included in rape, the offense charged. Consequently, the accused was sentenced to
suffer the penalty of reclusion perpetua.
In this case, for the crime of sexual assault, the lower courts sentenced accusedappellant to suffer an indeterminate penalty of four (4) years and two (2) months
of prision correccional, as minimum, to eight (8) years and one (1) day of prision
mayor, as maximum. This Court, however, modified such penalty, and deemed it
proper to impose the higher penalty of reclusion temporal in its medium period, to
reclusion perpetua as provided in R.A. No. 7610.
From the foregoing, it can be easily discerned that if the courts would not opt to
impose the higher penalty provided in R.A. No. 7610 in cases of rape by sexual
assault, wherein the victims are children, an accused who commits acts of
lasciviousness under Article 336 of the RPC, in relation to Section 5 (b), Article III
of R.A. 7610, suffers the more severe penalty of reclusion temporal in its medium
period, than the one who commits rape by sexual assault which is punishable by
prision mayor.
Finally, I maintain my position in People v. Caoili that the insertion of the finger into
the vagina constitutes rape through sexual intercourse and not rape by sexual
assault. Rape by sexual assault is the act of "inserting the penis into another
person's mouth or anal orifice, or any instrument or object, into the genital or anal
orifice of another person."[42] Instrument is defined as "utensil or implement."[43] On
the other hand, object is defined as "a discrete visible or tangible thing."[44] The
finger, however, is neither an instrument nor an object. Stripped to its most basic
definition, a finger is a body part. Consequently, applying the principle of expressio
unius est exclusio alterius which means that the express mention of one thing
excludes all others,[45] the insertion of the finger or any other body part into the
genital or anal orifice of another person could not be properly categorized as rape
by sexual assault. The basic difference between an instrument or object on the one
hand and the finger or any body part on the other is that on account of its
independent existence, the former, by itself, can be used in the dastardly act of
assaulting another person; whereas the latter owes its function to the fact that it is
attached to the body. For sure, a person would not go to the extent of cutting his
finger and then use the severed finger to sexually assault another person.
It is high time to revisit the archaic definition given to carnal knowledge, i.e., penile
penetration, and acknowledge that the same may be accomplished in various ways:
vaginal, oral, anal, and fingering. Intercourse means "physical sexual contact
between individuals that involves the genitalia of at least one person."[46] Further,
jurisprudence has consistently held that "the crux of carnal knowledge is sexual
bodily connection."[47] From the foregoing definitions, the act of inserting the finger
into the vagina already constitutes rape through sexual intercourse. Justice Marvic