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SC Uses Clear, Straightforward Language in Discussion of Rape to Ensure Accuracy in Court Judgments

March 31, 2023

“The safety and dignity of all persons are worth the disconcerting conversation that must be had, if [the Court] is to dispense with honest justice.”

Thus, held the Supreme Court En Banc in a landmark ruling where, using straightforward language, it clarified when the crime of rape through penile penetration is considered consummated.

In a 40-page Decision penned by Justice Alfredo Benjamin S. Caguioa, the Court affirmed the Valenzuela Regional Trial Court’s (RTC) conviction of Efren Agao of two counts of Statutory Rape, as also upheld by the Court of Appeals (CA). The Supreme Court, however, modified the lower courts’ rulings, and found Agao guilty of one count of Statutory Rape and one count of Simple Rape.

In 2014, Agao was charged with two counts of Statutory Rape of minor AAA, the daughter of Agao’s live-in partner, BBB. Agao was convicted by Branch 172, Valenzuela City RTC, which ruled that while Agao’s penis only merely touched the labia of AAA, the crime of rape was nevertheless consummated following the 2014 case of People v. Besmonte, which held that carnal knowledge, as an element of rape, does not require full penetration of the female organ.

On appeal to the CA, Agao’s conviction was affirmed, prompting him to bring his case to the Supreme Court.

In ruling against Agao, the Supreme Court stressed the need to use unambiguous language in the resolution of rape cases.

“The Court now recognizes that there is perhaps no other way to reconcile and refine the current jurisprudence on rape than to peel away the euphemistic shrouds that have been resorted to so far, and instead inform case law with the exact anatomical situs of the pertinent body parts referred to in jurisprudence, which, unlike other matters that attend the crime of rape, are uncolored, self-evident and inarguable in their precision.”

The Court noted that the use in jurisprudence on rape cases of “euphemistic but largely inaccurate descriptions have only so far convoluted matters regarding the act of rape that should have been kept unambiguous and definitive.”

The Court added that “a clarification is overdue given that an error in the appreciation of the exact anatomical situs of the genital contact amounts to the justice system’s complicity in the improper imposition of penalties.”

The Court lamented that the lack of clarification has resulted in cases where, “despite clear testimony of child victims of repeated attempts and degrees of penetration of an erect penis, the accused therein were convicted merely of attempted rape precisely because of the absence of the clear operative definition of penile penetration that qualifies as consummated rape, especially in cases of younger victims, in view of the physical natural resistance of their underdeveloped anatomy.”

“The apparent avoidance in the straightforwardness or clarity [in jurisprudence on rape cases] now presents the Court with the need to reiterate and clarify for the bench and the bar, the biologically accurate definition of what constitutes the slightest penile contact which consummates rape through penile penetration,” stressed the Court.

The Court chose to ensure that “no obscurity either unduly benefits the accused (in that the accused is convicted for attempted rape when in fact the crime was consummated) or unduly burdens the victims with the heartbreaking task of jumping through hoops of propounded questions in order to try and prove the genital assault required which jurisprudence itself has not so far made clear.”

Thus, in laying down the operative definition of the minimum threshold for a finding of consummated rape, the Court proceeded to a brief descriptive discussion, with illustrations, of the parts of the external female genitalia, including “a clear indication of the situs of the pertinent parts, in order to categorically delineate for the bench and the bar which physical threshold, when crossed, constitutes rape in the consummated stage.”

The Court then concluded that “mere introduction, however slight, into the cleft of the labia majora by a penis that is capable of penetration, regardless of whether such penile penetration is thereafter fully achieved, consummates the crime of rape.

Reconciling the diverging rulings in existing jurisprudence, the Court clarified that “mere touch” of the penis on the labia majora legally contemplates not mere surface touch or skin contact, but the slightest penetration of the vulval or pudendal cleft, however minimum in degree.”

The Court stressed that such clarification is necessary, as otherwise any nature and degree of touch of a penis of the female genitalia can be considered consummated rape, effectively resulting in all sexual assaults involving a penis and the vulva to only either be acts of lasciviousness or consummated rape, with no gradation of the attempted stage in between.

The Court also took the opportunity to further clarify the stages of commission of rape for pre-puberty victims.

The Court held that “for child victims in the pre-puberty age, the genital contact threshold for a finding of consummated rape through penile penetration is deemed already met once the entirety of the prosecution evidence establishes a clear physical indication of the inevitability of the minimum genital contact threshold as clarified here, if it were not for the physical immaturity and underdevelopment of the minor victim’s vagina, which may include repeated touching of the accused’s erect penis on the minor victim’s vagina and other indicative acts of penetration.”

Noting the peculiar nature of testimonies of child-rape-victims, and taking into consideration their inherent linguistic limitations, the Supreme Court also enjoined courts to exercise circumspection in their appreciation of testimonies of child victims in rape cases, noting that the following can aid the courts in their determination of the existence of penile penetration: (i) when the victim testifies she felt pain in her genitals; (ii) when there is bleeding in the same; (iii) when the labia minora was observed to be gaping or has redness, or otherwise discolored; (iv) when the hymenal tags are no longer visible; or (v) when the sex organ of the victim has sustained any other type of injury.

“Once the testimony of the victim and/or the above attendance circumstances reveal that the threshold genital contact occurred, the courts have sufficient basis to find for consummation,” the High Court held.

Finally, the Court held that set threshold of genital contact may also be applied by analogy to acts of rape by sexual assault under Article 266-A paragraph 2, of the Revised Penal Code, such that “a finding that the accused has penetrated the vulval cleft of the victim through the use of any instrument or object warrants a factual finding of consummated rape by sexual assault.”

The Court concluded, “At the risk of testing its strength under the weight of its decisions, the Court must remain honest, clear-sighted and unflinching, for to look away is violence.”

The Court also entreated Congress to re-examine the current inconsistency in the scale of penalties in rape, sexual assault, acts of lasciviousness, and lascivious conduct so they may “most accurately approximate and reflect the penalty that each crime truly merits.”

Applying the clarified threshold in the case of Agao, the Court found that Agao’s erect penis touching AAA’s vulval cleft categorically shows that the minimum penile-vaginal contact between the penis and the vulval cleft needed for a finding of consummate rape was present.

However, Agao should only be convicted of one charge of Statutory Rape, which occurred when AAA was 10 years old. The other charge should be reduced to Simple Rape, as it happened when AAA was 13 years old, ruled the Court.

FULL TEXT OF G.R. No. 248049 dated October 4, 2022 at: https://sc.judiciary.gov.ph/248049-people-of-the-philippines-vs-efren-agao-y-anonuevo/

FULL TEXT OF the Concurring Opinion of Chief Justice Alexander G. Gesmundo at: https://sc.judiciary.gov.ph/248049-concurring-opinion-chief-justice-alexander-g-gesmundo/

FULL TEXT OF the Dissenting and Concurring Opinion of Senior Associate Justice Marvic M.V.F. Leonen at: https://sc.judiciary.gov.ph/248049-dissenting-and-concurring-opinion-justice-marvic-m-v-f-leonen/

FULL TEXT OF the Separate Concurring Opinion of Justice Maria Filomena D. Singh at: https://sc.judiciary.gov.ph/248049-separate-concurring-opinion-justice-filomena-d-singh/

 (Courtesy of the Supreme Court Public Information Office)

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The Supreme Court Under
the 1987 Constitution

As in the 1935 and 1973 Constitutions, the 1987 Constitution provides that “[t]he judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.” (Art. VII, Sec. 1). The exercise of judicial power is shared by the Supreme Court with all lower courts, but it is only the Supreme Court’s decisions that are vested with precedential value or doctrinal authority, as its interpretations of the Constitution and the laws are final and beyond review by any other branch of government.

Unlike the 1935 and 1973 Constitutions, however, the 1987 Constitution defines the concept of judicial power. Under paragraph 2 of Section 1, Article VIII, “judicial power” includes not only the “duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable” but also “to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.” This latter provision dilutes the effectivity of the “political question” doctrine which places specific questions best submitted to the political wisdom of the people beyond the review of the courts.

Building on previous experiences under former Constitutions, the 1987 Constitution provides for specific safeguards to ensure the independence of the Judiciary. These are found in the following provisions:

    • The grant to the Judiciary of fiscal autonomy. “Appropriations for the Judiciary may not be reduced by the legislature below the amount appropriated for the previous year, and, after approval, shall be automatically and regularly released.” (Art. VIII, Sec. 3).
    • The grant to the Chief Justice of authority to augment any item in the general appropriation law for the Judiciary from savings in other items of said appropriation as authorized by law. (Art. VI, Sec. 25[5])
    • The removal from Congress of the power to deprive the Supreme Court of its jurisdiction over cases enumerated in Section 5 of Article VIII.
    • The grant to the Court of the power to appoint all officials and employees of the Judiciary in accordance with the Civil Service Law (Art. VIII, Sec. 5 [6])
    • The removal from the Commission of Appointments of the power to confirm appointments of justices and judges (Art. VIII, Sec. 8)
    • The removal from Congress of the power to reduce the compensation or salaries of the Justices and judges during their continuance in office. (Art. VIII, Sec. 10)
    • The prohibition against the removal of judges through legislative reorganization by providing that “(n)o law shall be passed reorganizing the Judiciary when it undermines the security of tenure of its members. (Art. VIII, Sec. 2)
    • The grant of sole authority to the Supreme Court to order the temporary detail of judges. (Art. VIII, Sec. 5[3])
    • The grant of sole authority to the Supreme Court to promulgate rules of procedure for the courts. (Art. VIII, Sec. 5[5])
    • The prohibition against designating members of the Judiciary to any agency performing quasi-judicial or administrative function. (Art. VIII, Sec. 12)
    • The grant of administrative supervision over the lower courts and its personnel in the Supreme Court. (Art. VIII, Sec. 6)

The Supreme Court under the present Constitution is composed of a Chief Justice and 14 Associate Justices. The members of the Court are appointed by the President from a list, prepared by the Judicial and Bar Council, of at least three nominees for every vacancy. This new process is intended to “de-politicize” the courts of justice, ensure the choice of competent judges, and fill existing vacancies without undue delay.


The Supreme Court Under
the Revolutionary Government

Shortly after assuming office as the seventh President of the Republic of the Philippines after the successful People Power Revolution, then President Corazon C. Aquino declared the existence of a revolutionary government under Proclamation No. 1 dated February 25, 1986. Among the more significant portions of this Proclamation was an instruction for “all appointive officials to submit their courtesy resignations beginning with the members of the Supreme Court.” The call was unprecedented, considering the separation of powers that the previous Constitutions had always ordained, but understandable considering the revolutionary nature of the post-People Power government. Heeding the call, the members of the Judiciary—from the Supreme Court to the Municipal Circuit Courts—placed their offices at the disposal of the President and submitted their resignations. President Corazon C, Aquino proceeded to reorganize the entire Court, appointing all 15 members.

On March 25, 1986, President Corazon Aquino, through Proclamation No. 3, also abolished the 1973 Constitution and put in place a Provisional “Freedom” Constitution. Under Article I, Section 2 of the Freedom Constitution, the provisions of the 1973 Constitution on the judiciary were adopted insofar as they were not inconsistent with Proclamation No. 3.

Article V of Proclamation No. 3 provided for the convening of a Constitutional Commission composed of 50 appointive members to draft a new constitution; this would be implemented by Proclamation No. 9. Under the leadership of retired SC Justice Cecilia Muñoz Palma as its President, the Constitutional Commission of 1986 submitted its output of to the people for ratification.

By a vote of 76.30%, the Filipino people then ratified the Constitution submitted to them in a national plebiscite on February 2, 1987.

President Aquino, other civilian officials, and members of the Armed Forces of the Philippines, upon the announcement of the ratification of the 1987 Constitution, swore allegiance to the new charter on February 11, 1987 thereby putting an end to the revolutionary government.


The Supreme Court Under
the 1973 Constitution

The declaration of Martial Law through Proclamation No. 1081 by former President Ferdinand E, Marcos in 1972 brought about the transition from the 1935 Constitution to the 1973 Constitution. This transition had implications on the Court’s composition and functions.

This period also brought in many legal issues of transcendental importance and consequence. Among these were the legality of the ratification of a new Constitution, the assumption of the totality of government authority by President Marcos, and the power to review the factual basis for a declaration of Martial Law by the Chief Executive, among others. Also writ large during this period was the relationship between the Court and the Chief Executive who, under Amendment No. 6 to the 1973 Constitution, had assumed legislative powers even while an elected legislative body continued to function.

The 1973 Constitution increased the number of the members of the Supreme Court from 11 to 15, with a Chief Justice and 14 Associate Justices. The Justices of the Court were appointed by the President alone, without the consent, approval, or recommendation of any other body or officials.


The Supreme Court of
the Second Republic

Following liberation from the Japanese occupation at the end of the Second World War and the Philippines’ subsequent independence from the United States, Republic Act No. 296 or the Judiciary Act of 1948 was enacted. This law grouped together the cases over which the Supreme Court could exercise exclusive jurisdiction for review on appeal, certiorari, or writ of error.


The Supreme Court During
the Commonwealth

Following the ratification of the 1935 Philippine Constitution in a plebiscite, the principle of separation of powers was adopted, not by express and specific provision to that effect, but by actual division of powers of the government—executive, legislative, and judicial—in different articles of the 1935 Constitution.

As in the United States, the judicial power was vested by the 1935 Constitution “in one Supreme Court and in such inferior courts as may be established by law.” It devolved on the Judiciary to determine whether the acts of the other two departments were in harmony with the fundamental law.

The Court during the Commonwealth was composed of “a Chief Justice and ten Associate Justices, and may sit en banc or in two divisions, unless otherwise provided by law.”


The Establishment of
the Supreme Court of the Philippines

On June 11, 1901, the Second Philippine Commission passed Act No. 136 entitled “An Act Providing for the Organization of Courts in the Philippine Islands” formally establishing the Supreme Court of the Philippine Islands and creating Courts of First Instance and Justices of the Peace Courts throughout the land. The judicial organization established by the Act was conceived by the American lawyers in the Philippine Commission, with its basic structures patterned after similar organizations in the United States.

The Supreme Court created under the Act was composed of a Chief Justice and six Judges. Five members of the Court could form a quorum, and the concurrence of at least four members was necessary to pronounce a judgment.

Act No. 136 abolished the Audiencia established under General Order No. 20 and declared that the Supreme Court created by the Act be substituted in its place. This effectively severed any nexus between the present Supreme Court and the Audiencia.

The Anglo-American legal system under which the Supreme Court of the Philippine Islands was expected to operate was entirely different from the old Spanish system that Filipinos were familiar with. Adjustments had to be made; hence, the decisions of the Supreme Court during its early years reflected a blend of both the Anglo-American and Spanish systems. The jurisprudence was a gentle transition from the old order to the new.


The Judicial System During
the American Occupation

After Spain’s defeat in the Spanish-American War in the late 1890s, The subsequent occupation by the Americans of the Philippine Islands paved the way for considerable changes in the control, disposition, and governance of the Islands.

The judicial system established during the regime of the military government functioned as an instrument of the executive—not of the judiciary—as an independent and separate branch of government. Secretary of State John Hay, on May 12, 1899, proposed a plan for a colonial government of the Philippine Islands which would give Filipinos the largest measure of self-government. The plan contemplated an independent judiciary manned by judges chosen from qualified locals and Americans.

On May 29, 1899, General Elwell Stephen Otis, Military Governor for the Philippines, issued General Order No. 20, reestablishing the Audiencia Teritorial de Manila which was to apply Spanish laws and jurisprudence recognized by the American military governor as continuing in force.

The Audiencia was composed of a presiding officer and eight members organized into two divisions: the sala de lo civil or the civil branch, and the sala de lo criminal or the criminal branch.

It was General Otis himself who personally selected the first appointees to the Audiencia. Cayetano L. Arellano was appointed President (equivalent to Chief Justice) of the Court, with Manuel Araullo as president of the sala de lo civil and Raymundo Melliza as president of the salo de lo criminal. Gregorio Araneta and Lt. Col. E.H. Crowder were appointed associate justices of the civil branch while Ambrosio Rianzares, Julio Llorente, Major R.W. Young, and Captain W.E. Brikhimer were designated associate justices of the criminal branch. Thus, the reestablished Audiencia became the first agency of the new insular government where Filipinos were appointed side by side with Americans.


The Judicial System Under
the Spanish Regime

During the early Spanish occupation, King Philip II established the Real Audiencia de Manila which was given not only judicial but legislative, executive, advisory, and administrative functions as well. Composed of the incumbent governor general as the presidente (presiding officer), four oidores (equivalent to associate justices), an asesor (legal adviser), an alguacil mayor (chief constable), among other officials, the Real Audiencia de Manila was both a trial and appellate court. It had exclusive original, concurrent original, and exclusive appellate jurisdictions.

Initially, the Audiencia was given a non-judicial role in the colonial administration, to deal with unforeseen problems within the territory that arose from time to time—it was given the power to supervise certain phases of ecclesiastical affairs as well as regulatory functions, such as fixing of prices at which merchants could sell their commodities. Likewise, the Audiencia had executive functions, like the allotment of lands to the settlers of newly established pueblos. However, by 1861, the Audiencia had ceased to perform these executive and administrative functions and had been restricted to the administration of justice.

When the Audiencia Territorial de Cebu was established in 1886, the name of the Real Audiencia de Manila was changed to Audiencia Territorial de Manila.


The Judicial System of the
Pre-Colonization Filipinos

When the Spanish colonizers first arrived in the Philippine archipelago, they found the indigenous Filipinos without any written laws. The laws enforced were mainly derived from customs, usages, and tradition. These laws were believed to be God-given and were orally transmitted from generation to generation.

A remarkable feature of these customs and traditions was that they were found to be very similar to one another notwithstanding that they were observed in widely dispersed islands of the archipelago. There were no judges and lawyers who were trained formally in the law, although there were elders who devoted time to the study of the customs, usages, and traditions of their tribes to qualify them as consultants or advisers on these matters.

The unit of government of the indigenous Filipinos was the barangay, which was a family-based community of 30 to 100 families, occupying a pook (“locality” or “area”) headed by a chieftain called datu who exercised all functions of government—executive, legislative, and judicial—a barangay was not only a political but a social and an economic organization. In the exercise of his judicial authority, the datu acted as a judge (hukom) in settling disputes and deciding cases in his barangay.