Wednesday July 18, 2018

Seares: ‘Insertion of finger’ in rape

WHEN the prosecutor announced that the charge against singing champion Noven Belleza was downgraded from rape to “sexual assault,” people were curious about the reason.

The prosecutor learned during inquest that Belleza didn’t have sex with the woman victim. He allegedly just inserted his finger into her genital.

But the charge is still rape: not rape by carnal knowledge but rape by sexual assault, the second kind of rape under the expanded law.

Miriam’s proposal

Belleza’s lawyer might be tempted to raise a technicality: the law (Republic Act #8353, The Anti-Rape Act of 1997) doesn’t mention “finger” in rape by sexual assault. It says “any instrument or object” inserted by a person into the “genital or anal orifice” of another person. Nothing about a finger in a situation where the man doesn’t use his sex organ for the violation.

The late Miriam Defensor-Santiago, then a senator, saw the loophole and tried to plug it in 2007. Her bill, SB #26643, sought to amend the affected part of the Anti-Rape Law by adding after the phrase “any instrument or object” the words “OR ANY OTHER PART OF THE BODY” (capitalized by Santiago in her bill).


She said the amendment would prevent a misinterpretation of the law. Penal laws are interpreted strictly and defense lawyers like Belleza’s counsel might argue that a finger is not “an instrument or object.” Also, the senator said, the addition would incorporate the Supreme Court ruling in People vs. Camilo Soriano [GR #142779-9 (2002)].

Most probably the law wasn’t amended. If it was, the present version of the Anti-Rape Law would now bear the amendment. It does not.

Flight of passion

The Santiago bill would’ve corrected the law and make it wider in scope and more explicit. Besides, the gap or ambiguity may set off other contentious situations. Like: a toe or an elbow or whatever other body part may be used in a perverse rush of passion.

Santiago anticipated the problem. As a former judge, she could see the clash of arguments that may be avoided by using clear and unambiguous words in the law.