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(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 twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present. 35 Article 266-A. Rape, When and How Committed. Rape is committed – xxxx 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. 36 See People v. Caoili, G.R. No. 196342, August 8, 2017. 37 Rollo, p. 45. 38 Id. at 41-45. 39 People v. Mendoza, supra note 32. 40 Id. at 1211-1212. 41 385 Phil. 912, 920-922 (2000). People v. Mendoza, supra note 32, id. at 1211. 42 Id. See also, People v. Garcia, 695 Phil. 576 (2012). 43 745 Phil. 54, 71-72 (2014). 44 665 Phil. 750, 769 (2011). 45 Id. SEC. 4. Judgment in case of variance between allegation and proof.-When there is variance between the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved. 46 SEC. 5. When an offense includes or is included in another.-An offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitute the latter. And an offense charged is necessarily included in the offense proved, when the essential ingredients of the former constitute or form part of those constituting the latter. 47

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Lutap v. People

Jurisprudence

Case number: G.R. No. 204061

Division: PH Supreme Court First Division

Date of decision: Feb 5, 2018

Year of decision: 2018

GBV Case Type

Acts of lasciviousness
Child Abuse (R.A. 7610)
Minor

Nature of the case: A six years old girl who belongs to the sector of Girl-Children was forced, threatened and intimated by her father's best friend who frequently visits their house by means of touching the victim's private part while playing text cards in the latter's house in Quezon City. The accused was convicted for the crime of Acts of Lasciviousness under Article 336 of the RPC in relation to Section 5 of R.A. 7610 contrary to the ruling of the Court of Appeals that the accused committed attempted rape as the Supreme Court ruled that absent any showing that there was actual insertion of a finger into the victim's private part, there can be no rape or even an attempted one.

Summary of outcome

The accused is convicted and is sentenced to suffer the following penalties:

Indeterminate sentence of 12 years and 1 day of reclusion temporal in its minimum period as mimimum, to 15 years, 6 months and 20 days of reclusion temporal in its medium period as its maximum; and
Pay the victim moral damages, exemplary damages, a fine in P 15,000.00 each and civil indemnity in the amount of P 20,000.00 and 6% interest per annum from the finality of the judgment until fully paid on the damages and civil indemnity.

Observatory: Gender-Based Violence

Ponente: TIJAM, J.:

Long title: EDMISAEL C. LUTAP, PETITIONER, V. PEOPLE OF THE PHILIPPINES, RESPONDENT.

Geolocation 1

Latitude: 14.646016

Longitude: 121.049656

: Geolocation 1

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Lutap v. People

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