female organ. 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 the 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." While
''the mere touching of the external genitalia by the penis capable of consummating
the sexual act is sufficient to constitute carnal knowledge,"[29] "the act of touching
should be understood here as inherently part of the entry of the penis into the
labias of the female organ and not mere touching alone of the mons pubis or the
pudemdum."[30] Indeed, the grazing of the victims' private organ caused pain, but it
cannot be presumed that carnal knowledge indeed took place by reason thereof. As
the Court held in People v. Brioso,[31] ''the Court is loath to convict an accused for
rape solely on the basis of the pain experienced by the victim as a result of efforts
to insert the penis into the vagina." Significantly, from their own declaration
following the public prosecutor's questioning, they suffered pains not because of
appellant's attempt to insert his penis but because of the grazing of their vagina.
Given the foregoing and since there is neither clear showing or direct proof of penile
penetration or that appellant's penis made contact with the labias of the victims,
which is an essential element of the crime of rape, we cannot sustain appellant's
conviction for the crin1e of rape in Criminal Case Nos. 07-CR-6765; 07-CR-6766;
07-CR-6768; 07-CR-6769 and 07-CR-6770.
However, appellant can be convicted of Acts of Lasciviousness under Article 336 of
the Revised Penal Code (RPC) in relation to Section 5 of Republic Act (RA) No.
7610,[32] which was the offense proved though he was charged with rape through
sexual intercourse in relation to RA 7610, applying the variance doctrine under
Section 4 in relation to Section 5 of Rule 120 of the Revised Rules of Criminal
Procedure.[33] The crime of Acts of Lasciviousness under Article 336 of the RPC in
relation to Section 5 of RA 7610, which was the offense proved is included in rape,
the offense charged.[34]
The essential elements of sexual abuse under Section 5(b) of RA 7610 are as
follows:
(1) The accused commits the act of sexual intercourse or lascivious conduct;
(2) The said act is performed with a child exploited in prostitution or subjected to
other sexual abuse; and,
(3) The child, whether male or female, is below 18 years of age[35]