, the courts have sufficient basis to find for consummation,”
the High Court held.
Finally, the Court held that set threshold of genital contact may also be applied by analogy to
acts of rape by sexual assault under Article 266-A paragraph 2, of the Revised Penal Code, such
that “a finding that the accused has penetrated the vulval cleft of the victim through the use of
any instrument or object warrants a factual finding of consummated rape by sexual assault.”

The Court concluded, “At the risk of testing its strength under the weight of its decisions, the
Court must remain honest, clear-sighted and unflinching, for to look away is violence.”

The Court also entreated Congress to re-examine the current inconsistency in the scale of
penalties in rape, sexual assault, acts of lasciviousness, and lascivious conduct so they may
“most accurately approximate and reflect the penalty that each crime truly merits.”

Applying the clarified threshold in the case of Agao, the Court found that Agao’s erect penis
touching AAA’s vulval cleft categorically shows that the minimum penile-vaginal contact
between the penis and the vulval cleft needed for a finding of consummate rape was present.

However, Agao should only be convicted of one charge of Statutory Rape, which occurred when
AAA was 10 years old. The other charge should be reduced to Simple Rape, as it happened when
AAA was 13 years old, ruled the Court.