minora of the pudendum constitutes consummated rape.
The pudendum or vulva is the collective term for the female genital organs that are
visible in the perineal area, e.g., mons pubis, labia majora, labia minora, the hymen,
the clitoris, the vaginal orifice, etc. The mons pubis is the rounded eminence that
becomes hairy after puberty, and is instantly visible within the surface. The next layer
is the labia majora or the outer lips of the female organ composed of the outer convex
surface and the inner surface. The skin of the outer convex surface is covered with hair
follicles and is pigmented, while the inner surface is a thin skin which does not have any
hair but has many sebaceous glands. Directly beneath the labia majora is the labia
minora. 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,
xxxx 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 either labia of the pudendum by the penis, there can be no
consummated rape; at most, it can only be attempted rape, if not acts of
lasciviousness. [Bold emphasis supplied]
It is noteworthy that in People v. Orita,19 the Court clarified that the ruling in People v.
Erihia20 whereby the offender was declared guilty of frustrated rape because of lack of
conclusive evidence of penetration of the genital organ of the offended party, was
a stray decision for not having been reiterated in subsequent cases. As the evolving
case law on rape stands, therefore, rape in its frustrated stage is a physical
impossibility, considering that the requisites of a frustrated felony under Article 6 of
the Revised Penal Code are that: (1) the offender has performed all the acts of
execution which would produce the felony; and (2) that the felony is not produced due
to causes independent of the perpetrator's will. Obviously, the offender attains his
purpose from the moment he has carnal knowledge of his victim, because from that
moment all the essential elements of the offense have been accomplished, leaving
nothing more to be done by him.21
Nonetheless, rape admits of an attempted stage. In this connection, the character of
the overt acts for purposes of the attempted stage has been explained in People v.
Lizada:22
An overt or external act is defined as some physical activity or deed, indicating the
intention to commit a particular crime, more than a mere planning or preparation,
which if carried out to its complete termination following its natural course, without
being frustrated by external obstacles nor by the spontaneous desistance of the
perpetrator, will logically and necessarily ripen into a concrete offense. The raison
d'etre for the law requiring a direct overt act is that, in a majority of cases, the
conduct of the accused consisting merely of acts of preparation has never
ceased to be equivocal; and this is necessarily so, irrespective of his declared
intent. It is that quality of being equivocal that must be lacking before the act
becomes one which may be said to be a commencement of the commission of
the crime, or an overt act or before any fragment of the crime itself has been
committed, and this is so for the reason that so long as the equivocal quality
remains, no one can say with certainty what the intent of the accused is. It is
necessary that the overt act should have been the ultimate step towards the