MANILA, Philippines – The Supreme Court (SC), the country’s High Court, recently publicized its ruling that clarified when rape is committed through penile penetration.

Penned by Associate Justice Alfredo Benjamin Caguioa, the SC’s 40-page decision affirmed the conviction by a Valenzuela Regional Trial Court and the Court of Appeals of a certain Efren Agao of two counts of rape. The High Court explained that even the slight introduction of a penis to the cleft of a female’s labia majora already consummates rape.

But the SC also clarified that the “mere touch” of a penis to the labia majora means the slightest penetration of the vulval or pudendal cleft, and not mere surface touch or skin contact. Because of the lack of clarity, there were cases where perpetrators were convicted of attempted rape only.

Chief Justice Alexander Gesmundo, and Associate Justices Ramon Paul Hernando, Rodil Zalameda, Mario Lopez, Samuel Gaerlan, Ricardo Rosario, Japar Dimaampao, and Jose Midas Marquez concurred in the ruling. Associate Justice Maria Filomena Singh was on official business, but left her vote to concur. The ruling did not bear the signatures of Associate Justices Henri Jean Paul Inting, Jhosep Lopez, and Antonio Kho Jr. who were all on official business.

Meanwhile, Associate Justice Amy Lazaro-Javier took no part in the decision. Senior Associate Justice Marvic Leonen is the only justice who dissented.

But why did the senior magistrate dissent?

‘Downplays rape’

In his separate dissenting opinion, Leonen said that rape is “a crime because it is a violation of a person’s consent to intimacy and sexual relations.” He also said that rape is no longer a crime against chastity, but a crime against the dignity of a human being.

The senior associate justice said that the experience of a rape survivor cannot be trivialized by “abstract invocations” of due process and references to anatomical drawings. Referring to the ruling, Leonen said he failed to see why it was necessary to discuss the various degrees of penile penetration “in the guise” of clarifying the “perceived uncertainty” in the penalties against the said crime.

“Regretfully, the discussion regarding the anatomy of the vagina and its relation to penetration reverses established progressive doctrine, downplays the crime of rape, and makes invisible the sordid violation of the dignity of the victim,” Leonen explained.

‘No attempted rape’

In his dissent, Leonen said “there is no such thing as attempted rape,” adding that all rape is rape. The SC justice added that the finer points of the vagina’s parts touched by the penis is irrelevant.

Leonen also noted that the ponencia is not a progressive step and will license the kind of masculinity that downgrades women to sexual objects, “whose value is reduced to their vagina and the pleasure men derive from them.”

He said he agrees with the findings, where the courts found the respondent guilty of two counts of rape, including the modification of the other rape charge from statutory rape to simple rape.

But the senior magistrate noted that the ponencia went further than the factual findings and tried to clarify the supposed confusion between attempted rape and consummated rape.

In his further discussion, Leonen cited various court rulings and the Philippines’ obligations under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). The senior associate justice cited the CEDAW’s recommendation to its state parties, which is to “ensure that laws against family violence and abuse, rape, sexual assault and other gender-based violence give adequate protection to all women, and respect their integrity and dignity.”

Leonen said rape should be interpreted as a consent-based offense, and not as honor-based. He added that rape is an exercise of power over another person, rather than a purely sexual act.

The SC justice said people have full autonomy to decide who they can be intimate with, and rape is a crime because it violates that autonomy. He added the ponencia also provided a “pseudo-medical analysis” that lessens a rapist’s liability, adding that the “exhaustive and extensive” description of vaginal parts to determine if rape is consummated limits the scope of the said crime.

“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.

The senior magistrate added: “By unnecessarily belaboring on the different physiological aspects of her vagina in the guise of protecting the accused’s rights from ‘the [considerable] difference in the lengths of period of incarceration’ between the attempted and consummated rape of a minor, this Court takes a step back towards the previous heteronormative – and frankly, misogynistic – definitions of rape.” – Rappler.com