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When Is It Considered Rape? Supreme Court Rules No Penetration Needed

‘No amount of anatomical discourse should ever erase the heinousness of this crime.’
Supreme Court ruling on rape
PHOTO: Unsplash

TW: rape, sexual assault

Over the past couple of years, our society has been emphasizing the importance of sexual consent more than ever in history. This movement strengthens the laws related to sexual assault and rape, especially in a country where cases against women still propagate the news cycle from time to time.

On March 31, 2023, the Supreme Court released a landmark decision detailing what consummates rape, clarifying that "even the slightest degree" of penis penetration into the cleft of the labia majora, or the fleshy outer lip of the female's vulva, is considered rape.

The decision sought to "fine tune" what it said was the "anatomically accurate" minimum threshold of contact for rape through sexual intercourse. "[A] mere introduction, however slight, into the cleft of the labia majora by a penis that is capable of penetration, regardless of whether such penile penetration is thereafter fully achieved, consummates the crime of rape," the high court said in the 40-page ruling penned by Associate Justice Alfredo Benjamin Caguioa.


According to the SC decision, the phrase "mere touching" referred to in jurisprudence does not refer to the penis only scratching the fleshy surface of the labia majora. "[W]hat jurisprudence considers consummated rape when it describes a penis touching the vagina as the penis penetrating the cleft of the labia majora, however minimum or slight," it clarified.

How different is attempted rape from consummated rape?

The Supreme Court said that the penis “grazing” the fleshy portion, not the vulval cleft of the labia majora—also called the pudendal cleft or ''cleft of Venus"—would only constitute attempted rape and not consummated rape.

Why did the Supreme Court clarify the rule?

The high court said it needed to use straightforward language to avoid the "physical and legal negation of the concept of attempted rape" and to refine the current jurisprudence on rape, which was previously a grey area. "[I]f any nature and degree of touch of a penis of the female genitalia can be considered consummated rape, then effectively, all sexual assaults involving a penis and the vulva would only either be acts of lasciviousness or consummated rape, with no gradation of the attempted stage in between," it said.

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Further, the new ruling guarantees that no rape victim had to go through the tedious and often traumatizing process of recounting the specific details of the crime.

"No Such Thing As Attempted Rape"

In a 12-page dissent, Senior Associate Justice Marvic Leonen argued that rape is no longer a crime against chastity as it is now a crime against a person's dignity. "There is no such thing as attempted rape. All rape is rape. All rape violates dignity," he said, explaining that the discussion on which part of the victim's vagina was violated was "not a progressive step" and "the finer points of the parts of the vagina touched by the penis [are] irrelevant."

"No amount of anatomical discourse should ever erase the heinousness of this crime. This Court takes a step back towards the previous heteronormative, and, frankly, misogynistic definitions of rape. It likewise undermines the severity of the trauma suffered by sexually abused women and children," he concluded.


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