When is rape consummated? SC explains in landmark ruling

Rowegie Abanto, ABS-CBN News

Posted at Apr 01 2023 08:09 PM | Updated as of Apr 01 2023 10:35 PM

The Supreme Court building on Padre Faura, Manila on Aug. 24, 2022. George Calvelo, ABS-CBN News/File
The Supreme Court building on Padre Faura, Manila on Aug. 24, 2022. George Calvelo, ABS-CBN News/File

Leonen: Clarification 'not a progressive step'

MANILA — The Supreme Court has clarified in a landmark decision that "even the slightest degree" of penis penetration into the cleft of the labia majora, or the fleshy outer lip of the female's vulva, is considered rape.

In a decision promulgated on October 4, 2022 but only made public on Friday, the Supreme Court sought to "fine tune" what it said was the "anatomically accurate" minimum threshold of contact for rape through sexual intercourse.

It cited an article titled "Anatomy of the Vulva" by Aikaterini Deliveliotou and George Creatsas in discussing, with illustrations, key parts of the female genitalia for the consummation of rape.

"[A] 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," the high court said in the 40-page ruling penned by Associate Justice Alfredo Benjamin Caguioa. 

Labia majora is the outer folds of the vulva and is also called the "outer lips."

According to the Supreme Court decision, the phrase "mere touching" referred to in jurisprudence does not mean that the penis only scratched the fleshy surface of the labia majora. 

"[W]hat 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," it clarified.

When it is attempted rape? The Supreme Court said that "grazing" by the penis of the fleshy portion, not the vulval cleft of the labia majora — also called the pudendal cleft or ''cleft of Venus" — would only constitute attempted rape and not consummated rape.


The high court said it is using straightforward language to avoid the "physical and legal negation of the concept of attempted rape" and to refine the current jurisprudence on rape.

"[I]f any nature and degree of touch of a penis of the female genitalia can be considered consummated rape, then effectively, all sexual assaults involving a penis and the vulva would only either be acts of lasciviousness or consummated rape, with no gradation of the attempted stage in between," it said.

Aside from serving as a guide to courts for the resolution of rape cases, the clarification seeks to ensure that the conviction and the appropriate penalty are not withheld due to perceived uncertainty, the Supreme Court said.

It would also guarantee that no rape victim has to face the "sordid and unnecessary" task of recounting the specific details of the crime.


The clarification stemmed from the 2014 rape case of Efren Agao, who was convicted of 2 counts of statutory rape by the Branch 172 of the Valenzuela Regional Trial Court.

The ruling was upheld by the Court of Appeals in 2019 which prompted Agao to bring the case to the Supreme Court.

The Supreme Court, while affirming the Valenzuela RTC's conviction of Agao of 2 counts of statutory rape, modified the lower courts' rulings by citing the clarified threshold and found Agao guilty of 1 count of statutory rape. 

The other charge was reduced to 1 count of simple rape because it happened when the victim was 13 years old, according to the high court.


In a 12-page strongly worded dissent, Senior Associate Justice Marvic Leonen argued that rape is no longer a crime against chastity as it is now a crime against the dignity of a person. 

"There is no such thing as attempted rape. All rape is rape. All rape violates dignity," Leonen said, adding that the discussion on which part of the victim's vagina was violated was "not a progressive step" and served as a platform to determine how the court could "lessen" the rapist's punishment.

"The finer points of the parts of the vagina touched by the penis [are] irrelevant," he said.

Leonen noted that the Supreme Court "in a long line of cases" declared that the crime of rape is punishable because it is a violation of the victim's dignity.

"Thus, rape should be interpreted not as an honor-based offense, but as a consent-based offense. It is an exercise of power over a person, rather than a purely sexual act," the justice said.

"No amount of anatomical discourse should ever erase the heinousness of this crime," he said.

Leonen pointed out that the redefinition of the crime of rape, including more gender-sensitive laws, required the examination of "human sexuality and sexual acts as more than just unwanted penile penetration."

"This Court takes a step back towards the previous heteronormative, and frankly, misogynistic definitions of rape. It likewise undermines the severity of the trauma suffered by sexually abused women and children," he said.