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ATTY. TOPACIO Hita po. COURT Sa hita ba niya hinawakan o sa pekpek niya? WITNESS Sa pepe po. xxx COURT Pero hindi masyadong idiniin? WITNESS Hindi po masyado.38 (Emphasis supplied) Thus, absent any showing that there was actual insertion of petitioner's finger into AAA's vagina, petitioner cannot be held liable for consummated rape by sexual assault. People v. Mendoza,39 explains that for a charge of rape by sexual assault with the use of one's fingers as the assaulting object, as in the instant case, to prosper, there should be evidence of at least the slightest penetration of the sexual organ and not merely a brush or a graze of its surface, being that rape by sexual assault requires that the assault be specifically done through the insertion of the assault object into the genital or anal orifices of the victim.40 Applying by analogy the treatment of "touching" and "entering" m penile rape as explained in People v. Campuhan,41 Mendoza states: The touching of a female's sexual organ, standing alone, is not equivalent to rape, not even an attempted one. With regard to penile rape, People v. Campuhan explains: xxx Thus, touching when applied to rape cases does not simply mean mere epidermal contact, stroking or grazing of organs, a slight brush or a scrape of the penis on the external layer of the victim's vagina, or the mons pubis, as in this case. There must be sufficient and convincing proof that the penis indeed touched the labias or slid into the female organ, and not merely stroked the external surface thereof, for an accused to be convicted of consummated rape. xxx xxx 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. Thus, a grazing of the surface of the female organ or touching the mans 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. (Italics in the original.)

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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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