FACTS:

Petitioner Edmisael Lutap, A.K.A. “Egay”, frequently visits the house of AAA’s family, being the best friend of AAA’s father. Around 6:30 in the evening AAA, who was then only six (6) years old and her younger siblings, BBB and CCC, were watching television in their sala, together with petitioner, while their mother DDD was cooking dinner in the kitchen.

AAA was then wearing short pants and was sitting on the floor with her legs spread apart while watching television and playing with “text cards.” BBB, on the other hand, was seated on a chair beside CCC, some five steps away from AAA. Petitioner was seated on the sofa which was one foot away from AAA.

Petitioner then touched AAA’s vagina. AAA reacted by swaying off his hand.

BBB saw petitioner using his middle finger in touching AAA’s vagina. BBB said “Kuya Egay, bad iyan, wag mong kinikiliti ang pepe ni Ate.” BBB then went to where DDD was cooking and told her that petitioner is bad because he is tickling AAA’s vagina. DDD then called AAA, and asked her if it were true. AAA answered, “but I swayed his hand, Mama.” 

DDD asked AAA how many times have petitioner tickled her vagina and AAA answered, “many times in [petitioner’s] house” and that he also “let her go on the bed, remove her panty, open her legs and lick her vagina.”

As such, DDD confronted petitioner. Petitioner said that he was sorry.

Petitioner was charged with Rape under Article 266-A paragraph 2 in relation to Article 266-B of the RPC.

In defense, petitioner denied the accusations against him. 

The testimony of Melba Garcia, a Purok Leader, was also presented to the effect that she personally knows petitioner and that the latter enjoys a good reputation. DDD, on the other hand, was the subject of several complaints from the neighbors.

The RTC found petitioner guilty as charged.

On appeal, the CA ruled that there was no insertion of petitioner’s finger into AAA’s vagina as it was merely slightly touched. Hence, the petitioner can only be held liable for attempted rape.

His motion for reconsideration was denied. Hence, the instant petition.

ISSUE:

Whether or not the CA erred in convicting petitioner for the crime of attempted rape on the basis of the evidence thus presented.

RULING:

The petition is partly meritorious.

We agree with the CA’s ruling that the fact of insertion of petitioner’s finger into AAA’s sexual organ was not established beyond reasonable doubt to support petitioner’s conviction of rape by sexual assault. 

We also agree with the CA that there was sexual molestation by petitioner’s established act of touching AAA’s vagina. Be that as it may, the act of touching a female’s sexual organ, standing alone, is not equivalent to rape, not even an attempted one. At most, therefore, petitioner’s act of touching AAA’s sexual organ demonstrates his guilt for the crime of acts of lasciviousness, an offense subsumed in the charge of rape by sexual assault.

Rape, under Article 266-A of the Revised Penal Code, as amended by Republic Act No. 8353 or the “Anti-Rape Law of 1997” can be committed in two ways: 

Article 266-A paragraph 1 refers to rape through sexual intercourse, the central element of which is carnal knowledge which must be proven beyond reasonable doubt; and Article 266-A paragraph 2 refers to rape by sexual assault which must be attended by any of the circumstances enumerated in sub-paragraphs (a) to (d) of paragraph I.

People v. Mendoza 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.

What was established beyond reasonable doubt in this case was that petitioner touched, using his middle finger, AAA’s sexual organ which was then fully covered by a panty and a short pants. However, such is insufficient to hold petitioner liable for attempted rape by sexual assault. As above intimated, the mere touching of a female’s sexual organ, by itself, does not amount to rape nor does it suffice to convict for rape at its attempted stage.

Since there was neither an insertion nor an attempt to insert petitioner’s finger into AAA’s genitalia, petitioner can only be held guilty of the lesser crime of acts of lasciviousness following the variance doctrine enunciated under Section 4 in relation to Section 5 of Rule 120 of the Rules on Criminal Procedure. Acts of lasciviousness, the offense proved, is included in rape, the offense charged.

Pursuant to Article 336 of the RPC, acts of lasciviousness is consummated when the following essential elements are present: 

(a) the offender commits any act of lasciviousness or lewdness upon another person of either sex; and 

(b) the act of lasciviousness or lewdness is committed either 

(i) by using force or intimidation; or 

(ii) when the offended party is deprived of reason or is otherwise unconscious; or 

(iii) when the offended party is under 12 years of age. 

As thus used, lewd is defined as obscene, lustful, indecent, lecherous; it signifies that form of immorality that has relation to moral impurity; or that which is carried on a wanton manner. 

All of these elements are present in the instant case.