G.R. No. 144976 ; March 11, 2004
PEOPLE OF THE PHILIPPINES, appellee, vs. JOEL ALIBUYOG Y BULALA, appellant.

FACTS

On the night of May 5, 1999, in Davao City, appellant Joel Alibuyog, then 20 years old, took the 7-year-old victim, Jocel Madeloso, on a bicycle ride. Under the pretext of this ride, he brought her to a dark, grassy area. There, he kissed her, undressed her, removed her shorts and underwear, and lay on top of her, making push and pull movements. The victim’s mother, Juveniana, was alerted by a playmate and immediately searched for her daughter. Upon hearing her mother’s calls, the victim freed herself and ran to her, crying, and narrated the incident.
The victim was medically examined the following day. The findings showed her hymen was intact, with a small orifice, and the semenalysis was negative for spermatozoa. The examining physician, Dr. Samuel Cruz, testified that an intact hymen does not preclude partial penetration by a penis, provided it does not exceed the diameter of the hymenal orifice, which in this case was 0.8 cm. The prosecution presented these findings alongside the testimonies of the victim and her mother.

ISSUE

Whether the crime committed was consummated rape or only attempted rape.

RULING

The Supreme Court modified the trial court’s decision and found appellant guilty of ATTEMPTED RAPE only. The legal logic hinges on the distinction between consummation and attempt. For rape to be consummated under Article 266-A of the Revised Penal Code, there must be proof of the entry of the male organ into the female genitalia (carnal knowledge). The victim’s own testimony was crucial: she stated that while appellant made push and pull movements on top of her, his pants were still on and his organ only touched, but did not penetrate, her vagina. This testimony was consistent with the medical finding of an intact hymen.
The Court applied the elements of an attempted felony: the offender commences the commission directly by overt acts; does not perform all acts of execution; and the non-performance is due to a cause other than his own spontaneous desistance. Here, appellant commenced the rape by undressing the victim and positioning himself, but he did not perform the ultimate act of penetration. His acts were interrupted not by his own will but by the timely arrival of the victim’s mother, whose calls enabled the victim to escape. Thus, all acts of execution for consummated rape were not completed. Consequently, appellant is liable only for attempted rape, which is two degrees lower than the penalty for consummated statutory rape. The Court sentenced him to an indeterminate penalty of 6 years of prision correccional as minimum to 10 years of prision mayor as maximum, and modified the awards of civil indemnity to P30,000 and moral damages to P25,000.