Dear PAO,

My daughter is only 8 years old. She told me that a neighbor pinned her down and kept “trying” to insert his penis, but she said it “wouldn’t go in” because it was painful, and she was crying. The medico-legal said there was no clear sign of deep penetration. The investigator mentioned a Supreme Court ruling where repeated touching can already be considered rape for very young children. Totoo po ba ito? Paano magiging rape kung walang “successful” penetration?

-Rosalie

Dear Rosalie,

Under Article 266-A of Republic Act 8353, or otherwise known as the Anti-Rape Law of 1997, rape by sexual intercourse is committed when a man has carnal knowledge of a woman through force, threat, intimidation, or when the victim is deprived of reason or is under 12 years, among others, as follows:

“Article 266-A. Rape; When and how committed. – Rape is committed –

“1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:

“a) Through force, threat, or intimidation.

“b) When the offended party is deprived of reason or otherwise unconscious.

“c) By means of fraudulent machination or grave abuse of authority.

“d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present.”

In the case of People of the Philippines vs. Agao (GR 248049, Oct. 4, 2022; penned by Associate Justice Alfredo Benjamin Caguioa), the Supreme Court recognized the difficult reality of a very young child victim’s (pre-puberty) physical immaturity and underdeveloped vaginal canal such that “full” penetration may be physically impossible, even if the offender is exerting force and repeatedly attempting penetration. To wit:

“The Court deems it high time, as well, to further calibrate this genital contact threshold and rule, as it does, that for child victims in the pre-puberty age, the genital contact threshold for a finding of consummated rape through penile penetration is deemed already met once the entirety of the prosecution evidence establishes a clear physical indication of the inevitability of the minimum genital contact threshold as clarified here, if it were not for the physical immaturity and underdevelopment of the minor victim’s vagina, which may include repeated touching of the accused’s erect penis on the minor victim’s vagina and other indicative acts of penetration.

“The Court marks the ages of nine years old and below as the age range when the ‘repeated touching’ test is to be applied since, according to medical literature, particularly the mainly referenced Nelson Textbook of Pediatrics, the first sign of puberty in girls occurs between 10 and 11 years old. xxx

“The Court takes judicial notice that in these cases, due to the underdeveloped genitalia of child victims in the pre-puberty age, an attempt of the penis to penetrate will already be likely indicative, at the very least, of the penis’ introduction to the vulval cleft of the victim’s vagina, with penetration considered made if it were not for the natural resistance of the victim’s organ due to biological immaturity.”

Thus, the special rule for very young victims, like in your 8-year-old daughter’s case, repeated rubbing of the perpetrator’s penis may already constitute consummated rape because she falls within what the high court described as pre-puberty age. In such cases, the high court recognized a practical medical reality that full penetration may be physically impossible due to the child’s immaturity and underdevelopment.

We hope that we were able to answer your queries. This advice is solely based on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Thank you for your continued trust and support.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected].