Doctrine: Attempted Rape

34-All. G. R. No. 129433, March 30, 2000

People, plaintiff-appellee, vs Primo Campuhan Y Bello, accused-appellant
Bellosillo, J.
Facts: According to the mother of the victim, the accused was seen kneeling in front of the
victim with his pants pulled down and the pajamas of the victim removed, forcing his penis to
the vagina of her 4-year old child. Upon trial, when the victim was questioned, she confirmed
that the penis of the accused indeed touched her organ but that it did not penetrate. And that she
never felt pain but just not happy, thus, she only shouted for “ayoko na, ayoko na” instead of
“aray ko, aray ko” nor the medico-legal findings found discoloration in the lips of the vagina nor
hymenal tags were no longer visible.
Issue: WON the accused should be charged with the crime of attempted rape.
Ruling: Under Art. 6, in relation to Art. 335, of the RPC, rape is attempted when the offender
commences the commission of rape directly by overt acts, and does not perform all the acts of
execution which should produce the crime of rape by reason of some cause or accident other than
his own spontaneous desistance. All the elements of attempted rape- and only of attempted rape-
are present in the instant case, hence, the accused should be punished only for it.
In People v Dela Pena, it was consummated and attempted rape was clarified, 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, for and accused to be convicted of
consummated rape. Absent any showing of the slightest penetration of the female organ, i.e.,
touching of either labia of the pudendum by the penis, there can be no consummated rape; at
most, it can only be attempted rape, if not acts of lasciviousness.