SC tackles language to describe rape

MANILA, Philippines — In a landmark decision, the Supreme Court has stressed the need for clear language in rape convictions as it described in graphic detail how rape is consummated through penetration or touch of the sexual organs.

However, Justice Marvic Leonen dissented from the majority opinion, saying that “rape is rape” and warned against trivializing a rape survivor’s experience.

In the 40-page decision penned by Justice Alfredo Benjamin Caguioa, the high court affirmed the 2017 conviction by a Valenzuela trial court of a man who raped the 10-year-old daughter of his then live-in partner.

The high court took the case as an opportunity to clarify the “minimum physical threshold that distinguishes between attempted and consummated rape” and described what constitutes “the slightest touch” of a penis on a vagina that would constitute rape.

The court was prompted to clarify what constitutes rape due to a string of cases that veered away from the jurisprudence and found a suspect guilty of attempted rape even when there is evidence the act was consummated.

The ponencia said rape is consummated and not attempted when “the penis penetrates the cleft of the labia majora, also known as the vulval or pudendal cleft, or the fleshy outer lip of the vulva, in even the slightest degree.”

“Simply put, 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,” read the ponencia, concurred in by Chief Justice Alexander Gesmundo and Justices Maria Filomena Singh, Ramon Paul Hernando, Rodil Zalameda, Mario Lopez, Samuel Gaerlan, Ricardo Rosario, Japar Dimaampao and Jose Midas Marquez.

Three justices did not take part.

Rape is merely attempted when a penis “graz(ed)?the fleshy portion, not the vulval cleft cleft of the labia majora? 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,” said the court.

The anatomical discussion on what constitutes rape did not sit well with Leonen, who called the ruling a “step back toward the previous heteronormative – andfrankly, misogynistic – definitions of rape.”

Blame patriarchy

In his 12-page dissenting opinion, Leonen said the ponencia should have just upheld previous doctrine on the consummation of rape without going into a “pseudo-medical analysis, with the sole purpose of lessening a rapist’s liability.”

He urged the court to view the crime of rape under the Revised Penal Code “from the eyes of the victim, not from the point of view of the perpetrator,” warning that the graphic descriptions could be used by the defendants to further muddle the crime by delving into details of penetration.

“All rape victims suffer the same indignity. To continue the discussion started by the ponencia would be to accept that the victim will now bear the burden to prove that the penis touched the ‘outer fleshy part’ of her vagina and not merely the muscular part of the pudendum,” Leonen said.

He also warned that the decision “places the blame on the victim should she fight back” which could result in a rape being merely “attempted” because of the slight touch of genitals.

It is patriarchy that should be blamed for the prevalence of rape, an issue which was not raised in the ponencia, Leonen lamented.

“Continued male violence in our patriarchy hides within subtle legal distinctions which burden the victim disproportionately. In this case, the ponencia uses an amorphous yet misguided application of the rights of the accused without understanding the full patriarchal concept of rape,” he said.