Dear Atty Duran-Schulze,
I got touched in my private part by someone while I was sleeping, and I have evidence to prove it. There were no witnesses. I do not know what to do, is this considered rape?
You may file an information charging the person with the crime of Acts of Lasciviousness.
Acts of Lasciviousness is defined under Article 336 of the Revised Penal Code as:
Art. 336. Acts of lasciviousness. – 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.
While the elements of Acts of Lasciviousness are the following:
- the offender commits any act of lasciviousness or lewdness;
- the lascivious act is done under any of the following circumstances:
- by using force or intimidation;
- when the offended party is deprived of reason or otherwise unconscious; or
- when the offended party is under twelve (12) years of age; and
- the offended party is another person of either sex.
In the case of Norberto Bartolome vs People of the Philippines, G.R. No. 166441, October 08, 2014, the Supreme Court defined Lewd as obscene, lustful, indecent, lecherous,; it signifies that form of immorality that has relation to moral impurity; or that which is carried on in a wanton manner. Moreover, for a person to be guilty of acts of lasciviousness, the lewdness must be committed without the manifest intention to lie with you. Here, since the act of touching you is considered as a lascivious conduct, the crime committed is Acts of Lasciviousness.
THE DIFFERENCE BETWEEN ATTEMPTED RAPE AND ACTS OF LASCIVIOUSNESS. “The intent of the offender to lie with the female defines the distinction between attempted rape and acts of lasciviousness. The felony of attempted rape requires such intent; the felony of acts of lasciviousness does not. Only the direct overt acts of the offender establish the intent to lie with the female. However, merely climbing on top of a naked female does not constitute attempted rape without proof of his erectile penis being in a position to penetrate the female’s vagina”- (Bartolome vs. PP, G.R. No. 166441, October 8, 2014)
Rape, on the other hand, is defined as:
Article 335. When and how rape is committed. — Rape is committed by having carnal knowledge of a woman under any of the following circumstances:
- By using force or intimidation;
- When the woman is deprived of reason or otherwise unconscious; and
- When the woman is under twelve years of age, even though neither of the circumstances mentioned in the two next preceding paragraphs shall be present.
x x x x
In the same case mentioned above, the Supreme Court stated:
The basic element of rape then and now is carnal knowledge of a female. Carnal knowledge is defined simply as “the act of a man having sexual bodily connections with a woman,”16 which explains why the slightest penetration of the female genitalia consummates the rape. In other words, rape is consummated once the penis capable of consummating the sexual act touches the external genitalia of the female.17 In People v. Campuhan,18 the Court has defined the extent of “touching” by the penis in rape in the following terms:
[T]ouching when applied to rape cases docs 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, as in this case. 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 an accused to be convicted of consummated rape. As the labias, which are required to be “touched” by the penis, are by their natural situs or location beneath the mons pubis or the vaginal surface, to touch them with the penis is to attain some degree of penetration beneath the surface, hence, the conclusion that touching the labia majora or the labia minora of the pudendum constitutes consummated rape.”
With regard to your case, your sworn statement detailing the acts committed against you and the documentation which you have saved will be used as pieces of evidence to support your case.