NEW LANDMARK RULING ON RAPE

(People v. Agao, Oct. 4, 2022, En Banc)

What consummates rape: Touching or slightest penetration?

In its past decisions, the Supreme Court consistently held that rape is
consummated when the offender had carnal knowledge of the victim.

Carnal knowledge is defined as when the man (offender/rapist) had sexual

bodily connections with the woman (victim). It has been invariably
described that the mere touching of the erect penis on the labia majora
(lips) of the female genitalia, or the slightest penetration of the labia,
consummates the rape.

In other words, to consummate the rape, it is not necessary that there

should be full penetration of the vagina or ejaculation of the penis.

In October last year, this concept of carnal knowledge was revisited. The
Court overhauled the meaning of this element of rape.

In the said new jurisprudence, rape is now consummated as soon as 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.

Otherwise put, mere introduction, however slight, INTO THE CLEFT of the
labia majora by a penis that is capable of penetration, regardless of whether
such a penile penetration fully achieved, consummates the rape.

This 2022 en banc ruling of the Supreme Court clarified (harmonized) its
past rulings as to when the crime of rape is considered consummated.
These decisions presented varying jurisprudence on the matter. Some said
that rape is consummatted once there is touching of the erect penis on the
labia majora. Others, however, instructed us that there must be slightest
penetration of the labia majora to consummate rape.

Is it touching or slightest penetration?

The present rules clarify that when jurisprudence refers to "touching", it is

not sufficient that the penis grazed over the pudendum (the fleshy surface
of the labia majora). What this new jurisprudence tells us about
consummated rape when it describes a penis touching the vagina is the
penis PENETRATING the CLEFT of the labia majora, however minimum or
slight.

In other words, it was emphasized that "mere touch" of the penis on the
labia majora contemplates not mere SURFACE TOUCH OR SKIN
CONTACT but the SLIGHTEST PENETRATION OF THE VULVAL OR
PUDENDAL CLEFT, however minimum in degree.
The term "cleft" has never been mentioned in the past decisions of the
Court. Over the years, it used to describe consummated rape as the mere
touching of the erect penis or slightest penetration of labia majora. the
usual reference was the "labia majora" of the female genitalia as the part
that must be touched or penetrated. Simply put, the term "cleft" has never
existed in our jurisprudence on the crime of rape.

Surprisingly, the Court, through Justice Caguioa, used it for the first time in
the 2022 Agao case.

Citing American medical literature, it described cleft as one between the

"labia majora, " which is called the pudendal cleft (cleft of Venus) and it
contains and protects the other, more delicate structures of the vulva. These
are lined by skin on the outside and basal layer of cells, a thin granular layer
on the insides.

With this ruling, it is clear now that in order to consummate the crime of
rape:

1. There must be the SLIGHTEST PENETRATION of the VULVAL CLEFT

("hiwa" in Pilipino);

2. Slightest penetration, not TOUCHING of the labia majora, is the

operative act that consummates the rape; and

3. It is no longer the labia majora that is required to be penetrated but the

PUDENDAL or VULVAL CLEFT of the female genitalia.