EN BANC
G.R. No. 129433
March 30, 2000
PEOPLE OF THE PHILIPPINES, plaintiff,
vs.
PRIMO CAMPUHAN Y BELLO accused.
BELLOSILLO, J.:
On 3 April 1990 this Court in People v. Orita 1 finally did
away with frustrated rape 2 and allowed only attempted rape and consummated
rape to remain in our statute books. The instant case lurks at the threshold of
another emasculation of the stages of execution of rape by considering almost
every attempt at sexual violation of a woman as consummated rape, that is, if
the contrary view were to be adopted. The danger there is that that concept may
send the wrong signal to every roaming lothario, whenever the opportunity bares
itself, to better intrude with climactic gusto, sans any restraint, since after
all any attempted fornication would be considered consummated rape and punished
as such. A mere strafing of the citadel of passion would then be considered a
deadly fait accompli, which is absurd.
In Orita we held that rape was consummated from the moment
the offender had carnal knowledge of the victim since by it he attained his
objective. All the elements of the offense were already present and nothing
more was left for the offender to do, having performed all the acts necessary
to produce the crime and accomplish it. We ruled then that perfect penetration
was not essential; any penetration of the female organ by the male organ,
however slight, was sufficient. The Court further held that entry of the labia
or lips of the female organ, even without rupture of the hymen or laceration of
the vagina, was sufficient to warrant conviction for consummated rape. We
distinguished consummated rape from attempted rape where there was no
penetration of the female organ because not all acts of execution were
performed as the offender merely commenced the commission of a felony directly
by overt acts. 3 The inference that may be derived therefrom is that complete
or full penetration of the vagina is not required for rape to be consummated.
Any penetration, in whatever degree, is enough to raise the crime to its
consummated stage.
But the Court in Orita clarified the concept of penetration
in rape by requiring entry into the labia or lips of the female organ, even if
there be no rupture of the hymen or laceration of the vagina, to warrant a
conviction for consummated rape. While the entry of the penis into the lips of
the female organ was considered synonymous with mere touching of the external
genitalia, e.g., labia majora, labia minora, etc.,4 the crucial doctrinal
bottom line is that touching must be inextricably viewed in light of, in
relation to, or as an essential part of, the process of penile penetration, and
not just mere touching in the ordinary sense. In other words, the touching must
be tacked to the penetration itself. The importance of the requirement of
penetration, however slight, cannot be gainsaid because where entry into the
labia or the lips of the female genitalia has not been established, the crime
committed amounts merely to attempted rape.
Verily, this should be the indicium of the Court in
determining whether rape has been committed either in its attempted or in its
consummated stage; otherwise, no substantial distinction would exist between
the two, despite the fact that penalty-wise, this distinction, threadbare as it
may seem, irrevocably spells the difference between life and death for the
accused — a reclusive life that is not even perpetua but only temporal on one
hand, and the ultimate extermination of life on the other. And, arguing on
another level, if the case at bar cannot be deemed attempted but consummated
rape, what then would constitute attempted rape? Must our field of choice be
thus limited only to consummated rape and acts of lasciviousness since
attempted rape would no longer be possible in light of the view of those who
disagree with this ponencia?
On 27 May 1997 Primo Campuhan y Bello was found guilty of statutory rape and sentenced
by the court a quo to the extreme penalty of death, 5 hence this case
before us on automatic
review under Art. 335 of the Revised Penal Code as amended by RA 7659. 6
As may be culled from the evidence on record, on 25 April 1996, at around 4
o'clock in the afternoon, Ma. Corazon P. Pamintuan, mother of four (4)-year old
Crysthel Pamintuan, went down from the second floor of their house to prepare
Milo chocolate drinks for her two (2) children. At the ground floor she met
Primo Campuhan who was then busy filling small plastic bags with water to be
frozen into ice in the freezer located at the second floor. Primo was a helper
of Conrado Plata Jr., brother of Corazon. As Corazon was busy preparing the
drinks, she heard one of her daughters cry, "Ayo'ko, ayo'ko!"
7 prompting Corazon to
rush upstairs. Thereupon, she saw Primo Campuhan inside her children's room
kneeling before Crysthel whose pajamas or "jogging pants" and panty
were already removed, while his short pants were down to his knees.
According to Corazon, Primo was forcing his penis into
Crysthel's vagina. Horrified,
she cursed the accused, "P - t - ng ina mo, anak ko iyan!" and boxed
him several times. He evaded her blows and pulled up his pants. He pushed
Corazon aside when she tried to block his path. Corazon then ran out and
shouted for help thus prompting her brother, a cousin and an uncle who were
living within their compound, to chase the accused. 8 Seconds later, Primo was
apprehended by those who answered Corazon's call for help. They held the
accused at the back of their compound until they were advised by their
neighbors to call the barangay officials instead of detaining him for his
misdeed. Physical examination of the victim yielded negative results. No
evident sign of extra-genital physical injury was noted by the medico-legal
officer on Crysthel's body as her hymen was intact and its orifice was only 0.5
cm. in diameter.
Primo
Campuhan had only himself for a witness in his defense. He maintained
his innocence and assailed the charge as a mere scheme of Crysthel's mother who
allegedly harbored ill will against him for his refusal to run an errand for
her. 9 He asserted that in truth Crysthel was in a playing mood and wanted to ride on his back when she
suddenly pulled him down causing both of them to fall down on the floor.
It was in this fallen position that Corazon chanced upon them and became hysterical.
Corazon slapped him and accused him of raping her child. He got mad but
restrained himself from hitting back when he realized she was a woman. Corazon
called for help from her brothers to stop him as he ran down from the second
floor.
Vicente, Corazon's brother, timely responded to her call for
help and accosted Primo. Vicente punched him and threatened to kill him. Upon
hearing the threat, Primo immediately ran towards the house of Conrado Plata
but Vicente followed him there. Primo pleaded for a chance to explain as he
reasoned out that the accusation was not true. But Vicente kicked him instead.
When Primo saw Vicente holding a piece of lead pipe, Primo raised his hands and
turned his back to avoid the blow. At this moment, the relatives and neighbors
of Vicente prevailed upon him to take Primo to the barangay hall instead, and
not to maul or possibly kill him.
Although Primo Campuhan insisted on his innocence, the trial court on 27 May
1997 found him guilty of
statutory rape, sentenced him to the extreme penalty of death, and
ordered him to pay his victim P50,000.00 for moral damages, P25,000.00 for
exemplary damages, and the costs.
The accused Primo Campuhan seriously assails the credibility
of Ma. Corazon Pamintuan. He argues that her narration should not be given any
weight or credence since it was punctured with implausible statements and
improbabilities so inconsistent with human nature and experience. He claims
that it was truly inconceivable for him to commit the rape considering that Crysthel's
younger sister was also in the room playing while Corazon was just downstairs
preparing Milo drinks for her daughters. Their presence alone as possible
eyewitnesses and the fact that the episode happened within the family compound
where a call for assistance could easily be heard and responded to, would have
been enough to deter him from committing the crime. Besides, the door of the
room was wide open for anybody to see what could be taking place inside. Primo
insists that it was almost inconceivable that Corazon could give such a vivid
description of the alleged sexual contact when from where she stood she could
not have possibly seen the alleged touching of the sexual organs of the accused
and his victim. He asserts that the absence of any external signs of physical
injuries or of penetration of Crysthel's private parts more than bolsters his
innocence.
In convicting the accused, the trial court relied quite heavily on the testimony
of Corazon that she saw Primo with his short pants down to his knees
kneeling before Crysthel whose pajamas and panty were supposedly "already
removed" and that Primo was "forcing his penis into Crysthel's
vagina." The gravamen of the offense of statutory rape is carnal knowledge
of a woman below twelve (12), as provided in Art. 335, par. (3), of the Revised
Penal Code. Crysthel was only four (4) years old when sexually molested, thus
raising the penalty, from reclusion perpetua to death, to the single
indivisible penalty of death under RA 7659, Sec. 11, the offended party being
below seven (7) years old. We have said often enough that in concluding that
carnal knowledge took place, full penetration of the vaginal orifice is not an
essential ingredient, nor is the rupture of the hymen necessary; the mere
touching of the external genitalia by the penis capable of consummating the
sexual act is sufficient to constitute carnal knowledge. 10 But 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 pudendum.
In People
v. De la Peña 11 we clarified that the decisions finding a case for rape
even if the attacker's penis merely touched the external portions of the female
genitalia were made in the context of the presence or existence of an erect
penis capable of full penetration. Where the accused failed to achieve an
erection, had a limp or flaccid penis, or an oversized penis which could not
fit into the victim's vagina, the Court nonetheless held that rape was
consummated on the basis of the victim's testimony that the accused repeatedly
tried, but in vain, to insert his penis into her vagina and in all likelihood
reached the labia of her pudendum as the victim felt his organ on the lips of
her vulva, 12 or that the penis of the accused touched the middle part of her
vagina. 13 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. 14 As the labias, which are required to be "touched" by the
penis, are by their natural situs or location beneath the mons pubis or the
vaginal surface, to touch them with the penis is to attain some degree of
penetration beneath the surface, hence, the conclusion that touching the labia
majora or the labia minora of the pudendum constitutes consummated rape.
The pudendum or vulva is the collective term for the female
genital organs that are visible in the perineal area, e.g., mons pubis, labia
majora, labia minora, the hymen, the clitoris, the vaginal orifice, etc. The
mons pubis is the rounded eminence that becomes hairy after puberty, and is
instantly visible within the surface. The next layer is the labia majora or the
outer lips of the female organ composed of the outer convex surface and the
inner surface. The skin of the outer convex surface is covered with hair
follicles and is pigmented, while the inner surface is a thin skin which does
not have any hair but has many sebaceous glands. Directly beneath the labia
majora is the labia minora. 15 Jurisprudence dictates that the labia majora must be entered for
rape to be consummated, 16 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 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 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.
Judicial depiction of consummated rape has not been confined
to the oft-quoted "touching of the female organ," 17 but has also
progressed into being described as "the introduction of the male organ
into the labia of the pudendum," 18 or "the bombardment of the
drawbridge." 19 But, to our mild, the case at bar merely constitutes a
"shelling of the castle of orgasmic potency," or as earlier stated, a
"strafing of the citadel of passion.
A review of the records clearly discloses that the
prosecution utterly failed to discharge its onus of proving that Primo's penis
was able to penetrate Crysthel's vagina however slight. Even if we grant
arguendo that Corazon witnessed Primo in the act of sexually molesting her
daughter, we seriously doubt the veracity of her claim that she saw the
inter-genital contact between Primo and Crysthel. When asked what she saw upon
entering her children's room Corazon plunged into saying that she saw Primo
poking his penis on the vagina of Crysthel without explaining her relative
position to them as to enable her to see clearly and sufficiently, in
automotive lingo, the contact point. It should be recalled that when Corazon
chanced upon Primo and Crysthel, the former was allegedly in a kneeling
position, which Corazon described thus:
Q: How was Primo holding your daughter?
A: (The witness is demonstrating in such a way that the
chest of the accused is pinning down the victim, while his right hand is
holding his penis and his left hand is spreading the legs of the victim).
It can reasonably be drawn from the foregoing narration that
Primo's kneeling position
rendered an unbridled observation impossible. Not even a vantage point
from the side of the accused and the victim would have provided Corazon an
unobstructed view of Primo's penis supposedly reaching Crysthel's external
genitalia, i.e., labia majora, labia minora, hymen, clitoris, etc., since the
legs and arms of Primo would have hidden his movements from Corazon's sight,
not to discount the fact that Primo's right hand was allegedly holding his
penis thereby blocking it from Corazon's view. It is the burden of the
prosecution to establish how Corazon could have seen the sexual contact and to
shove her account into the permissive sphere of credibility. It is not enough
that she claims that she saw what was done to her daughter. It is required that
her claim be properly demonstrated to inspire belief. The prosecution failed in
this respect, thus we cannot conclude without any taint of serious doubt that
inter-genital contact was at all achieved. To hold otherwise would be to
resolve the doubt in favor of the prosecution but to run roughshod over the
constitutional right of the accused to be presumed innocent.
Corazon insists that Primo did not restrain himself from
pursuing his wicked intention despite her timely appearance, thus giving her
the opportunity to fully witness his beastly act.
We are not persuaded. It is inconsistent with man's instinct
of self-preservation to remain where he is and persist in satisfying his lust
even when he knows fully well that his dastardly acts have already been
discovered or witnessed by no less than the mother of his victim. For, the
normal behavior or reaction of Primo upon learning of Corazon's presence would
have been to pull his pants up to avoid being caught literally with his pants
down. The interval, although relatively short, provided more than enough
opportunity for Primo not only to desist from but even to conceal his evil
design.
What appears to be the basis of the conviction of the
accused was Crysthel's answer to the question of the court —
Q: Did the penis of Primo touch your organ?
A: Yes, sir.
But when asked further whether his penis penetrated her
organ, she readily said, "No." Thus —
Q: But did his penis penetrate your organ?
A: No, sir. 20
This testimony alone should dissipate the mist of confusion
that enshrouds the question of whether rape in this case was consummated. It has
foreclosed the possibility of Primo's penis penetrating her vagina, however
slight. Crysthel made a
categorical statement denying penetration, 27 obviously induced by a question propounded to her
who could not have been aware of the finer distinctions between touching and
penetration. Consequently, it is improper and unfair to attach to this reply of
a four (4)-year old child, whose vocabulary is yet as underdeveloped as her sex
and whose language is bereft of worldly sophistication, an adult interpretation
that because the penis of the accused touched her organ there was sexual entry.
Nor can it be deduced that in trying to penetrate the victim's organ the penis
of the accused touched the middle portion of her vagina and entered the labia
of her pudendum as the prosecution failed to establish sufficiently that Primo
made efforts to penetrate Crysthel. 22 Corazon did not say, nay, not
even hint that Primo's penis was erect or that he responded with an erection.
23 On the contrary,
Corazon even narrated that Primo had to hold his penis with his right hand,
thus showing that he had yet to attain an erection to be able to penetrate his
victim.
Antithetically, the possibility of Primo's penis having breached Crysthel's vagina is
belied by the child's own assertion that she resisted Primo's advances by
putting her legs close together; 24 consequently, she did not feel any intense pain but just
felt "not happy" about what Primo did to her. 25 Thus, she only shouted
"Ayo'ko, ayo'ko!" not "Aray ko, aray ko!" In cases
where penetration was not fully established, the Court had anchored its
conclusion that rape nevertheless was consummated on the victim's testimony
that she felt pain, or the medico-legal finding of discoloration in the inner
lips of the vagina, or the labia minora was already gaping with redness, or the
hymenal tags were no longer visible. 26 None was shown in this case. Although a
child's testimony must be received with due consideration on account of her
tender age, the Court endeavors at the same time to harness only what in her
story appears to be true, acutely aware of the equally guaranteed rights of the
accused. Thus, we have to conclude that even on the basis of the testimony of
Crysthel alone the accused cannot be held liable for consummated rape; worse,
be sentenced to death.
Lastly, it is pertinent to mention the medico legal
officer's finding in this case that there were no external signs of physical
injuries on complaining witness' body to conclude from a medical perspective
that penetration had taken place. As Dr. Aurea P. Villena explained, although
the absence of complete penetration of the hymen does not negate the
possibility of contact, she clarified that there was no medical basis to hold that there was sexual
contact between the accused and the victim. 27
In cases of rape where there is a positive testimony and a
medical certificate, both should in all respects complement each other;
otherwise, to rely on the testimonial evidence alone, in utter disregard of the
manifest variance in the medical certificate, would be productive of
unwarranted or even mischievous results. It is necessary to carefully ascertain
whether the penis of the accused in reality entered the labial threshold of the
female organ to accurately conclude that rape was consummated. Failing in this,
the thin line that separates attempted rape from consummated rape will
significantly disappear.
Under Art. 6, in relation to Art. 335, of the Revised Penal
Code, rape is attempted when the offender commences the commission of rape
directly by overt acts, and does not perform all the acts of execution which
should produce the crime of rape by reason of some cause or accident other than
his own spontaneous desistance. All the elements of attempted rape — and only
of attempted rape — are present in the instant case, hence, the accused should
be punished only for it.
The penalty for attempted rape is two (2) degrees lower than
the imposable penalty of death for the offense charged, which is statutory rape
of a minor below seven (7) years. Two (2) degrees lower is reclusion temporal,
the range of which is twelve (12) years and one (1) day to twenty (20) years.
Applying the Indeterminate Sentence Law, and in the absence of any mitigating
or aggravating circumstance, the maximum of the penalty to be imposed upon the
accused shall be taken from the medium period of reclusion temporal, the range
of which is fourteen (14) years, eight (8) months and (1) day to seventeen (17)
years and four (4) months, while the minimum shall be taken from the penalty
next lower in degree, which is prision mayor, the range of which is from six
(6) years and one (1) day to twelve (12) years, in any of its periods.
WHEREFORE, the Decision of the court a quo finding accused PRIMO "SONNY" CAMPUHAN
Y BELLO guilty of statutory rape and sentencing him to death and to pay damages
is MODIFIED. He is instead found guilty of ATTEMPTED RAPE and sentenced to an
indeterminate prison term of eight (8) years four (4) months and ten (10) days
of prision mayor medium as minimum, to fourteen (14) years ten (10) months and
twenty (20) days of reclusion temporal medium as maximum. Costs de oficio.
SO ORDERED.
Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza,
Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago and De Leon,
Jr., JJ., concur.
Pnganiban, J., in the result.
