GR 204061; (February, 2018) (Digest)
G.R. No. 204061 , February 5, 2018
EDMISAEL C. LUTAP, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent.
FACTS
Petitioner Edmisael Lutap was charged with Rape by Sexual Assault under Article 266-A(2) of the Revised Penal Code. The Information alleged that on April 27, 2004, in Quezon City, he willfully inserted his finger into the genital organ of AAA, a six-year-old minor, by means of force and intimidation. The prosecution evidence established that while AAA was watching television, Lutap, a family friend, touched her vagina with his middle finger. AAA’s younger brother, BBB, witnessed the act and reported it to their mother, DDD. Upon questioning, AAA revealed that Lutap had committed similar acts on previous occasions. The defense presented denial, claiming Lutap merely pacified a quarrel between the children.
The Regional Trial Court convicted Lutap of Rape by Sexual Assault, giving full credence to the testimonies of AAA and BBB, particularly BBB’s demonstration that Lutap’s finger was “inilulusot” (inserted) into AAA’s vagina. On appeal, the Court of Appeals modified the conviction. It found that the evidence only proved Lutap touched AAA’s vagina with his finger but did not establish penetration. Consequently, the CA held him guilty only of Attempted Rape.
ISSUE
Whether the Court of Appeals correctly convicted petitioner of Attempted Rape instead of the consummated crime of Rape by Sexual Assault.
RULING
The Supreme Court affirmed the CA’s ruling and upheld the conviction for Attempted Rape. The legal logic hinges on the essential element of penetration required for consummated rape under Article 266-A(2). For rape by sexual assault to be consummated, the law requires the insertion of the penis, or any instrument or object, into the genital or anal orifice of another person. The insertion, however slight, of a finger qualifies as the required penetration for consummated rape.
In this case, the Supreme Court meticulously reviewed the evidence. While the RTC interpreted BBB’s testimony and demonstration as indicative of insertion, the Supreme Court agreed with the CA’s factual finding that the act proven was merely touching or external contact. The testimony and demonstration, when considered in their entirety, did not conclusively establish that Lutap’s finger penetrated AAA’s labia or vaginal orifice. The prosecution thus failed to prove the element of penetration beyond reasonable doubt.
Since the acts performed—touching the victim’s vagina with a finger—constituted the commencement of the execution of rape by sexual assault but were stopped before penetration could be achieved, the crime did not proceed to the consummated stage. The overt acts were not mere preparatory but were already in the direct execution of the crime, yet were insufficient to accomplish it. Therefore, petitioner’s criminal liability is properly for the attempted stage of the felony. The penalty and damages imposed by the CA for Attempted Rape were sustained as being in accordance with law and jurisprudence.