(Trigger Warning: This article contains sensitive and delicate topic which may be disturbing to some readers. Reader’s discretion is advised.)
To begin with, I found inspiration on this issue from a Facebook post of one of the criminal law luminaries of our country, Prosecutor Fred Nojara. I asked permission from him that his discussion on Attempted Rape shall be the focus of this article as I found it educational for both law students and laypersons.
His post pertains to a 16-year-old girl who was allegedly picked up by a tricycle driver in Antipolo City. However, the driver of the said tricycle brought the passenger to a hotel against the girl’s will. Fortunately, the receptionist of the said motel noticed that the girl was uneasy, thus, this caused the said tricycle driver to leave and purportedly “abort his plan”.
Fuming, our social media netizens who learned about the said news contended that the said tricycle driver should be prosecuted for attempted rape for his act of bringing his girl-passenger to a hotel against her will. The subject of the Facebook post of Fiscal Nojara, give light to this criminal law question. May the tricycle driver be prosecuted for Attempted Rape? If not, what was the crime committed by the said tricycle driver, if any?
Jurisprudence dictates that there are two instances by which the crime of attempted rape may be committed.
First is the case with G.R. No. 262846. It discussed that in attempted rape by carnal knowledge, there is no requirement that the offender’s penis touch the victim’s genitalia or any other part of her body. Instead, what is required are over acts as by the offender in commencing the direct commission of the crime. Jurisprudence has define an overt act as some physical activity of deed, Indicating the intentions to commit a particular crime, more than a mere planning or preparation, which if carried out to its complete termination following its natural course, without being frustrated by external obstacles nor by the spontaneous desistance of the perpetrator, will logically and necessarily ripened into rape.
Second is the case of Agao vs People. In the said case it was held that “it is not sufficient that the penis grazed over the pudendum or the fleshy surface of the labia majora. Instead what jurisprudence considers as consummated rape when it describes a penis touching the vagina is the penis penetrating the cleft of the labia majora, however minimum or slight. Similarly, a mere grazing by the penis of the fleshy portion, not the vulval cleft of the labia majora, will also constitute only attempted rape and not consummated rape, since the same cannot be considered to have achieved the slightest level of penetration. Stated differently, the Court here elucidates 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.
None of the abovementioned instances where present in the Antipolo City incident, thus, attempted rape was not the crime committed. But what was the crime committed? The most suitable answer is Forcible Abduction under Article 342 of the Revised Penal Code, where its elements are as follows: (1) The taking of a woman against her will; (2) with lewd design.[1] Undoubtedly these elements are clearly present in the Antipolo City incident.
[1] G.R. No. 256301, March 01, 2023