What Is Unlawful Carnal Knowledge | If The Victim Is A Minor

What is unlawful carnal knowledge? Many sexual crimes include the element of “carnal knowledge.” Certain jurisdictions use the terms “sexual intercourse” or “sexual abuse” in their criminal codes and penal statutes, but the phrase “carnal knowledge” is rarely used. When it is, it usually denotes forcible sexual activity.

What is unlawful carnal knowledge | What do we apply, RA 8353 or 7610, if minor

Our national hero, Dr. Jose Rizal once said, “Ang kabataan ang pag-asa ng bayan.” Young people represent the future. Minors are one of society’s main agents of change and progress. Hence, children and youth need to be taken care of by human society.

Sadly, some adults abuse children sexually to savor themselves of sexual pleasures and satisfactions. On a daily basis, some children suffered emotional, sexual, and physical pain. Especially, rape and sexual abuse are worst thing.

To inform the reader about these cruel crimes, in this article, the author will define rape and sexual child abuse, what laws exist in our country that protect children from such crimes. The author will tackle and differentiate the law existing in Philippines relating to rape of minor and child sexual abuse and the rules made by the Court in determining the proper crime committed against a minor.

Republic Act No. 7610 which is also known as “Special Protection of Children Against Abuse, Exploitation and Discrimination Act” is a law providing special protection to children from all firms of abuse, neglect, cruelty exploitation and discrimination and other conditions, prejudicial their development.((RA 7610))

RA 7610 declares that the State is responsible to protect and rehabilitate children gravely threatened or endangered by circumstances which affect or will affect their survival and normal development and over which they have no control.

On the other hand, Republic Act No. 8353 also known as “The Anti-Rape Law” amended the crime of rape under the Revised Penal Code. Rape, being one of the most terrible crimes, was expanded as to its coverage. Previously, it was a crime against chastity but was now considered as a crime against person.

The New Anti-Rape Law of 1997: RA 8353

Before the passing of Republic Act No. 8353((RA 8353)) or the New Anti-Rape Law, rape was used to be a crime against chastity under Title 11 of the Code. However, on September 30, 1997, Former President Fidel V. Ramos repealed Rape under RPC and reclassify it as a crime against person under Title 8 of the Code. He also introduced four new articles, Articles 266-A, 266-B, 266-C and 266-D in the Revised Penal Code.

Pursuant to the enactment of RA 8353, the concept of rape was upgraded and revolutionized. Traditionally, rape can only be committed through sexual intercourse or through carnal knowledge. But, in the new anti-rape law, rape by sexual assault has been introduced. The crime of rape expanded to cover gender free rape which means women are not the only victim of rape but also men. In other words, the crime of rape can now be committed by a male or a female.

Kinds of Rape under RA 8353

• Rape by Sexual Intercourse

Article 266-A of the Revised Penal Code((Article 266-A, Act. No. 3815 or “The Revised Penal Code”, as amended)) provides that rape is committed –

1. By a man who shall have carnal knowledge of a woman under any of the following circumstances:((Id.))
2. Through force, threat or intimidation;((Id.))
3. When the offended party is deprived of reason or is otherwise unconscious;((Id.))
4. By means of fraudulent machination or grave abuse of authority;((Id.))
5. When the offended party is under twelve years of age or is demented, even though none of the circumstances mentioned above be present;((Id.))

Rape by sexual intercourse is a crime committed by a man against a woman and the essential element is carnal knowledge. Hence, this crime can never be committed by a woman.

What is carnal knowledge? It is the act of man having sexual bodily connections with a woman. Carnal knowledge, unlike its ordinary connotation of sexual intercourse, does not necessarily require that the vagina be penetrated or that the hymen be ruptured.

Thus, in People v. Selfaison, et al,((G.R. No. L-14732, January 28, 1961)) the slightest penetration of the female genitalia consummates the rape. Even if the attacker’s penis capable of consummating the sexual act merely touched the external portions of the female genitalia, crime of rape is already consummated.  Moreover, the absence of spermatozoa in the vagina does not negate rape.((People vs. Canastre, G.R. No. L-2055, December 24, 1948))

What is the nature of touching? Touching when applied to rape cases does not simply mean mere epidermal contact, stroking or grazing of organs, a slight brush or a scrape of the penis on the external layer of the victim’s vagina, or the mons pubis.

There must be sufficient and convincing proof that the penis indeed touched the labias or slid into the female organ, and not merely stroked the external surface thereof. There must be at least the introduction of the male organ into the labia majora of the pudendum or vulva to be sufficient to consummate rape.((LB Reyes (2021). The Revised Penal Code. Book Two. Rex Printing Company, Inc. p. 693))

• Rape by Sexual Assault

Article 266-A of the Revised Penal Code((Art. 266-A, Act. No. 3815 or “The Revised Penal Code”, as amended)) provides that rape is committed –

2. By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another person’s mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person.((Id.))

Rape by sexual assault can be committed in two ways. First, by inserting his penis into another person’s mouth or anal orifice. Second, by inserting any instrument or object into the genital or anal orifice of another person.

Rape by sexual assault is also known as “instrument or object rape,” “gender-free rape,” or “homosexual rape.” Thus, in this rape, the offender may be a male or a female. The offended party may be a male or a female.

Is there any specific object that must be used to commit this crime? There was none. In one case decided by the Supreme Court, it can be either lit cigarette stick, tongue,((In People vs. Bonaagua, G.R. No. 188897, June 6, 2011, the accused willfully, unlawfully and feloniously inserted his tongue and finger into the genital of his daughter, a minor then eight (8) years of age, against her will and consent.

The accused was convicted for qualified rape through sexual assault with circumstance of relationship and sentenced to suffer reclusion temporal under the Revised Penal Code pursuant to Section 5 (b) of RA 7610.)) finger,((In People vs. Soriano, G.R. No. 142779-95, August 29, 2002, 388 SCRA 140, it was ruled that the appellant is guilty of rape through sexual assault when he inserted his finger into the vagina of his victim; People vs. Alfonso, G.R. No. 182094, August 18, 2010; or where the accused partially inserted his penis into the victim’s anal orifice, People vs. Lindo, G.R. No. 189818, August 9, 2010.)) or any solid object like a welding rod or any object inserted into the genital or anal orifice of another person.

Moreover, a victim need not identify what was inserted into his or her genital or anal orifice for the court to find that rape through sexual assault was committed. What is relevant is that indeed something was inserted into her vagina.

Rape by Sexual Intercourse vs. Rape by Sexual Assault

The Anti-Child Abuse Law of 1992: RA 7610

Passed on June 17, 1992, RA 7610, also known as the “Special Protection of Children Against Abuse, Exploitation and Discrimination Act,”((Republic Act No. 7610, June 17, 1992: An Act Providing For Stronger Deterrence And Special Protection Against Child Abuse, Exploitation And Discrimination, And For Other Purposes.)) was meant to advance the state policy of affording “special protection to children from all forms of abuse, neglect, cruelty, exploitation and discrimination and other conditions prejudicial to their development.

Who is a child under the Act? Section 3 of RA 7610((Id., Sec. 3 of RA 7610)) defined children as “person below eighteen (18) years of age or those over but are unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition.”

Furthermore, Sec. 5 of RA 7610 encompasses children who indulge in sexual intercourse or lascivious conduct (a) for money, profit, or any other consideration; or (b) under the coercion or influence of any adult, syndicate or group.((Id.))

Sexual Abuse under RA 7610

Article III, Section 5 (b) of the Republic Act No. 7610((Sec. 5, paragraph b of RA 7610)) reads:

Sec. 5. Child Prostitution and Other Sexual Abuse. – Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate, or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse.((Id.))

The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following:((Id.))

(b) Those who commit the act of sexual intercourse of lascivious conduct with a child exploited in prostitution or subject to other sexual abuse; Provided, That when the victims is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period.((Id.))

Under paragraph b of Section 5 of RA 7610, if there is sexual intercourse committed against a 11-year-old girl or under 12 years of age, the offender is not penalized by sexual abuse under Sec. 5 of RA 7160 but under Article 335 of the Revised Penal Code (which is now Article 266-A of the same Code or the statutory rape).

On the other hand, if there is no sexual intercourse committed against a girl under 12 years of age, it is not covered by Sec. 5 of RA 7610 but rather the offender shall be prosecuted under Article 336 (Acts of lascivious conduct) of the Revised Penal Code.

Elements of Sexual Abuse or Lascivious Conduct

Before an accused can be held criminally liable for sexual abuse or lascivious conduct under Sec. 5(b) of RA 7610, the following requisites must be met:

1. The accused commits the act of sexual intercourse or lascivious conduct;
2. The said act is performed with a child exploited in prostitution or subjected to other sexual abuse;
3. The child, male or female, is below 18 years of age.((Quimvel vs. People, G.R. No. 214497, April 18, 2017))

Anent to the first element, sexual abuse is defined under Section 2 (g) of the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases (Rules on Child Abuse Cases) as:

[T]he employment, use, persuasion, inducement, enticement or coercion of a child to engage in, or assist another person to engage in, sexual intercourse or lascivious conduct or the molestation, prostitution, or incest with children;((Section 2 (g) of the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases))

On the other hand, lascivious conduct is defined under Section 2 (h) of the Rules on Child Abuse Cases as:

[T]he intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person;((Section 2 (h) of the Rules on Child Abuse Cases))

As to the second element, children are deemed exploited in prostitution or other sexual abuse when the child indulges in sexual intercourse or lascivious conduct, (a) for money, profit, or any other consideration or (b) under the coercion or influence of any adult, syndicate or group.((Article 3, Sec. 5 of RA 7610))

Moreover, the phrase “other sexual abuse” in section 5 (b) of RA 7610, was defined in the case of Fianza vs. People.((G.R. No. 218592, August 02, 2017)) The Court explained that a child is deemed subjected to other sexual abuse when the child indulges in lascivious conduct under the coercion or influence of any adult.

The Court goes on to say that a case law((Caballo vs. People, G.R. No. 198732, June 10, 2013)) further clarifies that sexual intercourse or lascivious conduct under the coercion or influence of any adult exists when there is some form of compulsion equivalent to intimidation which subdues the free exercise of the offended party’s free will.((Ibid.))

Coercion and Influence under Sec. 5 (b) of R.A. 7610 Defined

The term “influence” means the “improper use of power or trust in any way that deprives a person of free will and substitutes another’s objective.” On the other hand, “coercion” is the “improper use of x x x power to compel another to submit to the wishes of one who wields it.((Supra., Fianza vs. People, G.R. No. 218592, August 02, 2017))

“Force and intimidation” is subsumed under “coercion and influence”

In Quimvel vs. People,((G.R. No. 214497, April 18, 2017)) the Court explained that the term “coercion and influence” as appearing in the law is broad enough to cover ”force and intimidation“. Black’s Law Dictionary defines “coercion” as “compulsion; force; duress ” while [undue] influence” is defined as ”persuasion carried to the point of overpowering the will.

On the other hand, ”force” refers to “constraining power, compulsion; strength directed to an end, while jurisprudence defines “intimidation” as “unlawful coercion; extortion; duress; putting in fear.((Ibid.))

According to Justice L. Reyes, “force, threat or intimidation” is the element of rape under the R.P.C., while “due to coercion or influence of any adult, syndicate or group” is the operative phrase for a child to be deemed “exploited in prostitution or other sexual abuse,” which is the element of sexual abuse under Section 5(b) of R.A. No. 7610.((LB Reyes (2021). The Revised Penal Code. Book Two. Rex Printing Company, Inc. p. 720.))

The coercion or influence is not the reason why the child submitted herself to sexual intercourse, but it was utilized in order for the child to become prostitute.((Ibid.))

Furthermore, the third element says that the child must be below 18 years of age. This element corresponds to the minority or age of the victim. The best evidence to prove the age of the offended party is an original or certified true copy of the certificate of live birth of such party. In the absence of such, the law allows baptismal certificates or scholastic records.

Rape under RA 8353 amending the Revised Penal Code and Sexual Abuse under Sec. 5 (b) of RA 7610

In the case of People vs. Abay,((People vs. Abay, G.R. No. 177752, February 24, 2009)) the Court ruled that under Section 5(b), Article III of RA 7610 in relation to RA 8353, if the victim of sexual abuse is below 12 years of age, the offender should not be prosecuted for sexual abuse but for statutory rape under Article 266-A(1)(d) of the Revised Penal Code and penalized with reclusion perpetua.((Ibid.))

On the other hand, if the victim is 12 years or older, the offender should be charged with either sexual abuse under Section 5(b) of RA 7610 or rape under Article 266-A (except paragraph 1[d]) of the Revised Penal Code.((Ibid.))

And:

However, the offender cannot be accused of both crimes for the same act because his right against double jeopardy will be prejudiced. A person cannot be subjected twice to criminal liability for a single criminal act. Likewise, rape cannot be complexed with a violation of Section 5(b) of RA 7610. Under Section 48 of the Revised Penal Code (on complex crimes), a felony under the Revised Penal Code (such as rape) cannot be complexed with an offense penalized by a special law.((Ibid.))

When the do you charge Rape under RA 8353 amending the RPC or Sexual Abuse under Section 5 (b) of RA 7610?

In Abay (2009),((Ibid.))the offended party was thirteen (13) years old at the time of the rape incident.  The information therein contained all the elements of Article 266-A (1) of the RPC and Section 5(b) of R.A. No. 7610.((Ibid.))

Nevertheless, the Court observed that the prosecution’s evidence only focused on the specific fact that accused therein sexually violated the offended party through force and intimidation by threatening her with a bladed instrument and forcing her to submit to his bestial designs. Thus, accused therein was convicted of the crime of rape under Article 266-A (1) of the RPC.((Ibid.))

Similarly, in People vs. Pangilinan (2011),((G.R. No. 183090, November 14, 2011)) the Court was faced with the same dilemma because of all the elements of Article 266-A (1) of the RPC and Section 5(b) of R.A. No. 7610 were present. It was ruled therein that the accused can be charged with either rape or child abuse and be convicted therefor.((Ibid.))

The Court observed, however, that the prosecution’s evidence proved that the accused had carnal knowledge with the victim through force and intimidation by threatening her with a samurai sword. Thus, rape was established. Again, the evidence in that case did not refer to the broader scope of “influence or coercion” under Section 5(b) of R.A. No. 7610.((Ibid.))

Thus, in Tubillo(2017),((People vs. Tubillo, G.R. No. 220718, June 21, 2017)) the Court held that the court must examine the evidence of the prosecution, whether it focused on the specific force or intimidation employed by the offender or on the broader concept of coercion or influence to have carnal knowledge with the victim, in order to determine whether the crime committed is rape or sexual abuse under sec. 5 (b) RA 7610.((Ibid.))

In other words, in case of conflict in the application of Section 5 (b) of RA 7610 and Rape under RA 8353 amending the RPC, it can be resolved by examining whether or not the prosecution’s evidence focused on the element of “coercion and influence” or “force and intimidation.”((Ibid.))

Nevertheless, not more than a year the focus on evidence approach used in Tubillo case was abandoned by the 2018 case of People vs. Ejercito.((G.R. No. 229861, July 02, 2018)) The Court ruled that in instances where an accused is charged and eventually convicted of having sexual intercourse with a minor, the provisions on rape under RA 8353 amending the RPC should prevail over Section 5 (b) of RA 7610.((Ibid.))

The reason for the ruling was that while RA 7610 has been considered as a special law that covers the sexual abuse of minors, RA 8353 has expanded the reach of our already existing rape laws. These existing rape laws should not only pertain to the old Article 335 of the RPC but also to the provision on sexual intercourse under Section 5 (b) of RA 7610.((Ibid.))

Rules in determining proper crime if the victim is minor

According to the book two of Justice Luis Reyes entitled The Revised Penal Code: Criminal Law, the People vs. Tulagan((Infra.)) case reconciled the provisions on Acts of Lasciviousness, Rape and Sexual Assault under the Revised Penal Code vis-à-vis Sexual Intercourse and Lascivious Conduct under Section 5 (b) of R.A. No. 7610. The said case fortifies the earlier decisions of the Court and doctrines laid down on similar cases and clarifies the nomenclature and imposable penalties.

Statutory Rape

Before the  effectivity of Republic Act No. 11648,((RA 11648)) if sexual intercourse is committed with an offended party who is a child less than 12 years old or is demented, whether or not exploited in prostitution, it is always a crime of statutory rape; more so when the child is below 7 years old, in which case the crime is always qualified rape.((People vs. Tulagan, G.R. No. 227363, March 12 2019))

However, with the enactment and effectivity of RA 11648, the age of consent, for a minor, has been raised from 12 to 16. Consequently, if a person has a carnal knowledge with a minor under 16 years of age, that will now be considered as Statutory Rape regardless of the consent of the minor to the act.

Rape

When the offended party is 12 (now 16) years old or below 18 and the charge against the accused is carnal knowledge through “force, threat or intimidation,” then he will be prosecuted for rape under Article 266-A(1)(a) of the RPC.((Ibid.))

Sexual Abuse under Section 5 (b) of R.A. No. 7610

In case of sexual intercourse with a child who is 12 (now 16)((RA 11648, Supra.)) years old or below 18 and who is deemed “exploited in prostitution or other sexual abuse,” the crime could not be rape under the RPC, because this no longer falls under the concept of statutory rape, and the victim indulged in sexual intercourse either “for money, profit or any other consideration or due to coercion or influence of any adult, syndicate or group,” which deemed the child as one “exploited in prostitution or other sexual abuse.”((Supra., People vs. Tulagan, G.R. No. 227363, March 12 2019))

Sexual Assault under Article 266-A(2) of the RPC in relation to Section 5(b) of RA 7610

If the acts constituting sexual assault are committed against a victim under 12 years of age or is demented, the nomenclature of the offense should now be “Sexual Assault under paragraph 2, Article 266-A of the RPC in relation to Section 5(b) of RA 7610.((Ibid.))

Designation of the Crime & Imposable Penalty in People vs. Tulagan

Award of Civil Indemnity and damages, summarized in People vs. Tulagan

Every person criminally liable is also civilly liable, except in those instances where there are not private offended party or parties. In cases of crimes against persons (Rape) and chastity (i.e. Acts of Lasciviousness, Seduction, Abduction, etc.) and sexual abuse, which adopted the nomenclature of penalties imposed under the Revised Penal Code, there is a corresponding civil liability, in the form of indemnity and damages. As such in People vs. Tulagan,((Ibid.)) the Supreme Court has laid down the foundation with exactitude the monetary award for those victims of such dastardly acts. Thus:

Effective amendments

On March 4, 2022, Republic Act No. 11648¹ effectively amended several provisions of the Philippines Anti-Rape Law and Anti-Child Abuse Law by increasing the age of sexual consent from 12 years old to 16 years old.

RA 11648 also amended the determination of how rape is committed. Under the amended provision rape is committed “by a person who shall have carnal knowledge of another person…”((Id.)) This changed the old provision that limits rape to certain acts done by a man on a woman.

Furthermore, Article III, Section 5 (b) of the Republic Act No. 7610 otherwise known as the Special Protection of Children Against Abuse, Exploitation and Discrimination Act are hereby amended as follows:((Id.))

(b) Those who commit the act of sexual intercourse of lascivious conduct with a child exploited in prostitution or subject to other sexual abuse; Provided, That when the victims is under twelve (16) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (16) years of age shall be reclusion temporal in its medium period.((Id.))

Conclusion

To sum it up, rape and sexual abuse, while being punished under distinct statutes, and may be regarded as separate crimes, still, they basically have the same fundamental components, except in those acts of child abuse which do not relate to sexual depredation, assault, or abuse.

If the acts constitute rape or sexual abuse, the malefactor cannot be prosecuted for both crimes under RA 7610 and the Revised Penal Code because of the rule on double jeopardy. Furthermore, the malefactor cannot be prosecuted for a complex crime because sexual abuse as an offense under special law cannot be made a component of a complex crime.

1. Supra., RA 11648 [↩]