SC: “Slightest degree” of penetration of male genitalia to cleft labia majora is considered rape

The Supreme Court (SC) ruled in a landmark case that "even the slightest degree" of penis penetration into the cleft of the labia majora, or the fleshy folds of tissue that enclose and protect the other external genital organs, is considered rape.

The said clarification was promulgated in the case of a certain Efren Agao,  who in 2014 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 a 2014 rape case, which held that carnal knowledge, as an element of rape, does not require full penetration of the female organ. The RTC judgment was affirmed by the Court of Appeals. When the case was elevated to the SC, the High Court sustained the ruling against Agao.

“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,” it ruled.

The Court emphasized that said clarification is necessary, 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. It also implored the 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.”

However, in the dissent of Senior Associate Justice Marvic Leonen, he argued that rape is no longer a crime against chastity as it is now a crime against the dignity of a person, stating that “rape is rape.”

“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,” he said.

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