Lascivious conduct through fraudulent machination

QUESTION: “A” is married to “X”. “Z” pretended to be his twin brother, “X”, and by that ploy he was able to freely undress “A”, kiss her nipples and rub his erect penis on the mons pubis of her vulva. After a few minutes, “Z” ejaculated. The crime committed is

(A) Rape since under RA No. 8353 this crime can be committed by means of fraudulent machination.

(B) Attempted rape because there is intent to have sexual intercourse on the part of “Z”. 

(C) Acts of lasciviousness because “Z” committed lascivious conduct upon “A” without intent to have sexual intercourse.

(D) Unjust vexation because “Z” did not employ violence or intimation, and hence, he could not be held liable for acts of lasciviousness.

While it is true that pretending to be a husband of the victim constitutes fraudulent machination, which is a mode of committing rape under RA No. 8353, nevertheless “Z” cannot be held liable for consummated rape. Jurisprudence dictates that the labia majora must be entered for rape to be consummated, and not merely for the penis to stroke the surface of the female organ.  Thus, a grazing of the surface of the female organ or touching the mons pubis of the pudendum is not sufficient to constitute consummated rape. Absent any showing of the slightest penetration of the female organ, i.e., touching of labia majora or minora of the pudendum by the penis, there can be no consummated rape (People vs. Campuhan, G.R. No. 129433, March 30, 2000, En Banc). Hence, “A” is not the answer.

“Z” cannot be held liable for attempted rape since he did not cause his erect penis to enter the labia of “A” in the midst of opportunity thereof. This indicates lack of intent to have sexual intercourse, which is an indispensable element of attempted rape (People vs. Abanilla, G.R. Nos. 148673-75, October 17, 2003). Hence, “B” is not the answer.

Under Article 336 of the Revised Penal Code, any person who shall commit any act of lasciviousness upon other persons of either sex, under any of the circumstances mentioned in the preceding article, shall be punished by prision correccional. Article 335, which is the preceding article of Article 336, is the definitional provision of rape. Hence, the modes of committing rape such as use of force or intimidation are the same as those of committing acts of lasciviousness.

RA No. 8353 reclassified rape as crime against persons and made it punishable under Article 266-A of the Revised Penal Code. Under this provision, fraudulent machination is a new mode of committing rape. However, since this new mode is not found under Article 335 of the Code, it cannot be treated as mode of committing acts of lasciviousness. The terms “the preceding article” mentioned in Article 336 still pertains to Article 335 and not Article 266-A. 

In Flordeliz vs. People, G.R. No. 186441, March 3, 2010 - The crime of Acts of Lasciviousness has the following elements: (1) That the offender commits any act of lasciviousness or lewdness; (2) That it is done under any of the following circumstances: a. By using force or intimidation; or b. When the offended party is deprived of reason or otherwise unconscious; or c. When the offended party is under 12 years of age; and (3) That the offended party is another person of either sex.

In this case, “Z” committed lascivious conduct upon “A” by means of fraudulent machination and not by using force or intimidation. Hence, “Z” cannot be held liable for acts of lasciviousness. Without employing force or intimidation, acts of lewdness constitute the crime of unjust vexation (See: People vs. Bernaldo, CA-G.R. No. 26102-R, Oct. 31, 1959). Hence, the answer is “D” and not “C”.

Marlo Campanilla

Presiding Judge

Metropolitan Trial Court

Branch 83, Caloocan City